HONG KONG SAR, CHINA Law and Practice Contributed by: Alfred Ip, Hugill & Ip
Personal Care sets out detailed proposals for the CPA regime, and the government has been consulting on implementing legislation. Once enacted, the CPA will significantly enhance the toolkit available to individu - als planning for incapacity. Elder abuse ‒ including financial abuse, physical abuse, and psychological abuse ‒ is a growing con - cern in Hong Kong. Legal practitioners play an impor - tant role in identifying and responding to elder abuse, including through the use of EPAs to protect vulner - able elderly clients from exploitation by family mem - bers or carers. For a discussion of the legal responses to elder abuse, see Shedding Light on Elder Abuse: Protecting Our Loved Ones. 9. Planning for Non-Traditional Families 9.1 Children Hong Kong law has substantially equalised the suc - cession rights of children regardless of their birth sta - tus. Under the Intestates’ Estates Ordinance (Cap. 73) and the Inheritance (Provision for Family and Depend - ants) Ordinance (Cap. 481), children born outside mar - riage have the same rights to inherit from their parents as children born within marriage. Adopted children, legally adopted under the Adoption Ordinance (Cap. 290), are treated as the lawful children of their adop - tive parents for all succession purposes and lose their succession rights in relation to their birth parents. Surrogacy presents a more complex legal landscape. Commercial surrogacy is prohibited in Hong Kong. For altruistic surrogacy arrangements, the surrogate mother is recognised as the legal mother of the child at birth, regardless of any genetic connection. The commissioning parents ‒ whether a heterosexual or same-sex couple ‒ must apply to the court for a Parental Order under Section 12 of the Parent and Child Ordinance (Cap. 429) to be legally recognised as the child’s parents. The Parental Order extinguishes the legal parentage of the surrogate and her spouse and vests full legal parentage in the commissioning parents, which is essential for the child’s succession rights, immigration status, and access to government benefits. For case analysis on surrogacy and parental orders, see The Controversial Topic of Surrogacy Hits
Hong Kong Again and Case Analysis: Children of the Family Are Children! 9.2 Same-Sex Marriage The legal landscape for same-sex couples in Hong Kong has evolved significantly through a series of landmark court decisions, though comprehensive statutory recognition remains absent. Hong Kong does not legally recognise same-sex marriage or civil partnerships performed domestically, and the govern - ment has been resistant to introducing a formal part - nership framework despite judicial pressure. The pivotal decision is Sham Tsz Kit v Secretary for Justice [2023] HKCFA, in which the Court of Final Appeal ruled that the government had a positive obli - gation under the Basic Law to provide same-sex cou - ples with a framework for legal recognition, and gave the government a two-year deadline to establish such a framework. Whilst the court did not mandate same- sex marriage, it confirmed that the complete absence of legal recognition was constitutionally untenable. In Secretary for Justice v Li Yik Ho ( in substitution for Ng Hon Lam Edgar , deceased ) FACV No 4 of 2024, [2024] HKCFA 30, a further landmark ruling in November 2024, the Court of Final Appeal upheld earlier decisions confirming that same-sex spouses married overseas are entitled to equal treatment under the Intestates’ Estates Ordinance (Cap. 73) and the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481). Therefore, a same-sex spouse in a valid overseas marriage has the same intestacy rights as a heterosexual spouse and can bring a claim for financial provision under Cap. 481 on the same basis. Despite these judicial advances, the absence of a domestic partnership framework means that same- sex couples cannot rely solely on the law to protect their interests. A carefully drafted will is essential to ensure that a same-sex partner inherits as intended. The use of a discretionary trust, with the partner as a primary beneficiary, provides additional protection. For comprehensive guidance on planning for same- sex couples, see The State of LGBTQ+ Rights in Hong Kong: A Legal Roadmap , Protecting Your Family as a Same-sex Couple , and With No Legal Status, Hong
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