The Taipei High Administrative Court rendered the 104-Su-83 Decision of October 12, 2017 (hereinafter, the “Decision”), holding that a same-sex marriage registration lawsuit cannot be filed until the two-year period for legal amendment expires.
According to the facts underlying this Decision, the Plaintiffs, both females, applied to the Defendant for same-sex marriage registration in August 2014 by including their special household registration application and a marriage certificate signed by two witnesses. After reviewing this application, the Defendant rejected the application by way of the original disposition on the ground that the application did not meet the definition of a marriage, which involves one man and one woman who are legally joined together to live together forever. Dissatisfied, the Plaintiffs brought administrative action.
It was first pointed out in this Decision that the same-sex marriage registration application filed by the Plaintiffs had been rejected (apologetically refused) by the original disposition on the ground that a lawful marriage under the Civil Code involves the union of “one man and one woman,” which was declared unconstitutional by Judicial Interpretation No. 748. Therefore, the disposition which rejected the Plaintiffs’ application was certainly unlawful (unconstitutional) and should be dismissed.
However, it was further pointed out in this Decision that the “obligation to amend the law in two years” set forth in Judicial Interpretation No. 748 also expressly indicates indirectly that legal revision is the authority and responsibility of the legislature. In addition, after same-sex marriage is legalized, very complicated aspects of law are still involved and this is not limited to just the Civil Code or the Household Registration Law. Therefore, even if there is any legislative loophole, a judicial agency such as a court still cannot elect to deal with it beyond its authority in this case. Moreover, the household registration agency still has no legal basis for the registration even though the household registration office can make a note of the same-sex spouses. Therefore, with respect to this same-sex marriage registration application, since the competent authority has not completed revision or formulation of relevant laws and the two-year period set forth in the above judicial interpretation has not expired, there is no legal basis for household registration of a same-sex marriage. Therefore, the Plaintiff’s action to grant the marriage registration was groundless and should be rejected.