HONG KONG SAR, CHINA Law and Practice Contributed by: Jeffrey Lee, Jessica Leung and Hilary Leung, Charles Russell Speechlys
Posthumously Conceived Children For the purpose of succession, under Section 10 (6) of the Parent and Child Ordinance, where the sperm of a man is used after his death to conceive a child, or where an embryo was used after the death of the man with whose sperm the embryo was created, that man is not regarded as the father of the child. Parental Rights for Same-Sex Partners In Hong Kong, same-sex couples do not enjoy the same parental rights as heterosexual couples. In 2021, the Hong Kong courts determined that the non-bio - logical parent of natural children born by their prior same-sex partner should be granted guardianship rights, joint custody and shared care and control over their children. Following this decision, same-sex par - ents may now apply to have equal parental rights over their children upon their births. 9.2 Same-Sex Marriage Hong Kong does not recognise same-sex marriage, in the sense that a valid marriage in Hong Kong is heterosexual and monogamous. However, under the Married Persons Status Ordi - nance, married persons status can apply to the parties to a marriage that is celebrated or contracted outside Hong Kong, according to the law in force at the time and in the place where the marriage was performed. As there is no definition of “parties to a marriage”, same-sex couples appear to enjoy legal status in Hong Kong. That said, when it comes to divorce, nul - lity, judicial separation or presumption of death and dissolution of marriage, the Family Courts in Hong Kong have no authority or jurisdiction to make any order in respect of same-sex marriages. Recent case law has shown how benefits that once came with traditional heterosexual marriages are now becoming more accessible for non-traditional families. Following the judgment of a case involving a same- sex couple in 2018, the Immigration Department revised its policy to allow a person who has entered into a same-sex civil partnership, same-sex civil union, same-sex marriage, opposite-sex civil partnership or opposite-sex civil union outside Hong Kong to apply for a dependent visa/entry permit for entry into Hong
Kong, provided that all the other eligibility criteria are met, though this case did not involve any claim that same‐sex couples have a right to marry under Hong Kong law. For the purposes of succession, the definition of “mar - riage” under the Intestate Estates Ordinance only cov - ers heterosexual marriage and not same-sex marriage. Following a 2020 judgment, the court ruled that the exclusion of same-sex marriage violated the princi - ples laid down in the Basic Law. However, the court refused to rule on the question of whether “marriage” could include “civil partnerships” and “civil unions” for the purposes of the Inheritance Estates Ordinance. In 2019, the court ruled that same-sex marriages would be regarded as a valid marriage for the pur - poses of the Inland Revenue Ordinance. The decision enables same-sex couples to elect for joint assess - ment of taxable income and to claim appropriate allowances or allowable deductions. In a 2022 case involving the non-biological mother of children born to her former same-sex partner, the court ruled that both parents should be granted guardianship rights, joint custody and shared care and control over their children. In 2025, the Hong Kong government proposed intro - ducing an official registration framework to legally recognise same-sex partnerships in Hong Kong. The proposal provided that, upon registration, same-sex couples would have the right to deal with medical- related matters, including acting as a guardian to participate in the medical decisions of a mentally incapacitated partner, and to deal with after-death arrangements for a deceased same-sex partner. The relevant bill for the registration framework will be sub - mitted to the Legislative Council in due course.
10. Charitable Planning 10.1 Charitable Giving
Charities are exempt from tax under the Inland Rev - enue Ordinance, provided that certain requirements are met.
238 CHAMBERS.COM
Powered by FlippingBook