Sunday April 1, 2001
Netherlands implements new same-sex
marriage law
A story released today by the Associated Press reports that four Amsterdam gay couples
exchanged rings and vows at City Hall early Sunday, the first of hundreds planning to wed
under a new Dutch law allowing same-sex marriages.
Standing around a conference table, three male couples and one female couple held hands as
Amsterdam mayor Job Cohen officiated the ceremony.
"And now we have the marriage of two men and two women,'' Cohen said after each
agreed to accept his or her partner as a spouse.
Cohen gave each partner a ring, then asked them to sign a marriage registry. The two women
both wore gowns with long trains. Most of the men were in conservative dark suits,
although one couple was outfitted in leather.
"In the Netherlands, we have gained the insight that an institution as important as
marriage should be open to everyone,'' he said. Though several other countries register
same-sex couples and some call them marriages, rights groups have hailed the Dutch
legislation as groundbreaking. It eliminates all references to gender in laws governing
matrimony and adoption, going so far as to amend the dictionary to eliminate references to
"man and woman'' in the definition of marriage.
Gays have enjoyed general acceptance in the Netherlands for years, and public surveys show
that more than 75 percent of the population supported the equal rights bill.
Although widely tolerated, gays won their first legal rights with the decline of religious
political parties and the formation in 1994 of the first wholly secular governing
coalition, which passed legislation allowing gays to register as partners.
Dutch religious parties however, remain opposed and the Vatican has called the Dutch move
a "great danger.''
Like heterosexual married couples, gay couples under the new laws are able to apply for
court approval to adopt children after living together for three years. The law also
eliminates legal ambiguities on inheritance, pension rights, taxes and divorce.
Gay couples however, will be barred from adopting children overseas because of potential
objections from countries that don't allow gays to marry.
Foreigners hoping to get married in the Netherlands will be disappointed. Only Dutch
nationals or resident foreigners living with a Dutch partner are eligible for same-sex
marriages.
Law professor explains new same-sex
marriage law in the Netherlands
According to Kees Waaldijk, professor at Universiteit Leiden, at midnight on April 1,
2001, four new laws went into force in the Netherlands.
The law of 21 December 2000 (Staatsblad 2001, nr. 9)
on the opening up of marriage for same-sex partners.
The law of 21 December 2000 (Staatsblad 2001, nr. 10)
on adoption by same-sex partners.
The law of 13 December 2000 (Staatsblad 2001, nr. 11)
on various matters including the further equality between marriage and partnership
registration (parts of this law took effect earlier this year).
The law of 8 March 2001 (Staatsblad 2001, nr. 128)
adjusting various other laws to the opening up of marriage and adoption.
Still in Parliament is a bill to provide for automatic joint parental authority over
children born during a lesbian marriage or a lesbian or heterosexual registered
partnership (bill nr. 24747). Until this bill has become law (which no doubt will happen
in a few months), married and registered lesbian couples who get a child, will need to
petition the court if they want to have joint authority over that child. After the bill
has become law, such joint authority will automatically exist from the moment of birth.
From then on, the differences between registered
partnership and marriage, and between same-sex marriage and different-sex marriage will be
negligible. The position of same-sex and different-sex foreign partners with respect to
marriage, partnership registration and immigration will be identical from 1 April 2001.
For answers to 12 frequently asked questions see http://www.gaykrant.com/index.html
(text also attached below). That site of the biweekly magazine Gay Krant also gives
a summary of the events of the last 16 years leading to the opening up of marriage. That
summary should not be relied on fully for historical and legal detail.
For further legal detail, see the two fact sheets of the Ministry of Justice on
marriage and adoption: http://www.minjust.nl:8080/a_BELEID/fact/fact.htm
. See also my website, with translations of the marriage and adoption laws: http://ruljis.leidenuniv.nl/user/cwaaldij/www/
.
The only differences between a marriage of two men or two women and a marriage of a man
and a woman are concerned with things that are largely beyond the sovereignty of the Dutch
legislature, i.e. biology and foreign law. These differences are threefold:
- The rule that presumes the (male) husband to be the biological father of any child their
wife might get during their marriage, will not apply to lesbian marriages (and naturally
not to male-male marriage either). However, the same-sex partner of a mother or father can
petition the court to be made the adoptive parent of the child. For children born to
lesbian partners, there is no minimum period of joint care before which such adoption can
be requested.
- Intercountry adoption (i.e. adoption of a child whose ordinary place of residence is not
in the Netherlands) will only be possible by a different-sex married couple or by one
individual. Opening up intercountry adoption to same-sex couples would not be very useful,
because the authorities in the original country of the child would most probably not allow
it to be adopted by Dutch same-sex partners.
- Only children born in a heterosexual marriage approved by Parliament can succeed as King
or Queen. However, contrary to wishful speculation by certain authorities, there is
nothing in the Constitution or the Civil Code which would prevent a King, Queen, Prince or
Princess from marrying someone of the same sex. It would be unthinkable that parliamentary
approval of such a marriage would be denied because of the gender of the royal partner.
Therefore, a same-sex marriage would not stop anyone from being King or Queen.
It should be noted that there is no Dutch law restricting access to medically assisted
procreation. It is up to the hospitals to decide. Their discretion is of course limited by
general rules of health law and anti-discrimination law. Most hospitals do not refuse
their services to unmarried or lesbian couples.
Partnership registration of two men or two women (or between a man and a woman) has
been possible in the Netherlands since 1 January 1998. The (provisional) statistics of
Dutch partnership registrations in 2000 have now become available (source www.cbs.nl). Please note, the following figures refer to
registrations; the numbers of partners involved are double the figures given.
| |
two women |
two men |
man + woman |
same-sex total |
grand total |
| 1998 |
1324 |
1686 |
1616 |
3010 |
4626 |
| 1999 |
864 |
897 |
1495 |
1761 |
3256 |
| 2000 |
785 |
815 |
1322 |
1600 |
2922 |
| total |
2973 |
3398 |
4433 |
6371 |
10804 |
So in three years time well over 6000 same-sex couples
registered their partnership. An earlier survey suggested that more than 60% of these
couples would hope to convert their partnership into a marriage. This could mean that
within a year or so some 10.000 gays and lesbians might be married - to someone of the
same sex.
From 1 April 2001 same-sex partners will be able to marry each other (normally after a
waiting period of at least two weeks). From the first moment of that day it will be
possible to convert an existing registered partnership into marriage (without waiting
period). The procedure for an adoption takes a long time, so it will be several months
before the first adoptions by same-sex partners will take place. The first same-sex
marriage ceremony is being planned for the night of 31 March to 1 April. At midnight the
registered partnerships of several same-sex couples will be converted into full civil
marriages; for the event in the City Hall of Amsterdam, see http://www.amsterdam.nl/e_index.html . The
event will be shown live on the internet www.amsterdam.nl/huwelijk_live
.
The frequently asked questions of the Gay Krant ( http://www.gaykrant.com/index.html ):
Is this a gay marriage?
No. The Netherlands does not have gay marriage. It is simply a civil marriage just
like the one that was up until now only available for a man and a woman.
Is this marriage unique in the world?
Yes. This is not a separate partnership arrangement, but the opening of the
existing marriage law for couples of the same sex.
Is there not already a kind of marriage for gays and lesbians?
Yes, 'registered partnership', but that is a separate arrangement, which may not
be called 'marriage'.
Is there a difference between a living-together contract made by a public notary and
marriage?
Yes, a marriage automatically involves third parties; other people and bodies have
to take heed to the marital state, for example by granting protection rights (such as
tenancy, pension and inheritance rights). Marriage is a package of rights and duties which
couples receive with optimal certainty.
Does marriage between two men or two women also have consequences for children?
Yes. The non-biological parent must care for and bring up the child, must
contribute to the costs of this, and can also get legal authority over the child.
Can married gays and lesbians adopt children?
Yes, but for the time being this is only true for children of one of the partners
and for other children who live in The Netherlands.
Do prospective married couples have to meet particular formal requirements?
Yes, the same requirements as for anyone who intends to marry: announcement two
weeks beforehand, no blood relations, of adult age, free will, and not married to anyone
else.
Can a Dutch person marry a foreign partner of the same sex?
Yes, the same rules apply here as were already in force for different-sex couples
wishing to marry. The foreigner does not even have to live in The Netherlands.
Can non-Dutch gay and lesbian couples marry in The Netherlands?
Yes, provided that at least one of the pair already lives in The Netherlands.
Will there be recognition abroad?
Yes and no. Some form of same-sex partnership is acknowledged in many countries.
Dutch same-sex marriages will at least receive that recognition. And foreign judges can
add more rights and duties.
Can one married partner take the other's name?
Yes and no. One partner may use the other's name if they wish, but not in official
documents.
Is there any difference between civil marriage and a church marriage?
Yes. In the Netherlands a church marriage has no legal meaning. A church wedding
is an extra option for religious partners, but they must first enter into a civil
marriage.
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