Lawyers for a gay homeowner challenging Hong Kong’s inheritance laws have demanded equal treatment for their client, arguing that the current regime treats his husband as an outsider who will not benefit from his estate if their client dies without a will.
Edgar Ng Hon-lam applied for a judicial review last year upon learning that the matrimonial home he bought could not be passed to his husband, Henry Li Yik-ho.
According to local ordinances on intestacy and financial provision for dependants, a “husband” was defined on the basis of a valid marriage in Hong Kong to someone exclusively of the opposite sex and excluding a foreign same-sex marriage – such as Ng’s, which was registered in London three years ago.
This meant Ng could not ensure his husband would be able to inherit his estate in the absence of a valid will or other estate planning. In addition, Li would not be entitled to first priority in obtaining a grant to the administration of Ng’s estate, or to acquiring their matrimonial home.
Jin Pao SC, for the applicant, on Wednesday argued that the couple was in an analogous and comparable position to those validly married in Hong Kong as they were similarly subjected to a duty to maintain each other during their marriage.
He also noted that the Intestates’ Estates Ordinance under challenge was not intended to support the institution of marriage, but to facilitate the orderly distribution of estates.
Yet Li was completely excluded from the ordinance and “in essence treated as an outsider” to Ng, who would most want to provide for his husband, the counsel said.
“It’s no good answer to say you can prepare a will,” Pao told the High Court. “The implications of difference in treatment is very serious for my client … wholly disproportionate.”
The case also challenged the marriage provisions in the Inheritance (Provision for Family and Dependants) Ordinance, following earlier successes in other fields such as taxation, civil servants’ benefits or application of dependant visas.
Ng is 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.
“He wants equality to be achieved, not just for himself but for those in a similar position,” Pao said.
But Abraham Chan Lok-shung SC, for the government, countered that these provisions were all anchored on the Marriage Ordinance, which had a definition of marriage that was affirmed by the court last November when it rejected the first judicial challenge for same-sex marriage and civil partnerships.
Chan also argued that the applicant had failed the first hurdle in the discrimination analysis to show that the right to equality was engaged in the present case, as they had identified the wrong comparator to begin with.
The counsel said Ng and his husband were “simply not in a comparable legal position” to those in a valid marriage, when only the latter were legally obliged in Hong Kong to maintain their partners.
He noted that even heterosexual couples would have to make wills if they did not like the arrangements set out in the statutory scheme under the Intestates’ Estates Ordinance, including the order of priority, which sets out who – the spouse, parents and children – can benefit and how.
“The real difference of treatment here is between people who are content with the statutory priority and people who aren’t.”
Mr Justice Anderson Chow Ka-ming has reserved his decision.
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