China’s Non-Recognition of Foreign Same-Sex Unions

Abstract

Abstract Chinese law neither expressly recognises nor prohibits same-sex unions (‘same-sex unions’ in this article refers to homosexual relationships that are legally recognised and protected by law, including marriage, civil union, (un)registered partnership, and so on). Until now, no dispute over foreign same-sex union has been brought in a Chinese court. However, the Department of Consular Affairs of China’s Ministry of Foreign Affairs has adopted a blanket non-recognition rule, alleging that same-sex unions would violate China’s (‘China’ hereinafter refers to the jurisdiction of Mainland China, excluding those of the Hong Kong SAR, the Macao SAR, and Taiwan) family law and the public interest. However, it is argued that foreign same-sex unions should be recognised unless such recognition would violate the public policy of the forum state. First, foreign same-sex unions should be regulated by the Chinese conflict rules, not by Chinese domestic law. Additionally, China is internationally obliged to recognise and protect fundamental human rights (right to marry). Secondly, under China’s conflict rules, a foreign same-sex union should be governed by the lex personalis or the law that has the closest connection with that union. Thirdly, as more than 40 jurisdictions throughout the world have legally recognised same-sex unions, and China itself has decriminalised homosexuality, same-sex unions would not necessarily be incompatible with China’s public policy. Fourthly, non-recognition of same-sex unions would instead cause public policy problems because it practically always favours one party over another, helping foreign same-sex couples to evade their responsibilities imposed by the relevant foreign law.