Taiwan now permits registration of cross-strait same-sex marriages

Peter J Dernbach

Winkler Partners, Taipei

pdernbach@winklerpartners.com

Emma Chiu

Winkler Partners, Taipei

Taiwan’s path toward marriage equality

Taiwan’s commitment to LGBTQI+ rights has been growing steadily since 2017, when the Constitutional Court held that the Civil Code’s exclusion of same-sex couples to marry was unconstitutional. The Court required the legislature to amend the Civil Code or enact a new law within two years of its decision.

In 2019, the Act for Implementation of J.Y. Interpretation No 748 was passed, making Taiwan the first Asian country to legalise same-sex marriage. Despite this progress, the legislation contains certain gaps. Regarding transnational couples, in practice the 2019 Act allowed Taiwanese citizens to marry same-sex foreign citizens only if the foreign partner’s home country had also legalised same-sex marriage. In 2023, the Ministry of the Interior issued an Interpretive Letter to allow same-sex marriages to be registered in Taiwan if one of the parties was an ROC (Taiwan) citizen, irrespective of whether the foreign citizen’s home country would recognise the marriage. However, this Interpretive Letter did not apply to couples where one partner was from China.[1] Up until last year, these cross-strait same-sex couples were unable to formalise their union in Taiwan, though cross-strait heterosexual couples could do so with the appropriate documentation.

Last year, Taiwan’s Mainland Affairs Council (MAC) announced plans to rectify this discrepancy by allowing same-sex couples married in a third country to register their marriages in Taiwan, following a similar process used by heterosexual cross-strait couples.[2]

The process of registration

To register their marriage, same-sex couples married abroad must meet several requirements. First, if married in a third country that recognises same-sex marriage, the marriage certificate must be authenticated by the corresponding Taiwan embassy or representative office, and the couple must then be interviewed before entering Taiwan. Thereafter, the couple can register their marriage at a household registration office in Taiwan, which will formally recognise the union of same-sex couples under Taiwanese law.

Legal precedents and court rulings

Since the 2019 law was enacted, many cases have been brought by the Taiwan Alliance to Promote Civil Partnership Rights (TAPCPR) objecting to gaps left by the initial act. Between 2019–2022, TAPCPR won five court decisions for transnational couples from Japan, Hong Kong, Macau and Singapore.[3] In 2024, the Administrative Court ruled that the marriage of a cross-strait same-sex couple married in the United States should be treated the same as a heterosexual marriage, paving the way for the Ministry of the Interior’s Interpretive Letter that relaxed the earlier interpretation of the law.

Challenges for cross-strait same-sex couples

While this step represented progress, same-sex couples where one of the partners is from the People’s Republic of China continued to face challenges. The current regulation[4] requires that a homosexual Chinese spouse wishing to obtain a Taiwanese ID must cancel their household registration in China, a process complicated by the fact that China does not legally recognise same-sex marriage. While there can be challenges in cancellation in the case of cross-strait heterosexual couples due to the current political climate, this presents a significant barrier particularly for same-sex couples from China, as Chinese authorities are unlikely to approve the deregistration needed for the registration of a same-sex marriage in Taiwan. As a result, these couples may continue to face difficulties in obtaining residency in Taiwan.

Implications for the LGBTQI+ community

Gender rights groups, including TAPCPR, have welcomed the announcement as a positive step forward, describing it as ‘a long-awaited, difficult but navigable path home’. However, civil rights groups also highlight the challenges that cross-strait same-sex couples continue to face, including the financial and social barriers involved in having to marry in a third country. The economic costs and logistical hurdles of traveling abroad to marry can create additional inequalities compared to heterosexual couples, who can marry within China or Taiwan directly.

Despite these ongoing challenges, Taiwan’s announcement represents another progressive step toward equality, setting an example for other Asian nations where same-sex marriage remains unrecognised. By gradually making legal accommodations for all same-sex couples working towards full equality, Taiwan continues to lead in advancing LGBTQI+ rights in the region.