Same-sex marriage in Aruba, Curaçao and Sint Maarten

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Legal status of same-sex unions
Marriage
Performed
Recognized
  1. Marriages performed in some municipalities and recognized by the state
  2. For some purposes, from all jurisdictions where same-sex marriage is legal
  3. When performed in Mexican states that have legalized same-sex marriage
  4. When performed in the Netherlands proper
  5. Registration schemes opened in all jurisdictions except Hualien County, Penghu County, Taitung County, and Yunlin County

* Not yet in effect

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Same-sex marriages cannot be performed in Aruba, Curaçao or Sint Maarten, which are "landen" (English: constituent countries) of the Kingdom of the Netherlands. Since many of the residents of the countries are 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)[1] is open to two people of any gender, marriages performed there have to be registered in the islands.

Status of same-sex marriage[edit]

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.

Jurisprudence[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 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 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, 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 of Aruba does not allow for same-sex marriage, and that it goes against Aruba's way of life.[5]

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[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 aren't mentioned in the Civil Code of Aruba, the partners constituted a married couple and as such should be allowed to divorce.[6]

Non-equal treatment of married couples[edit]

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.[7][8][9]

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.[10]

Registered partnerships[edit]

Aruba[edit]

In November 2015, Prime Minister Mike Eman promised to support initiatives to introduce registered partnerships for same-sex couples.[11] 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 registered partnerships many rights offered to married couples, such as access to spousal pensions and authority to make emergency medical decisions.[12][13][14] It was signed into law on 23 September 2016.[15] The law came into effect on 10 October 2016, after other related legislation had been changed.[11][15]

8 September 2016 vote in the Parliament of Aruba[16]
Party Voted for Voted against Abstain/Absent
     Aruban People's Party
     People's Electoral Movement -
     Real Democracy - -
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.[17]

See also[edit]

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. ^ "Burgerlijk wetboek (Aruba), boek 1" (in Dutch). Government of Aruba. Retrieved 12 December 2010. 
  3. ^ a b "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. ^ Gay marriage causes rift between Aruba and Netherlands
  6. ^ "case BM9542" (in Dutch). Court of first instance of Aruba. 5 March 2008. Retrieved 18 December 2010. 
  7. ^ "Appeal BI9335" (in Dutch). Common Court of Justice of the Netherlands Antilles and Aruba. Retrieved 18 December 2010. 
  8. ^ "Antillean court rejects Dutch law in gay case". Expatica.com. 2009-06-22. Retrieved 2014-04-05. 
  9. ^ "Announcement". Rnw.nl. Retrieved 2014-04-05. 
  10. ^ "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. 
  11. ^ a b At Long Last, Change Is Coming for Caribbean Gays
  12. ^ "Parlement neemt amendement geregistreerd partnerschap aan". Caribisch Netwerk (in Dutch). 8 September 2016. Retrieved 11 September 2016. 
  13. ^ "Aruba Parliament approves civil unions for same-sex couples". Yahoo. 9 September 2016. Retrieved 10 September 2016. 
  14. ^ "Aruba Parliament approves civil unions for same-sex couples". Metro. 9 September 2016. Retrieved 10 September 2016. 
  15. ^ 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)
  16. ^ (in Dutch) AMENDEMENT van de leden Bikker, Wever-Croes, Herde, Lopez-Tromp
  17. ^ Aruba vote on civil partnerships could finally extend LGBT rights to all Dutch citizens

External links[edit]