As we are poised to offer legal servicess to LGBT communties in China esp those matters with a cross-border elements, it will be helpful to update interested readers on China's legal landscape on LGBT communities and associated legal problems.
I. Legality under Chinese Laws
LGBT communities face hard time both legally and socially.
Put it simply, the only legal form of marriage is heterosexual marriage in China, a relatively conservative society when it comes to individual freedom. In other words, same-sex marriage is not allowed in China, and in the meantime, such marriage legally formed in foreign jurisdictions won't be recognized in China as well for the reason of violating China public policy.
You may wonder whether there is anything like a de facto marriage/couple or civil partnership/union legally recognized under Chinese laws, and the answer is a clear NO!
Indeed, cohabitation between heterosexual partners and homosexual partners exist widely in Chinese society, but such co-habitation has never been conferred upon with any legal status. The rights and duties and liabilities between them are left to their private negotiation and agreements.
Culturally, any public discussion on same sex issues can immediately draw frowning, disgust and even hatred on social medias in China despite that a more liberal attitude towards those people is apparently growing quietly.
II. Internal Relationship
Despite the hard stance of Chinese laws on LGBT people, in reality, there are a large number of LGBT community in China which is estimated to be about 70 million people.
For homosexual individuals, they can still live together in Chinese society though they may often undergo eye-rolling moments.
Due to the lack of laws regulating their relationships, it is advisable for homosexual partners to enter into an agreement to regulate their private life in terms of rights and liabilities in relation to acquisiton and division of properties with mutual contribution and sharing of costs of their mutual life. We have seen quite a few cases involving disputes over gifts and money transfer made by one partner to the other during their cohabitation. In most cases, Chinese courts won't take into account their special intimate relationship but apply general rules in deciding on money-related disputes.
Under the current Chinese laws and judicial practice, it seems better for partners to keep their financials separate as much as they can than mix too much together; while this may sound weird for loved ones, it will indeed make their breakup or separation easier when things don't work out between them. After all, sepaprating financials from each other doesn't prevent one from loving and providing for the other.
III. Want a Child?
It could be a mission impossible for same sex couple or partners to adopt a child in China. Indeed from September 2024, China has tightened its policy for foreigners to adopt children from within China to the extent that they can only adopt children of their own parallel collateral relatives within three generations.
You may think of surrogacy to have a child. That is fine, but not within China. Legally, China doesn't allow surrogacy to be performed within its territories. Again, real life is often way different from what the law says. We have seen many cases of surrogacies undergone in black markets.
Under current Chinese laws, children born by way of surrogacy are mostly considered as the legal children of surrogate women no matter whether the eggs of the surrogate moms are used or not.
Thus many wealthy chinese choose to carry out surrogacy in those countries where surrogacy is legal, noticeably in some of central asia countries. With proper formalities, those surrogacy children may be well integrated into the family of the commissioning parents in China.
IV. Consensual Guardianship In Case of Incapacity
Often than none, LGBT partners maintain a steady relationship throughout their lifetime. It is natural that they wish to take care of each other when one partner may lose civil capacity to act on his or her own.
In this case, China Civil Code does offer a legal tool to address such needs between LGBT couples.
Also it is legal in China for people to write up a testamentary gift contract whereby the testator agreees to leave certain assets/estates to the person who agrees to take care of him or her upon the testator's death. With proper drafting and formalities, such agreements will be upheld in Chinese courts.
For more about consensual guardianship under China Civil Code, please refer to our past posts below:
https://www.sinoblawg.com/guardianship-of-elderly-people-in-china/
V. Estate Planning and Inheritance
Estate planning for LGBT communities is something essential for their life.
As LGBT relationship is not legally recognized by Chinese laws, in the case of intestate succession for assets in China, the same sex partner won't be able to lay any valid claim for inheritance of the estates left by his or her loved partner even if their marriage is duly and legally registered in a foreign jurisdiction.
Thus estate planning is necessary and highly recommended for LGBT communities to ensure their loved ones will be able to benefit from their estates in China.
In this regard, for people with not too many assets, a will may suffice for their estate planning purpose, and for high-net worth people with significant assets may need to think of sophysiticated estate planning tools such as international or domestic family trusts to ensure their estates will be properly distributed and utilized after they are gone.
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