Same-sex marriage in Aruba, Curaçao and Sint Maarten
|Legal recognition of
Same-sex marriages are not conducted in Aruba, Curaçao or Sint Maarten, which are constituent countries of the Kingdom of the Netherlands. Since many of the residents of the countries are mostly Roman Catholic, the issue of same-sex marriage is one where opposition is large. 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) is open to people of any gender, marriages performed there have to be registered in the islands.
Status of same-marriage
The countries Aruba, Curaçao and Sint Maarten 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 countries as a result of article 40 of the Charter for the Kingdom of the Netherlands, 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 a married couple, 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, also same-sex marriages should benefit based on non-discrimination rules.
As the civil codes do not define the same-sex marriage, several court cases have given information on the status of same-sex marriages. 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 thus also jurisprudence established there leading to jurisprudence. Furthermore, upon the dissolution, the civil codes of the Netherlands Antilles formed the basis for the civil codes of Curaçao and Sint Maarten. An overview of relevant cases is discussed below:
Aruba: Dutch marriage should be registered
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, the couple launched the challenge the previous year, accusing 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 does not allow for same-sex marriage, and that it goes against Aruba's way of life.
The Government appealed 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 must recognize same-sex marriages performed in the Netherlands.
Aruba: Divorce is possible
In the case of a joint divorce-request of a same-sex couple in Aruba, the court ruled in 2008 that even although a same-sex marriage does not exist in the civil code of Aruba, the partners constituted a married couple in the sense of this civil code (based on their marriage in the Netherlands) and that thus a divorce according to Aruban law was possible.
Netherlands Antilles (Curaçao): Non-equal treatment of married couples is allowed
In 2009, the Common Court of Justice of the Netherlands Antilles and Aruba ruled in an appeal case that the partner in a same-sex marriage does not have to be offered health care benefits in a government employees health care scheme. The court ruled that regulations can exist which are based on the opposite-sex marriage definition existing in the Netherlands Antilles.[verification needed]
The court ruled similarly in a case of enrollment of a homosexual partner in a collective health insurance scheme, stating explicitly that enrollment 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, there would be no obligation for enrollment based on a Dutch same-sex marriage.
- "Eerste homohuwelijk in Caribisch Nederland (First gay marriage in the Caribbean Netherlands)". de Volkskrant (in Dutch). 4 December 2012. Retrieved 9 December 2012.
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- "Burgerlijk wetboek van de Nederlandse Antillen, boek 1" (in Dutch). overheid.nl. Retrieved 12 December 2010.
- "Charter for the Kingdom of the Netherlands" (in Dutch). Government of the Netherlands. 10 October 2010. Retrieved 29 December 2010.
- "case BM9542" (in Dutch). Court of first instance of Aruba. 5 March 2008. Retrieved 18 December 2010.
- "Appeal BI9335" (in Dutch). Common Court of Justice of the Netherlands Antilles and Aruba. Retrieved 18 December 2010.
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- "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.