Same-sex marriage in Aruba, Curaçao and Sint Maarten
Encyclopedia
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 Roman Catholic
, the issue of same-sex marriage is one where opposition is large. The islands were however obliged after several court rulings to recognize any marriage (including same-sex marriage
s) registered anywhere in the Kingdom. As marriage in the European territory of the Netherlands
is open to people of any gender
, marriages registered there have to be accepted in the other islands.
s and other documents regarding civil status from everywhere in the Kingdom (also from the European part 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.
and Sint Maarten were part of the latter country, and thus also jurisprudence established there is valid. 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:
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.
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.
Aruba
Aruba is a 33 km-long island of the Lesser Antilles in the southern Caribbean Sea, located 27 km north of the coast of Venezuela and 130 km east of Guajira Peninsula...
, Curaçao
Curaçao
Curaçao is an island in the southern Caribbean Sea, off the Venezuelan coast. The Country of Curaçao , which includes the main island plus the small, uninhabited island of Klein Curaçao , is a constituent country of the Kingdom of the Netherlands...
or Sint Maarten, which are constituent countries of the Kingdom of the Netherlands
Kingdom of the Netherlands
The Kingdom of the Netherlands is a sovereign state and constitutional monarchy with territory in Western Europe and in the Caribbean. The four parts of the Kingdom—Aruba, Curaçao, the Netherlands, and Sint Maarten—are referred to as "countries", and participate on a basis of equality...
. Since many of the residents of the countries are Roman Catholic
Roman Catholic Church
The Catholic Church, also known as the Roman Catholic Church, is the world's largest Christian church, with over a billion members. Led by the Pope, it defines its mission as spreading the gospel of Jesus Christ, administering the sacraments and exercising charity...
, the issue of same-sex marriage is one where opposition is large. The islands were however obliged after several court rulings to recognize any marriage (including same-sex marriage
Same-sex marriage
Same-sex marriage is marriage between two persons of the same biological sex or social gender. Supporters of legal recognition for same-sex marriage typically refer to such recognition as marriage equality....
s) registered anywhere in the Kingdom. As marriage in the European territory of the Netherlands
Netherlands
The Netherlands is a constituent country of the Kingdom of the Netherlands, located mainly in North-West Europe and with several islands in the Caribbean. Mainland Netherlands borders the North Sea to the north and west, Belgium to the south, and Germany to the east, and shares maritime borders...
is open to people of any gender
Same-sex marriage in the Netherlands
Same-sex marriage has been legal in the Netherlands since 1 April 2001...
, marriages registered there have to be accepted in the other 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 certificateMarriage certificate
In some jurisdictions a marriage certificate is the official record that two people have undertaken a marriage ceremony. This does include jurisdictions where marriage licenses do not exist...
s and other documents regarding civil status from everywhere in the Kingdom (also from the European part 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
Charter for the Kingdom of the Netherlands
The Charter for the Kingdom of the Netherlands describes the political relationship between the four different countries which form the Kingdom of the Netherlands: Aruba, Curaçao, and Sint Maarten in the Caribbean and the Netherlands in Europe...
, 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.
Jurisprudence
As the civil codes do not define the homo-sexual marriage, several court cases have given information on the status of homo-sexual 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, CuraçaoCuraçao
Curaçao is an island in the southern Caribbean Sea, off the Venezuelan coast. The Country of Curaçao , which includes the main island plus the small, uninhabited island of Klein Curaçao , is a constituent country of the Kingdom of the Netherlands...
and Sint Maarten were part of the latter country, and thus also jurisprudence established there is valid. 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: Case Oduber-Lamer
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
Netherlands
The Netherlands is a constituent country of the Kingdom of the Netherlands, located mainly in North-West Europe and with several islands in the Caribbean. Mainland Netherlands borders the North Sea to the north and west, Belgium to the south, and Germany to the east, and shares maritime borders...
should be recognized in Aruba
Aruba
Aruba is a 33 km-long island of the Lesser Antilles in the southern Caribbean Sea, located 27 km north of the coast of Venezuela and 130 km east of Guajira Peninsula...
. The Aruban government's stance was that the civil code does not allow for same-sex marriage
Same-sex marriage
Same-sex marriage is marriage between two persons of the same biological sex or social gender. Supporters of legal recognition for same-sex marriage typically refer to such recognition as marriage equality....
, 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
Nelson O. Oduber
Nelson Orlando Oduber was the Prime Minister of Aruba. He is a member of the Movimiento Electoral di Pueblo . He was prime minister for the first time from 1989 until 1994, when his party lost parliamentary elections, and has been prime minister again from 2001 until 2009...
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
Hoge Raad der Nederlanden
The Supreme Court of the Netherlands is the highest court of the Netherlands, Curaçao, Sint Maarten and Aruba. The Court was established on 1 October 1838 and sits in The Hague, Netherlands....
. On April 13, 2007, the Supreme Court declared that, in accordance with the Charter for the Kingdom of the Netherlands
Charter for the Kingdom of the Netherlands
The Charter for the Kingdom of the Netherlands describes the political relationship between the four different countries which form the Kingdom of the Netherlands: Aruba, Curaçao, and Sint Maarten in the Caribbean and the Netherlands in Europe...
, all marriages contracted in the different parts of the Kingdom of the Netherlands
Kingdom of the Netherlands
The Kingdom of the Netherlands is a sovereign state and constitutional monarchy with territory in Western Europe and in the Caribbean. The four parts of the Kingdom—Aruba, Curaçao, the Netherlands, and Sint Maarten—are referred to as "countries", and participate on a basis of equality...
, 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 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 possible
In 2009, the Common Court of Justice of the Netherlands Antilles and Aruba ruled in an appeal case that a 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.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.