2017.5.24
Emily Chueh
Judicial Interpretation No. 748 (hereinafter, the “Interpretation”) was rendered during the 1457th Session of the Judicial Yuan on May 24, 2017, declaring that the provisions which exclude same-sex marriage under the Marriage Chapter of the Family Part of the Civil Code violate the gist of Article 22 of the Constitution, which protects the marriage freedom of the people, and Article 7 of the Constitution, which protects equal rights of the people. Relevant agencies are required to finish amending or making relevant laws within two years.
According to the facts underlying the Interpretation, there have been citizens whose application to household registration offices to register same sex marriage is rejected. After exhausting available remedies, they applied for constitutional interpretation on the ground that the restriction on same-sex marriage under the Civil Code could be unconstitutional. In addition, Taipei City Government has also applied for constitution interpretation on the ground that the Marriage Chapter of the Civil Code is unconstitutional. The Judicial Yuan incorporated this case into other pending cases and rendered this Interpretation after oral arguments were conducted in March.
This Interpretation points out that marriageable citizens who do not have a spouse shall enjoy the freedom of marriage under Article 22 of the Constitution, including the freedom to decide “if to get married” and “whomever to be married to.” If two same-sex individuals get married for the purpose of living together, this neither affects applicable requirements for the engagement, marriage, general marriage effects, property system and divorce of two different sex individuals nor changes the social order established by different sex marriage. After same sex marriage is officially and legally recognized, it can further become a stabilizing foundation of society together with different sex marriage. Currently, the Marriage Chapter of the Civil Code neither imposes fertility as a precondition for different sex marriage, nor voids a marriage in which the couple cannot or fail to produce their offspring, nor use this as a reason for setting aside or sanctioning a divorce. Therefore, procreation is not an indispensable element of marriage.
Therefore, the prohibition against same sex marriage under the Civil Code is obviously an unreasonable treatment and goes against the gist of equal rights protection under Article 7 of the Constitution. Relevant agencies are required to finish amending or making relevant laws within two years after the promulgation date of this Interpretation. If the legal amendment is not completed within such period, two same sex individuals may still register their marriage at a household registration office.