Same-sex marriage in Aruba, Curaçao and Sint Maarten

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Same-sex marriages are not performed in Aruba, Curaçao, or Sint Maarten, which are constituent countries (Dutch: landen) of the Kingdom of the Netherlands. The islands were, however, obliged after several court rulings to register any marriage (including same-sex marriages) registered in the Kingdom, but that primarily affects residency rights and they do not have to give same-sex marriages the same legal effect as opposite-sex marriages. As marriage in the European territory of the Netherlands, as well as in Bonaire, Sint Eustatius and Saba (also known as the Caribbean Netherlands)[1] is open to any two people, marriages performed there have to be registered in the islands.

Aruba has offered registered partnerships since September 2021.

Same-sex marriage[]

Status of same-sex marriage[]

  Marriage
  Civil union
  Limited recognition

Aruba,[2] Curaçao,[3] and Sint Maarten[4] have separate civil codes, in which marriage is defined as the union between a man and a woman. However, marriage certificates and other documents regarding civil status from everywhere in the Kingdom (also from the European and Caribbean parts of the Netherlands) must be accepted by the other constituent countries as a result of Article 40 of the Charter for the Kingdom of the Netherlands,[5] and therefore registration of a same-sex marriage from the Netherlands is possible in all countries. Acceptance and registration of the same-sex marriage does not mean automatic equal treatment: if a facility (e.g. social benefits) is only open to married couples, this applies in certain cases only to heterosexual couples (the couples as defined in the civil codes of the countries). When a facility, however, is also open to non-married couples, then same-sex couples must also be included based on non-discrimination rules.

Case law[]

As the civil codes do not mention same-sex marriage, several court cases have given information on the status of same-sex marriages in the three islands. As the jurisprudence of the Kingdom is dependent on each other, decisions in other countries have in the same situation the same validity. Before the dissolution of the Netherlands Antilles, Curaçao and Sint Maarten were part of the latter country, and as such their civil codes are based on the Civil Code of the Netherlands Antilles. An overview of relevant cases is discussed below:

Recognition of Dutch marriages[]

A case was launched by a same-sex couple. Citing one of the partners' inability to receive health benefits from the job of the other, as entitled to a spouse in a heterosexual marriage, they accused Aruban Government of discrimination. The Government was adamantly opposed to the court challenge. The couple reported that they often had rocks thrown at them, were suffering from depression and were residing in the Netherlands after leaving Aruba in November 2003 because of harassment when they tried to register as a married couple. In December 2004, the Aruba Court of First Instance ruled that the marriage between the two in the Netherlands should be registered in Aruba. The Aruban Government's stance was that the Civil Code of Aruba does not allow for same-sex marriage, and that it goes against Aruba's way of life.[6]

The Government appealed the ruling to the Common Court of Justice of the Netherlands Antilles and Aruba (since 2010 the Joint Court of Justice of Aruba, Curaçao, Sint Maarten, and of Bonaire, Sint Eustatius and Saba). The court upheld the decision on 23 August 2005, stating that: "The Dutch marriage can be inscribed in the register. Since Aruba is part of the Kingdom of the Netherlands, it must comply with demands of the Kingdom." The ruling was based on Article 40 of the Statute of the Kingdom of the Netherlands which states that civil certificates are valid throughout the Kingdom.

Aruban Prime Minister Nelson O. Oduber reacted to the decision by declaring, "We give neither legal nor moral recognition to same-sex marriages." The Government appealed the ruling to the Supreme Court of the Netherlands. On April 13, 2007, the Supreme Court declared that, in accordance with the Charter for the Kingdom of the Netherlands, all marriages contracted in the different parts of the Kingdom of the Netherlands, should be accepted in the other parts of the Kingdom as well. It said that the matter that Aruba does not have a same-sex marriage law or that it goes against Aruba's 'way of life' is irrelevant to the issue. With this ruling, Aruba, as well as Curaçao and Sint Maarten, must recognize same-sex marriages performed in the Netherlands and the Caribbean Netherlands.

Same-sex divorce[]

In the case of a joint divorce request of a same-sex couple in Aruba, a court ruled in 2008 that even though same-sex marriages are not mentioned in the Civil Code of Aruba, the partners constituted a married couple and as such should be allowed to divorce.[7]

Non-equal treatment of married couples[]

In July 2008, the Netherlands Antilles Court of First Instance in Curaçao ruled against the Antillean Office for Healthcare Facilities (BZV; Stichting Bureau Ziektekostenvoorzieningen) for discriminating against a lesbian couple. The court ruled that the office had acted illegally when it refused to register the couple in its health insurance scheme. The judgement of the ruling held that "the recognition of the marriage certificate also means the recognition of the legal consequences of the marriage certificate".[8] The decision was overturned on appeal in June 2009 by the Common Court of Justice of the Netherlands Antilles and Aruba,[9] which stated that although a same-sex marriage had to be registered as a marriage, that did not require organizations to give the same effect to them as other marriages.[10][11][12]

The court ruled similarly in a case involving the enrollment of a same-sex couple in a collective health insurance scheme, stating explicitly that enrollment to same-sex couples was only possible as enrollment was also open to non-married couples and thus excluding same-sex couples would constitute discrimination. If non-married couples were excluded, then there would be no obligation for same-sex couples to be included.[13]

Exclusion from marriage is discrimination[]

On 13 September 2021, the Court of First Instance in Curaçao found that the exclusion of same-sex couples from marriage was contrary to the equality principle in the constitution, but left it to the legislature to address the unlawful discrimination.[14]

Legislative action[]

Curaçao[]

In September 2018, during the sixth edition of Curaçao Gay Pride, the local LGBT rights organizations FOKO Curaçao, Igualdat Kòrsou and Curaçao Gay Pro handed over a bill to Vice President of Parliament Giselle McWilliam that would allow same-sex couples to marry in Curaçao.[15][16][17] McWilliam applauded the action saying, "I think it's great. It shows that democracy is alive on Curaçao. That initiatives can come not only from the parliament or the government, but also from the people themselves. Everyone has the right to submit a bill, I am going to do everything to help this group, because they are also part of it."[18] According to Prime Minister Eugene Rhuggenaath, who attended the parade, it is now time to debate the issue. He said, "Exclusion and discrimination against the LGBT community affects human rights."[19] On 4 June 2019, the bill was submitted to the Estates of Curaçao by members of the Partido MAN and the Party for the Restructured Antilles.[20][21][22]

Registered partnerships[]

Aruba[]

In November 2015, Prime Minister Mike Eman promised to support initiatives to introduce registered partnerships for same-sex couples.[23] On 8 September 2016, the Parliament of Aruba voted in favor of an amendment to the Aruban Civil Code legalizing registered partnerships (Dutch: geregistreerd partnerschap; Papiamento: union civil)[24] for both same-sex and opposite-sex couples. The amendment gives couples in registered partnerships many rights offered to married couples, such as access to spousal pensions and authority to make emergency medical decisions.[25][26][27] It was signed into law on 23 September 2016.[28] The law came into effect on 10 October 2016, after other related legislation had been changed.[23][28]

8 September 2016 vote in the Parliament of Aruba[29]
Party Voted for Voted against Abstain/Absent
  Aruban People's Party
7
5
1
  People's Electoral Movement
3
 -
4
  Real Democracy
1
 - -
Total 11 5 5

Curaçao and Sint Maarten[]

Following the passage of a registered partnership bill in Aruba, LGBT organizations in both Curaçao and Sint Maarten announced they were hopeful such laws would also be approved in their respective countries.[30]

After an amendment, giving cohabiting couples (including same-sex couples) some limited rights, was proposed to the Estates of Curaçao in 2017, former Prime Minister Gerrit Schotte suggested that a referendum on the legalisation of same-sex marriage be held on the island.[31][32]

See also[]

References[]

  1. ^ "Eerste homohuwelijk in Caribisch Nederland (First gay marriage in the Caribbean Netherlands)". de Volkskrant (in Dutch). 4 December 2012. Retrieved 9 December 2012.
  2. ^ "Burgerlijk wetboek (Aruba), boek 1" (in Dutch). Government of Aruba. Archived from the original on 14 April 2011. Retrieved 12 December 2010.
  3. ^ "LANDSVERORDENING van de 2de november 2011 houdende vaststelling van een nieuw Wetboek van Strafrecht" (PDF). gobiernu.cw (in Dutch).
  4. ^ "LANDSVERORDENING van de 13e december 2012 houdende vaststelling van een nieuw Wetboek van Strafrecht". overheid.nl (in Dutch).
  5. ^ "Charter for the Kingdom of the Netherlands" (in Dutch). Government of the Netherlands. 10 October 2010. Retrieved 29 December 2010.
  6. ^ Gay marriage causes rift between Aruba and Netherlands
  7. ^ ECLI:NL:OGEAA:2008:BM9542
  8. ^ Jaus Müller (23 July 2008). "Het homohuwelijk hoort bij de wet, ook op de Antillen". nrc.nl (in Dutch).
  9. ^ ECLI:NL:OGHNAA:2009:BI9335
  10. ^ "Appeal BI9335" (in Dutch). Common Court of Justice of the Netherlands Antilles and Aruba. Retrieved 18 December 2010.
  11. ^ "Antillean court rejects Dutch law in gay case". Expatica.com. 2009-06-22. Retrieved 2014-04-05.
  12. ^ "Announcement". Rnw.nl. Retrieved 2014-04-05.
  13. ^ ECLI:NL:OGHNAA:2010:BM9524
    ECLI:NL:OGHNAA:2010:BO0846
  14. ^ Dept, Editorial. "'Exclusion of same-sex marriage violates the principle of equality'". The Daily Herald. Retrieved 2021-09-15.
  15. ^ "LHBT's Curaçao willen homohuwelijk". gaysite.nl. 28 September 2018.
  16. ^ van Beek, Roelie (30 September 2018). "'Er is verbetering in homo-acceptatie op Curaçao'". .
  17. ^ "Press Release: 'LGBTQ + Community Wants Equality Marriage'". . 28 September 2018.
  18. ^ van Beek, Roelie (27 September 2018). "Wetsvoorstel homohuwelijk trapt Curaçao Gay Pride af". Caribisch Network.
  19. ^ Drayer, Dick (29 September 2018). "Gay Pride Curaçao eist homohuwelijk". Nederlandse Omroep Stichting.
  20. ^ "Gay marriage bill submitted". Curacao Chronicle. 4 June 2019. Retrieved 5 June 2019.
  21. ^ "Wetsvoorstel homohuwelijk naar Staten". Antilliaans Dagblad (in Dutch). 4 June 2019. Retrieved 7 June 2019.
  22. ^ "Wetsvoorstel invoering homohuwelijk Curaçao". dwtonline.com (in Dutch). 5 June 2019.
  23. ^ Jump up to: a b At Long Last, Change Is Coming for Caribbean Gays
  24. ^ (in Papiamento) Amienda pa permiti Union Civil casi no tin deferencia cu matrimonio
  25. ^ "Parlement neemt amendement geregistreerd partnerschap aan". Caribisch Netwerk (in Dutch). 8 September 2016. Retrieved 11 September 2016.
  26. ^ "Aruba Parliament approves civil unions for same-sex couples". Yahoo. 9 September 2016. Retrieved 10 September 2016.
  27. ^ "Aruba Parliament approves civil unions for same-sex couples". Metro. 9 September 2016. Retrieved 10 September 2016.
  28. ^ Jump up to: a b LANDSVERORDENING van 23 september 2016 tot wijziging van het Burgerlijk Wetboek van Aruba (AB 1989 no. GT 100) in verband met een aantal onderwerpen die nog een regeling of aanpassing in het Burgerlijk Wetboek van Aruba behoeven (aanvulling Burgerlijk Wetboek van Aruba)
  29. ^ (in Dutch) AMENDEMENT van de leden Bikker, Wever-Croes, Herde, Lopez-Tromp
  30. ^ Aruba vote on civil partnerships could finally extend LGBT rights to all Dutch citizens
  31. ^ (in Dutch) "Referendum op Curaçao over homohuwelijk"
  32. ^ Schotte Wants Referendum On Same Sex Marriage

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