Same-sex marriage in Aruba, Curaçao and Sint Maarten

Legal status of same-sex unions
Marriage
Performed

Argentina
Australia
Austria*
Belgium
Brazil
Canada
Colombia
Costa Rica+
Denmark
Finland
France
Germany
Iceland
Ireland
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Mexico:
· 12 states & CDMX
Netherlands1
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Recognized
  1. Not performed in Aruba, Curaçao and Sint Maarten
  2. Neither performed nor recognized in Niue, Tokelau or the Cook Islands
  3. Neither performed nor recognized in Northern Ireland, the dependency of Sark or six of the fourteen overseas territories
  4. Neither performed nor recognized in American Samoa or many tribal jurisdictions with the exception of federal recognition benefits
  5. When performed in Mexican states that have legalized same-sex marriage
  6. When performed in the Netherlands proper
  7. If performed before 1 June 2018
  8. Registration schemes open in all jurisdictions except Hualien County, Penghu County, Taitung County and Yunlin County

* Not yet in effect
+ Automatic deadline set by judicial body for same-sex marriage to become legal

LGBT portal

Same-sex marriages are not performed in Aruba, Curaçao, or Sint Maarten, which are "landen" (English: constituent countries) 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 they don't 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 the Caribbean Netherlands (Bonaire, Sint Eustatius and Saba)[1] is open to any two people, marriages performed there have to be registered in the islands.

Aruba has offered couples registered partnerships since October 2016.

Status of same-sex marriage

Homosexuality legislation in the Lesser Antilles
  Same-sex marriage performed
  Same-sex marriage recognized
  Other type of partnership
  Unrecognized or unknown
  Same-sex sexual activity illegal but no longer enforced
  Same-sex sexual activity illegal

Blue crowns: Kingdom of the Netherlands

Aruba,[2] Curaçao[3] and Sint Maarten[3] 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,[4] 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.

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.[5][6][7] 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."[8] According to Prime Minister Eugene Rhuggenaath, who attended the parade, it is now time to enter the debate. He said: "Exclusion and discrimination against the LGBT community affects human rights."[9]

Jurisprudence

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 Charlene and Esther Oduber-Lamer. Citing Esther's inability to receive health benefits from Charlene's job, as entitled to a spouse in a heterosexual marriage, they accused Aruba's 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, an island lower court ruled that the marriage between Charlene and Esther Oduber-Lamer in the Netherlands should be recognized 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.[10]

The Government appealed the ruling to the Common Court of Justice of the Netherlands Antilles and Aruba. 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 doesn't 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.

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 aren't mentioned in the Civil Code of Aruba, the partners constituted a married couple and as such should be allowed to divorce.[11]

Non-equal treatment of married couples

In 2009, the Common Court of Justice of the Netherlands Antilles and Aruba ruled in an appealed case that a partner in a same-sex marriage does not have to be offered health care benefits in a government employees health care scheme.[12][13][14]

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.[15]

Registered partnerships

Aruba

In November 2015, Prime Minister Mike Eman promised to support initiatives to introduce registered partnerships for same-sex couples.[16] 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) 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.[17][18][19] It was signed into law on 23 September 2016.[20] The law came into effect on 10 October 2016, after other related legislation had been changed.[16][20]

8 September 2016 vote in the Parliament of Aruba[21]
PartyVoted forVoted againstAbstain/Absent
     Aruban People's Party
     People's Electoral Movement -
     Real Democracy - -
Total1155

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.[22]

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.[23][24]

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. 1 2 "Burgerlijk wetboek van de Nederlandse Antillen, boek 1" (in Dutch). overheid.nl. Retrieved 12 December 2010.
  4. ↑ "Charter for the Kingdom of the Netherlands" (in Dutch). Government of the Netherlands. 10 October 2010. Retrieved 29 December 2010.
  5. ↑ "LHBT's Curaçao willen homohuwelijk". gaysite.nl. 28 September 2019.
  6. ↑ van Beek, Roelie (30 September 2018). "'Er is verbetering in homo-acceptatie op Curaçao'". Caribisch Network.
  7. ↑ "Press Release: 'LGBTQ + Community Wants Equality Marriage'". Curaçao Chronicle. 28 September 2018.
  8. ↑ van Beek, Roelie (27 September 2019). "Wetsvoorstel homohuwelijk trapt Curaçao Gay Pride af". Caribisch Network.
  9. ↑ Drayer, Dick (29 September 2018). "Gay Pride Curaçao eist homohuwelijk". Nederlandse Omroep Stichting.
  10. ↑ Gay marriage causes rift between Aruba and Netherlands
  11. ↑ "case BM9542" (in Dutch). Court of first instance of Aruba. 5 March 2008. Retrieved 18 December 2010.
  12. ↑ "Appeal BI9335" (in Dutch). Common Court of Justice of the Netherlands Antilles and Aruba. Retrieved 18 December 2010.
  13. ↑ "Antillean court rejects Dutch law in gay case". Expatica.com. 2009-06-22. Retrieved 2014-04-05.
  14. ↑ "Announcement". Rnw.nl. Retrieved 2014-04-05.
  15. ↑ "Appeal Bm9524 (preliminary verdict)" (in Dutch). Common Court of Justice of the Netherlands Antilles and Aruba. 22 June 2010. Retrieved 18 December 2010.
    "Appeal bo0846 (verdict)" (in Dutch). Common Court of Justice of the Netherlands Antilles and Aruba. 28 September 2010. Retrieved 18 December 2010.
  16. 1 2 At Long Last, Change Is Coming for Caribbean Gays
  17. ↑ "Parlement neemt amendement geregistreerd partnerschap aan". Caribisch Netwerk (in Dutch). 8 September 2016. Retrieved 11 September 2016.
  18. ↑ "Aruba Parliament approves civil unions for same-sex couples". Yahoo. 9 September 2016. Retrieved 10 September 2016.
  19. ↑ "Aruba Parliament approves civil unions for same-sex couples". Metro. 9 September 2016. Retrieved 10 September 2016.
  20. 1 2 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)
  21. ↑ (in Dutch) AMENDEMENT van de leden Bikker, Wever-Croes, Herde, Lopez-Tromp
  22. ↑ Aruba vote on civil partnerships could finally extend LGBT rights to all Dutch citizens
  23. ↑ (in Dutch) "Referendum op Curaçao over homohuwelijk"
  24. ↑ Schotte Wants Referendum On Same Sex Marriage
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