Same-sex marriage in Aruba, Curaçao and Sint Maarten

  Marriage

  Civil union

  Limited recognition

Aruba,[2] Curaçao,[3] and Sint Maarten[4] 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,[5] 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.

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:

A case was launched by a same-sex couple. 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 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.[6]

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 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 does not 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 and the Caribbean Netherlands.

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.[7]

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 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".[8] The decision was overturned on appeal in June 2009 by the Common Court of Justice of the Netherlands Antilles and Aruba,[9] which stated that although a same-sex marriage had to be registered as a marriage, that did not require organizations to give the same effect to them as other marriages.[10][11][12]

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.[13]

In September 2018, during the sixth edition of Curaçao Gay Pride, the local LGBT rights organizations FOKO Curaçao, Igualdat Kòrsou and Curaçao Gay Pro handed over a bill to Vice President of Parliament Giselle McWilliam that would allow same-sex couples to marry in Curaçao.[14][15][16] 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."[17] According to Prime Minister Eugene Rhuggenaath, who attended the parade, it is now time to debate the issue. He said, "Exclusion and discrimination against the LGBT community affects human rights."[18] On 4 June 2019, the bill was submitted to the Estates of Curaçao by members of the Partido MAN and the Party for the Restructured Antilles.[19][20][21]

In November 2015, Prime Minister Mike Eman promised to support initiatives to introduce registered partnerships for same-sex couples.[22] On 8 September 2016, the Parliament of Aruba voted in favor of an amendment to the Aruban Civil Code legalizing registered partnerships (Dutch: geregistreerd partnerschap; Papiamento: union civil)[23] for both same-sex and opposite-sex couples. The amendment gives couples in registered partnerships many rights offered to married couples, such as access to spousal pensions and authority to make emergency medical decisions.[24][25][26] It was signed into law on 23 September 2016.[27] The law came into effect on 10 October 2016, after other related legislation had been changed.[22][27]

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.[29]

After an amendment, giving cohabiting couples (including same-sex couples) some limited rights, was proposed to the Estates 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.[30][31]