The application of the voluntary guardianship regime to same-sex relationships in China

Abstract

Abstract In China, the establishment of the voluntary guardianship regime in the General Rules of the Civil Law produced an interesting situation where same-sex partners may apply this regime to determine and protect their rights and obligations. This article describes and analyses the recent practices in this regard, drawing on several cases where same-sex partners concluded voluntary guardianship agreements to arrange matters after a ward loses or partially loses civil capacity. This application allows homosexuals freely to appoint their homosexual partner as their guardian, which compensates to some extent for the lack of clear statutory provisions regarding the legal recognition of same-sex relationships in current Chinese law. Nevertheless, there exist several practical problems within the process of applying the legal rules of voluntary guardianship. In addition, owing to the distinct mismatch between the legislative purpose of the voluntary guardianship system and the core essentials of same-sex relationships, the application of voluntary guardianship to same-sex relationships fails to touch on the crucial legal issues of same-sex relationships, for example, financial relations issues and children issues. In view of these, several proposals about both what needs to be done to make voluntary guardianship work better for same-sex couples at this stage and further legislative reform of the formalized regime for same-sex couples in the future are offered.