Hong Kong's Court of Final Appeal rules it unconstitutional to exclude same-sex couples from subsidised housing benefits and equal inheritance rights

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The Government and the Hong Kong Housing Authority said they respect the judgment and will study it thoroughly for appropriate follow-up actions.

Hong Kong's Court of Final Appeal (CFA) has made landmark judgments to affirm equal housing and inheritance rights to same-sex couples who are lawfully married overseas by unanimously dismissing three appeals lodged by the Hong Kong Housing Authority (HA) and the HKSAR Government.

In the two cases related to the HA’s family provision policies for public rental housing (PRH) and the Home Ownership Scheme (HOS), the CFA has held that the HA's policies that same-sex couples are ineligible for PRH application as "Ordinary Families", and to exclude same-sex spouses of owners of HOS flats from addition as authorised occupants of HOS flats and receiving transfer ownership without the payment of premium as "spouses" under "family members", are unlawful and unconstitutional.

The ruling wrote that social welfare benefits should be allocated “on a rational and justifiable basis, free from discrimination”, and there is no necessary conflict between the protection of equality and the preservation of pre-existing social welfare rights under Article 36 of the Basic Law.

In a separate proceeding concerning the inheritance rights of same-sex couples, the CFA has also maintained the lower courts' judgments that the exclusion of same-sex couples lawfully married overseas from certain provisions of the Intestates' Estates Ordinance (Cap 73) and the Inheritance (Provision for Family and Dependants) Ordinance (Cap 481) amounts to unlawful discrimination and is unconstitutional.

The ruling stated that: “Such (a valid foreign same-sex) marriages are lawfully recognised and constituting 'a public undertaking, carrying with it a body of rights and obligations of a contractual nature' which are imposed on the relationship by statute.

"This is more than a mere relationship of cohabitation and explains why such a relationship would not have the same readily identifiable characteristics of publicity and exclusivity that positively identify a married same-sex couple as being comparable to a married opposite-sex couple.”

The Government and the Hong Kong Housing Authority both said they respect the CFA's judgment.

“We will study the judgment thoroughly and seek legal advice from the Department of Justice for appropriate follow-up actions," said a spokesperson for the Government.