Congratulations to Taiwan for being the first country in Asia to recognise same-sex marriages. The recent vote by Taiwan’s parliament to uphold the laws came within a day of the deadline set by that country’s Supreme Court which had outlined the ban on same-sex couples being married as unconstitutional, and gave Taiwan’s parliament a deadline to pass laws to recognise same-sex marriage, and if it didn’t, it would make its own laws on point.
Following a
public referendum, parliament then was faced with three competing bills, two of
which in effect would have defeated the effect of the Supreme Court
decision. The bill that passed was the
only one that properly recognised same-sex marriages.
Now
for the first time, same-sex couples have and are able to be married in
Taiwan. They are able to participate in
a stepparent adoption. Adoption is not
generally allowed for them. Similarly
there is no ability for them to engage in surrogacy as a married couple.
According
to the existing Act Governing the Choice of Law in Civil Matters Involving Foreign
Elements, Taiwanese citizens can only marry foreign same-sex spouses who
are citizens of countries where same-sex marriage is legal. Article 9 of the Act makes plain:
“The
legal capacity of a person is governed by his/her national law.”
Therefore
an LGBT Taiwanese person can engage in a same-sex marriage with an Australian
citizen. If an Australian citizen has
multiple citizenships, then it would seem that because that person is an
Australian citizen (and equal marriage is allowed in Australia) then the couple
can marry. However, it would be wise to
obtain advice from a Taiwanese lawyer before marrying first.
If one of
the spouses to be is a citizen of a country that does not recognise same-sex
marriage, for example, the Peoples Republic of China, then that marriage will
not be recognised. The Peoples Republic does
not allow multiple citizenships (unlike Australia). Therefore a gay or lesbian Chinese citizen
living in Australia as a permanent resident who wishes to marry in a same-sex
marriage with a Taiwanese citizen, may consider obtaining Australian
citizenship, then disclaiming Chinese citizenship so that that marriage is
recognised in Taiwan.
Because of
the complex legal issues involved, anyone in that situation ought to consider
obtaining careful legal advice first before undertaking those steps.
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