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 of the Kingdom of the Netherlands. The islands were obliged after several court rulings to register any marriage (including same-sex marriages) registered in the Kingdom, but this primarily considers 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,[1] is open to any two people, marriages performed there have to be registered in the islands.

Aruba has recognized registered partnerships providing almost all of the rights and benefits of marriage since September 2021. That same month, a lower court in Curaçao ruled that preventing same-sex couples from marrying violates the equality provisions of the Constitution of Curaçao, but left the decision of whether to legalise same-sex marriage up to the Parliament of Curaçao.[2]

Registered partnerships[edit]

Recognition of same-sex unions in the Lesser Antilles
  Same-sex marriage
  Other type of partnership
  Unregistered cohabitation
  No recognition of same-sex couples
  Constitutional ban on same-sex marriage
  Same-sex sexual activity illegal but penalties not enforced
  Island subject to IACHR ruling, penalty not enforced

Registered partnerships,[a] offering several of the rights, benefits and obligations of marriage, have been recognized in Aruba for different-sex and same-sex couples since 1 September 2021.

Aruba[edit]

In November 2015, Prime Minister Mike Eman promised to support bills legalizing registered partnerships for same-sex couples.[4] On 8 September 2016, the Parliament of Aruba voted in favor of an amendment to the Aruban Civil Code legalizing registered partnerships for both same-sex and opposite-sex couples. The amendment gives couples in registered partnerships almost all of the rights offered to married couples, such as access to spousal pensions and the possibility to make emergency medical decisions for a partner.[5][6][7] Governor Fredis Refunjol granted royal assent on 23 September 2016.[8] After five years of delay, the law came into effect on 1 September 2021, after other related legislation had been changed.[9][4][8]

8 September 2016 vote in the Parliament of Aruba[10]
Party Voted for Voted against Abstain/Absent
  Aruban People's Party
7
  • Christiaan Gerard Dammers
  • Desirée Geneviève de Sousa-Croes
  • Gervais Rene Herdé
  • Jeffrey Clifton Gilbert Paul Kelly
  • Marisol Juliette Lopez-Tromp
  • Norman Ceril Roos
  • Melvin Glorinda Wyatt-Ras
5
  • Lorna Casandra Jansen-Varlack
  • Donald Raymond Rasmijn
  • Alfred Marlon Sneek
  • Melvin Atanacio Tromp
  • Clarisca Nereida Velasquez
1
  • Jennifer Justine Arends-Reyes
  People's Electoral Movement
3
  • Glenbert Francois Croes
  • Crispin Valentino Junior Romero
  • Evelyna Christina Wever-Croes
-
4
  • Guillfred Fransis Besaril
  • Danguillaume Pierrino Oduber
  • Xiomara Jeanira Ruiz-Maduro
  • Juan Edberto Thijsen
  Real Democracy
1
  • Andin Ceasar Giovanni Bikker
- -
Total 11 5 5

Curaçao and Sint Maarten[edit]

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.[11]

After an amendment giving cohabiting couples (including same-sex couples) some limited rights was proposed to the Parliament 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.[12][13]

Same-sex marriage[edit]

Status of same-sex marriage[edit]

  Marriage
  Registered partnership
  Limited recognition

Aruba,[14] Curaçao,[15] and Sint Maarten[16] 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,[17] 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[edit]

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[edit]

A case was launched in 2002 by a same-sex couple seeking recognition of their Dutch marriage in Aruba. 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 the 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".[18]

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 Charter 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, all marriages contracted in the different parts of the Kingdom of the Netherlands, must be accepted in the other parts of the Kingdom as well. It ruled that the matter that Aruba does not have a same-sex marriage law or that it "goes against Aruba's 'way of life'" was 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[edit]

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.[19]

Non-equal treatment of married couples[edit]

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 married 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".[20] The decision was overturned on appeal in June 2009 by the Common Court of Justice of the Netherlands Antilles and Aruba,[21] which stated that although a same-sex marriage had to be registered as a marriage, this did not require organizations to give the same effect to them as other marriages.[22][23][24]

The court ruled similarly in June 2010 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.[25]

Exclusion from marriage is discrimination[edit]

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 of the Constitution of Curaçao, but left it to the Parliament to address the unlawful discrimination.[2] "There is no justification to deny same-sex couples the right to get married, certainly as long as there is no comparable legal system such as a registered partnership", the court said. The case was filed by a lesbian couple who had been together for more than 10 years and sought the right to marry. The Human Rights Caribbean Foundation said the ruling was a "step forward" and an "asset to anyone who supports fundamental rights and is committed to equality".[26] The government filed an official appeal of the decision in June 2022, though Prime Minister Gilmar Pisas had announced immediately after the court ruling that it had plans to appeal.[27]

Legislative action[edit]

Curaçao[edit]

In September 2018, three LGBT rights organizations presented a bill to legalize same-sex marriage in Curaçao to Vice President of Parliament Giselle McWilliam.[28][29][30] 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."[31] Prime Minister Eugene Rhuggenaath also welcomed the measure, saying that it "is now time to debate the issue", and that "exclusion and discrimination against the LGBT community affects human rights."[32] On 4 June 2019, the bill was submitted to the Parliament of Curaçao by members of the Partido MAN and the Real Alternative Party.[33][34][35]

Public opinion[edit]

Support for same-sex marriage in Aruba, Curaçao and Sint Maarten is significantly lower than in the country of the Netherlands. A 2019 Eurobarometer poll showed that 92% of Dutch people thought same-sex marriage should be allowed throughout Europe, while 8% were opposed.[36] For comparison, a 2021 Aruban poll showed that 49% of respondents supported registered partnerships for same-sex couples, and 46% supported same-sex marriage. Support was higher among young people (about 75% of people under the age of 30 expressed support), and those who had completed higher education.[37]

See also[edit]

Notes[edit]

  1. ^ Dutch: geregistreerd partnerschap, pronounced [ɣəˌrəɣɪˈstreːrt ˈpɑrtnərsxɑp]; Papiamento: union civil,[3] pronounced [uˈnjon siˈvil]

References[edit]

  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. ^ a b Dept, Editorial. "'Exclusion of same-sex marriage violates the principle of equality'". The Daily Herald. Retrieved 2021-09-15.
  3. ^ "Conexion entre union civil y permiso di estadia". www.dimasaruba.aw (in Papiamento). 1 September 2021.
  4. ^ a b At Long Last, Change Is Coming for Caribbean Gays
  5. ^ "Parlement neemt amendement geregistreerd partnerschap aan". Caribisch Netwerk (in Dutch). 8 September 2016. Retrieved 11 September 2016.
  6. ^ "Aruba Parliament approves civil unions for same-sex couples". Yahoo. 9 September 2016. Retrieved 10 September 2016.
  7. ^ "Aruba Parliament approves civil unions for same-sex couples". Metro. 9 September 2016. Retrieved 10 September 2016.
  8. ^ 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)
  9. ^ "DBSB biedt twee nieuwe producten aan haar klanten i.v.m. wijzigingen in het BW per 1 september 2021". Aruba Gobierno (in Dutch).
  10. ^ (in Dutch) AMENDEMENT van de leden Bikker, Wever-Croes, Herde, Lopez-Tromp
  11. ^ Aruba vote on civil partnerships could finally extend LGBT rights to all Dutch citizens
  12. ^ (in Dutch) "Referendum op Curaçao over homohuwelijk"
  13. ^ Schotte Wants Referendum On Same Sex Marriage
  14. ^ "Burgerlijk wetboek (Aruba), boek 1" (in Dutch). Government of Aruba. Archived from the original on 14 April 2011. Retrieved 12 December 2010.
  15. ^ "LANDSVERORDENING van de 2de november 2011 houdende vaststelling van een nieuw Wetboek van Strafrecht" (PDF). gobiernu.cw (in Dutch).
  16. ^ "LANDSVERORDENING van de 13e december 2012 houdende vaststelling van een nieuw Wetboek van Strafrecht". overheid.nl (in Dutch).
  17. ^ "Charter for the Kingdom of the Netherlands" (in Dutch). Government of the Netherlands. 10 October 2010. Retrieved 29 December 2010.
  18. ^ Gay marriage causes rift between Aruba and Netherlands
  19. ^ ECLI:NL:OGEAA:2008:BM9542
  20. ^ Jaus Müller (23 July 2008). "Het homohuwelijk hoort bij de wet, ook op de Antillen". nrc.nl (in Dutch).
  21. ^ ECLI:NL:OGHNAA:2009:BI9335
  22. ^ "Appeal BI9335" (in Dutch). Common Court of Justice of the Netherlands Antilles and Aruba. Retrieved 18 December 2010.
  23. ^ "Antillean court rejects Dutch law in gay case". Expatica.com. 2009-06-22. Retrieved 2014-04-05.
  24. ^ "Announcement". Rnw.nl. Retrieved 2014-04-05.
  25. ^ ECLI:NL:OGHNAA:2010:BM9524
    ECLI:NL:OGHNAA:2010:BO0846
  26. ^ "Eksklushon matrimonio di personanan di mesun sekso kontra prinsipio di igualdat". Kiko ta Pasando (in Papiamento). 13 September 2021.
  27. ^ "Curaçao government to appeal same-sex marriage ruling". Curaçao Chronicle. 23 March 2022.
  28. ^ "LHBT's Curaçao willen homohuwelijk". gaysite.nl. 28 September 2018.
  29. ^ van Beek, Roelie (30 September 2018). "'Er is verbetering in homo-acceptatie op Curaçao'". Caribisch Network.
  30. ^ "Press Release: 'LGBTQ + Community Wants Equality Marriage'". Curaçao Chronicle. 28 September 2018.
  31. ^ van Beek, Roelie (27 September 2018). "Wetsvoorstel homohuwelijk trapt Curaçao Gay Pride af". Caribisch Network.
  32. ^ Drayer, Dick (29 September 2018). "Gay Pride Curaçao eist homohuwelijk". Nederlandse Omroep Stichting.
  33. ^ "Gay marriage bill submitted". Curacao Chronicle. 4 June 2019. Retrieved 5 June 2019.
  34. ^ "Wetsvoorstel homohuwelijk naar Staten". Antilliaans Dagblad (in Dutch). 4 June 2019. Retrieved 7 June 2019.
  35. ^ "Wetsvoorstel invoering homohuwelijk Curaçao". dwtonline.com (in Dutch). 5 June 2019.
  36. ^ "Eurobarometer on Discrimination 2019: The social acceptance of LGBTI people in the EU". TNS. European Commission. p. 2. Retrieved 23 September 2019.
  37. ^ "Bevolking Aruba pro geregistreerd partnerschap zelfde geslacht". Antiliaans Dagblad (in Dutch). 26 February 2021.

External links[edit]