A Study On The Recognition Of The Foreign Same-sex Couple In China

The foreign same-sex couple refers to two natural persons of the same sex,marrying abroad or establishing a marriage-like relationship,and enjoying the same or similar rights as heterosexual spouses.The foreign same-sex couple should be recognized as marriage to apply the choice of law.The legalization of the foreign same-sex couple has had an impact on the theory and practice of private international law in China,including the challenge to public order and application of law,thus our courts,administrative organs and homosexuality are troubled in practice.The harmonization of public order and same-sex couple by foreign practices shows that the full use of reservation of public order refusing to recognize the legal status of the foreign same-sex couple is not consistent with international practice.The same-sex couple which belongs to evasion of law should be refused to recognize its effectiveness.The legislation and judicial practice of typical countries provide a way of thinking for our country’s recognition of the foreign same-sex couple.Our country should adopt the method of limiting recognition.Recognition of same-sex couple should take the form of administrative registration.In addition,recognizing the legal status of the foreign same-sex couple does not mean that all civil legal consequences are fully recognized.Selectively recognition of the incidents of marriage should be taken which differentiates the legal status of marriage from the legal consequences of marriage.Limiting Recognition of the foreign same-sex couple will also have influence on the visa,the right of childbearing of same-sex partner workers and the right to refuse to testify in the criminal court as a spouse.In order to overcome difficulties confronted by our country,we should set up the rules of recognition of the foreign same-sex couple and conflict of laws which should cover the establishment of the same-sex couple,the personal and property relation between them.