Same-sex marriage in Belgium

Verhofstadt Government

The election programmes of the SP (Flemish Social Democrats), Agalev (Flemish Greens) and VLD (Flemish liberals) for the 13 June 1999 elections included the aim to legalise same-sex marriage. The new Verhofstadt I Government was formed, which was notably made up of a coalition of liberal, socialist and green parties and excluded the long-dominant Christian democrats, who lost the elections due to the Dioxin Affair. The coalition agreement included "implementing a full legal partnership scheme" as well as "immediately making the Act of 23 November 1998 enter into force", which had not been done yet.^[3] A royal order signed on 14 December and published on 23 December 1999 made the Act of statutory cohabitation go into effect on 1 January 2000.^[4]

During 1999, the PS (French-speaking Social Democrats) and Ecolo (French-speaking Greens) also announced they agreed to legalise same-sex marriage. At that point, the only remaining party in Government that opposed same-sex marriage was the French-speaking liberal PRL (later merged into MR), mainly because it was opposed to adoption rights for same-sex couples. PRL agreed not to block same-sex marriage if adoption rights are excluded. As the first same-sex marriage in the Netherlands was performed on 1 April 2001, the Belgian Government, mostly under the lead of Minister of Health Magda Aelvoet (Agalev), began considering it as well.^[5][6] On 22 June, the Council of Ministers formally approved opening marriage to same-sex couples.^[7] In September, the largest opposition Christian People's Party (CVP) held a party convention where they rebranded into Christian Democratic & Flemish (CD&V), with a renewed party platform, including the aim to legalise same-sex marriage, put forward by their youth wing.

On 30 November 2001, however, the Council of State gave a negative legal opinion on the bill, saying that "marriage is defined as the union of a man and a woman".^[8] LGBT organisations and government ministers criticised the opinion and said they would proceed with the legislation.^[9] The Council of Ministers formally approved the government bill on 8 December 2001 and in second reading on 30 January 2002 and submitted it to the Chamber of Representatives on 14 March 2002, where it faced a Justice Committee overloaded with bills to consider.^[10] In May 2002, the government bill was then withdrawn from the Chamber and instead introduced as a private member's bill (which does not require opinions by the Council of State) in the Senate by the group leaders of the majority parties, Jeannine Leduc (VLD), Philippe Mahoux (PS), Philippe Monfils (MR), Myriam Vanlerberghe (SP.A-Spirit), Marie Nagy (Ecolo) and Frans Lozie (Agalev).

As Minister Aelvoet resigned on 28 August 2002 and elections were to be held in June 2003, the fate of the bill was unclear. Some politicians also accused Philippe Monfils (MR) of deliberately stalling the bill.^[11][12] Nevertheless, new momentum was gained at the start of the new parliamentary year in October 2002. The Senate Justice Committee held hearings and voted 11–4 to approve the bill. It passed in the full Senate on 28 November 2002, with 46 votes to 15 (and 4 abstentions) and on 30 January 2003, the bill passed the Chamber of Representatives by 91 votes to 22 (and 9 abstentions).^{[13][14][15][16]} The Flemish Liberals and Democrats, Christian Democratic and Flemish, (Francophone) Socialist Party, (Flemish) Socialist Party, Ecolo, Agalev and the People's Union voted generally in favour except for several abstentions, whereas the Flemish Block and National Front voted against, the Humanist Democratic Centre voted against with several abstentions and the Reformist Movement voted mostly against.

* Coalition of the 1999-2003 Verhofstadt I Government.

** The party had recently split, but was still technically together as a parliamentary group.

King Albert II signed and promulgated the bill on 13 February 2003 and on 28 February it was published in the Belgian Official Journal and came into force on 1 June.

The first paragraph of article 143 of the Belgian Civil Code (Book I, Title V, Chapter I) now reads as follows:

• in Dutch: Een huwelijk kan worden aangegaan door twee personen van verschillend of van hetzelfde geslacht.
• in French: Deux personnes de sexe différent ou de même sexe peuvent contracter mariage.

(Two persons of different sex or of the same sex may contract marriage.)

The first female couple married on 6 June 2003 and the first male couple on 13 June 2003, both in Kapellen near Antwerp.^[17]

In November 2003, opponents of same-sex marriage petitioned the Arbitration Court to invalidate the law as unconstitutional. Their main argument held that treating fundamentally different situations the same way, violates the equality principle of the Constitution.^[18] In October 2004, the Arbitration Court, nowadays known as the Constitutional Court, rejected the request.^[19]

Subsequent changes

Originally, Belgium allowed the marriages of foreign same-sex couples only if their country of origin also allowed these unions. A circulaire by Minister of Justice Laurette Onkelinx (PS) of 23 January 2004, however, permits any couple to marry in Belgium if at least one of the spouses has lived in the country for a minimum of three months. This was codified into the Code on International Private Law, which took effect on 1 October 2004.

The same-sex marriage law did not permit adoption by same-sex partners, and as birth within a same-sex marriage did not imply affiliation, the same-sex spouse of the biological parent had no way to become the legal parent. A proposal to permit adoption was approved 77–62 (with 7 abstentions) by the Chamber of Representatives on 1 December 2005,^[20][21] and 34–33 (with 2 abstentions) by the Senate on 20 April 2006.^[22] It received royal assent on 18 May 2006 and went into force on 30 June 2006.^[23]

A legal inequality compared to heterosexual couples still existed with regards to children: the husband of the biological mother is automatically legally recognised as the father (by article 135 of the Civil Code), but this was not the case in a same-sex couple for the wife of the mother. To be recognised as the co-mother, she had to complete an adoption procedure. This accounted for the large majority of adoption cases in Belgium. The Di Rupo Government promised to fix this, and in 2014, as the Netherlands had recently passed similar legislation, LGBT organisations pressured the Government about their promise. Subsequently, legislators worked to agree on a solution.^[24] A bill to this end was approved by the Senate on 3 April 2014 on a 48–2 vote (with one abstention), and by the Chamber of Representatives on 23 April on a 114–10 vote (with one abstention). The bill received royal assent on 5 May and went into effect on 1 January 2015.

Since this change, female same-sex couples are treated equally to heterosexual couples: the co-mother married to the mother is automatically recognised as parent, and an unmarried partner can formally recognise the child at the civil registry. An equivalent solution for male same-sex couples has not been agreed upon, due to the controversy surrounding surrogacy.

Marriage

According to the Belgian Official Journal, approximately 300 same-sex couples were married between June 2003 and April 2004 (245 in 2003 and 55 in 2004). This constituted 1.2 percent of the total number of marriages in Belgium during that period. Two thirds of the couples were male and one third female. On 22 July 2005, the Belgian Government announced that a total of 2,442 same-sex marriages had taken place in the country since the extension of marriage rights two years earlier.^[25] The following table summarizes the number of people married in same-sex marriages.^[26]

When comparing per region:^[27]

Consequently, the share of same-sex marriages among all marriages also differs significantly from region to region. Whereas almost 3% of marriages in both Brussels and Flanders are same-sex marriages, only 1.6% in Wallonia are. There is also a correlation between the share per province and the province's population density. The province with the lowest rate is Luxembourg (1.2%) and the one with the highest rate is Antwerp (3.4%), which are respectively the least and most populous and the least and most densely populated provinces.^[27]

Statutory cohabitation

From 2000 to 2014, 698,395 people had reported being in a statutory cohabitation, with that number heavily increasing over the years. 35% of these cohabitations, however, had ended by 2014. In 2014, 3.2% of all statutory cohabitations were between same-sex couples.^[28]