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FAQ: Same-sex marriage
Published on:Tuesday, September 29, 2009 - 17:15
Since 2001, same-sex marriages have been legal in the Netherlands, and thousands of gay and lesbian couples have entered into marriage. This is a summary of the legal situation affecting same-sex couples.
- Since when has same-sex marriage been legal in the Netherlands?
Same-sex unions have been recognised in the Netherlands since 1998. Marriage between two same-sex partners is recognised since 1 April 2001. At that time, the Netherlands was the only country in the world where it was legally possible for same-sex couples to marry. Several countries have subsequently followed the Dutch example: Belgium, Spain, Canada, South Africa Sweden and Norway. In the United Kingdom and several other countries, civil partnerships have identical legal status to a marriage.
There is no separate law for same-sex marriages in the Netherlands. The existing law was simply modified to include the statement that “marriage is possible between two persons of different or same sex.”
- How many same-sex couples have tied the knot since then?
During the first year, no fewer than 2414 gay and lesbian couples married in the Netherlands. According to Marian Baker of the International Homosexual/Lesbian Information Centre and Archives (IHLIA), there was already a large group of couples that had wanted to marry before the legislation was brought in. After the law was changed, the rate of same-sex marriages stabilised to around 1,200 per year, but has subsequently increased. More than 1,500 same-sex couples married in Amsterdam through 2007, representing about seven percent of all marriages performed there.
- What are the legal consequences of a same-sex marriage for the partners' children?
A husband and wife are the legal parents of any children born of their marriage. The biological mother is the legal mother, and her husband the legal father. The situation is different if the mother is married to or the registered partner of another woman. In this case, the law does not automatically regard both partners as the parents of the child. Only the biological mother is automatically its parent. Her partner must adopt the child to become its legal parent.
A marriage between two women therefore has no consequences for the relationship between the birth mother's partner and the child. The same applies to two men bringing up a child of whom one is the father. If they marry, the marriage as such has no consequences for the relationship between the father's partner and the child.
- Can same-sex couples adopt children?
Yes, the adoption law was also changed on 1 April 2001. Two women or two men may adopt a child. However, the child has to be ‘habitually resident’ in the Netherlands. Adoption of a child from another country by same-sex couples is not allowed. This restriction does not apply to married heterosexual couples. The couple wishing to adopt must prove that they have lived together for at least three years, and have cared for the child for at least one year.
- What is the attitude of the Churches to same-sex marriage?
There was strong opposition from fundamentalist religious groups to the introduction of same-sex marriage. After parliament legalised same-sex marriage the Protestant Church of the Netherlands (PKN) decided that individual churches have the right to decide whether or not to bless other relationships between two persons as a union of love and faith for the face of God; in practice many churches will conduct these ceremonies.
PKN was created on 1 May 2004 from the merger of the Dutch Reformed Church, the Reformed Church in the Netherlands and the Dutch Lutheran Church. However some parishes and members in the Dutch Reformed Church did not agree with the merger and separated. One of the reasons for the split was their opposition to same-sex marriages. They have formed the "Restored Dutch Reformed Church".
The Catholic Church opposes the social acceptance of homosexuality and same-sex relationships, but teaches that homosexual persons deserve respect, justice and pastoral care. The Vatican and Pope John Paul II are speaking out against the growing number of countries that recognise same-sex marriages.
- Are council officials obliged to conduct single-sex marriage ceremonies?
This is still the subject of controversy. In 2007, the government announced that individual officials who object to same-sex marriage on principle may refuse to marry such couples. Some Socialist and Liberal dominated municipal councils opposed this policy, as they claimed it is the job of a registrar to marry all couples regardless of gender.
The opposition parties stated that if an official opposed this aspect of the job, he or she should not perform that job at all. The city council of Amsterdam announced that it would not comply with this policy, and that registrars there would still be obliged to marry same-sex couples.
In reaction to the Amsterdam decision, many other municipalities announced their rejection of the proposal as well. The government then claimed that deciding this issue was not within the remit of municipalities but solely within that of the central government. At present, municipalities still decide for themselves if they hire registrars who object to marrying same-sex couples.
- What surnames may same-sex married couples use?
Under Dutch law, spouses may use each other’s surname, in combination with or instead of their own. However, this does not apply to official documents, in which their own name always has to be used.
- Will the same-sex marriage be recognised abroad?
Not necessarily. Only a few other countries recognise same-sex marriage, although more recognise same-sex civil partnerships. Same-sex married couples will find that their marriage, and consequently their legal rights, may be treated differently in other countries.
- Does the recognition of same-sex marriages also apply to Aruba and the Netherlands Antilles?
Yes, the Supreme Court of the Netherlands, the Netherlands Antilles and Aruba ruled on 13 April 2007 that Aruba must recognise same-sex marriages registered in the Netherlands. Aruba had refused such recognition due to public opposition. However, Aruba and the Netherlands Antilles have not changed their legislation, which still does not allow for such marriages to take place within their borders.
Although a same-sex marriage is not possible in Aruba or the Netherlands Antilles, both countries are now forced to at least recognise Dutch same-sex marriages. The ruling of the Supreme Court is based on the Kingdom Charter (’Statuut‘): legal instruments formally drawn up in one part of the Kingdom have the same legal force in the other two parts of the Kingdom.
- Can a non-Dutch national marry a partner of the same sex if his or her country of origin does not recognise the marriage?
Yes. If at least one partner is either a Dutch national or resident in the Netherlands, Dutch law applies. In other words, they can get married if they are allowed to do so under Dutch law. Whether the law of the country of which the non-Dutch partner is a national recognises same-sex marriage is irrelevant.
- Are alternative forms of same-sex partnerships also recognised in the Netherlands?
Yes, these may be:
- Registered partnership
Couples who are legally eligible to marry but choose not to do so may enter into a registered partnership. Like civil marriage, registered partnership is a legally binding contract which is recorded at a registry of births, deaths and marriages. The conditions for entering into a marriage or a registered partnership are similar. This type of partnership was introduced in the Netherlands in 1998.
- Cohabitation agreement
A cohabitation agreement sets out the rights and obligations a couple choose for themselves. Unlike marriage or registered partnership, a cohabitation agreement only has legal consequences for the contracting parties.
- Non-contractual cohabitation
Informal cohabitation also has certain consequences, for instance the partners’ tax payments and social security benefits.
- Can a registered partnership be converted into a marriage?
Yes, and a marriage can also be converted into a registered partnership. In both cases a registrar of births, deaths and marriages draws up a deed of conversion, which is entered in either the register of births, deaths and marriages (if a registered partnership is converted into a marriage) or the register of partnerships (if a marriage is converted into a registered partnership). The conversion is also recorded on the marriage certificate or partnership contract. Conversion can only be effected in a municipality in which one of the partners is resident. It does not alter existing rights and obligations, for example regarding parental responsibility or property regimes.
Times are a changin' in the Dutch Bible Belt