Gay homeowner challenges Hong Kong inheritance law over fears husband may not get house if he dies
- Edgar Ng Hon-lam applies for judicial review over marriage provisions in intestate and inheritance laws
A gay homeowner who previously took the Hong Kong government to court over a rule that prevented him from living with his husband has mounted a second legal challenge, this time over inheritance in case he dies without a will.
Edgar Ng Hon-lam on Wednesday applied for a judicial review over the marriage provisions in two ordinances on intestacy and financial provision for dependants, upon learning the matrimonial home he bought may not be passed to his husband, Henry Li Yik-ho.
The applicant bought a flat under the Home Ownership Scheme in the hopes of living with Li as a family unit after they got married in London on January 28, 2017, and had a blessing service at a church in Hong Kong.
“They intend to share their properties and support each other’s life even if one of them passes away before the other,” his lawyers wrote to the High Court.
But, both the Intestates Estates Ordinance and the Inheritance (Provision for Family and Dependants) Ordinance had defined “husband” on the basis of a valid marriage in Hong Kong – exclusively of the opposite sex and to the exclusion of foreign same-sex marriage, such as Li’s.
The definition means a person in a same-sex marriage cannot ensure their partner inherits their estate in the absence of a valid will or other estate planning.
It also means a surviving civil partner or same-sex spouse would not be entitled to first priority in obtaining a grant to the administration of the deceased’s estate, or to acquire the premises in which they lived with the deceased at the time of death.
Ng had already applied for a judicial review last month challenging a Housing Authority policy that prevented his cohabitation with his husband as a family.
His successive filings reflect some of the many challenges faced by the LGBT community in Hong Kong, when authorities do not recognise same-sex marriages lawfully performed abroad for any purpose until the policy is clarified in court, as seen in other fields of taxation, civil servants’ spousal benefits, and dependence visas.
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His lawyers said these marriage provisions were unlawful and unconstitutional as they do not recognise and provide for same-sex marriages, civil unions and civil partnerships equally as heterosexual marriages – contrary to the Basic Law, the city’s mini-constitution.
They also argued these provisions were unlawful as an unjustified restriction of their rights to respect for their private and family life without distinction on sexual orientation, and to protect their economically valuable property rights.
“The less favourable treatment accorded to gay and lesbian people under the marriage provisions, and to the applicant personally, fails the justification test,” the lawyers wrote. “It is discriminatory on the ground of sexual orientation.”
Ng is now seeking multiple declarations to allow phrases such as “husband and wife” in the ordinances be read as “a married person and his or her spouse” and for references to “marriage” to include civil partnerships and civil unions between people of the same sex.
“It is now obvious that there is an ever-increasing number of same-sex couples who have or would seek to celebrate their relationships abroad from all segments of society,” his lawyers wrote.
“This dispute is likely to arise between the government and other members of the public, if not the applicant, on further and other occasions. It is important that it be resolved.”
