Same-sex marriage in Aruba, Curaçao and Sint Maarten

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 in 2002 by a same-sex couple seeking recognition of their Dutch marriage in Aruba. Citing one of the partners' inability to receive health care benefits from the job of the other, as entitled to a spouse in a heterosexual marriage, they accused the 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 their marriage 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".[21]

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 Charter 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, all marriages contracted in the different parts of the Kingdom of the Netherlands, must be accepted in the other parts of the Kingdom as well. It ruled that the matter that Aruba does not have a same-sex marriage law or that it "goes against Aruba's 'way of life'" was 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.[22]

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 married 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".[23] The decision was overturned on appeal in June 2009 by the Common Court of Justice of the Netherlands Antilles and Aruba,[24] which stated that although a same-sex marriage had to be registered as a marriage, this did not require organizations and agencies to give the same effect to them as other marriages.[25][26][27] The court ruled similarly in June 2010 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.[1]

  Marriage and registered partnership

  Registered partnership only

  Limited recognition

On 27 May 2020, the Court of First Instance of Aruba ruled in Fundacion Orguyo Aruba (et al.) v. Country Aruba that the government was acting unlawfully by not offering an alternative to marriage for same-sex couples.[28] The Fundacion Orguyo Aruba appealed parts of the court decision on 6 July 2020, arguing that same-sex couples should be allowed to marry instead of having access to an alternative partnership institution. Registered partnerships were legalized in Aruba in September 2021, but the case continued.

On 13 September 2021, the Court of First Instance in Curaçao found that the exclusion of same-sex couples from marriage was contrary to the equality principle of the Constitution of Curaçao, but left it to the Parliament to address the unlawful discrimination.[3] "There is no justification to deny same-sex couples the right to get married, certainly as long as there is no comparable legal system such as a registered partnership", the court said. The case was filed by a lesbian couple who had been together for more than 10 years and sought the right to marry. The Human Rights Caribbean Foundation said the ruling was a "step forward" and an "asset to anyone who supports fundamental rights and is committed to equality".[29] The government filed an appeal of the decision in June 2022, though Prime Minister Gilmar Pisas had announced immediately after the court ruling that it had plans to appeal.[30]

The Joint Court of Justice of Aruba, Curaçao, Sint Maarten, and of Bonaire, Sint Eustatius and Saba ruled in both cases on 6 December 2022 that the same-sex marriage bans in Aruba and Curaçao were unconstitutional and that same-sex couples must be allowed to marry in those islands. The court ruled that "the fact that marriage is a centuries old tradition" does not justify differential treatment for same-sex couples, the argument that the legalization of same-sex marriages would "weaken marriage" was "objectively unjustified", and that registered partnerships are no acceptable alternative for same-sex couples as marriage carries "symbolic, emotional and intrinsic value" that offers "more protection and stability". The effect of the ruling was stayed until 7 March 2023 pending appeal to the Supreme Court of the Netherlands.[31][32][33] State Secretary Alexandra van Huffelen said the ruling should also apply to Sint Maarten "as all three [islands] have the same legal framework".[34] The Curaçao Government announced its intention to file an appeal on 13 December, followed by the Aruba Government on 24 February.[5]

The opposition Accion 21 party introduced a bill to allow same-sex marriage to Parliament in June 2022.[31]

In September 2018, three LGBT rights organizations presented a bill to legalize same-sex marriage in Curaçao to the Vice President of Parliament, Giselle McWilliam.[35][36][37] 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."[38] Prime Minister Eugene Rhuggenaath also welcomed the measure, saying that it "is now time to debate the issue", and that "exclusion and discrimination against the LGBT community affects human rights."[39] On 4 June 2019, the bill was submitted to Parliament by members of the Partido MAN and the Real Alternative Party,[40][41][42] but it was withdrawn the following year due to lack of support.[43]

In May 2023, MP Rennox Calmes introduced a bill to ban same-sex marriage in the Constitution of Curaçao. The bill would require a two-thirds majority in the Parliament to become law.[44]

Following the December 2022 court ruling that Aruba's and Curaçao's same-sex marriage bans were unconstitutional, Melissa Gumbs, a member of the Parliament of Sint Maarten, said her party was planning on introducing a same-sex marriage bill to Parliament, noting that "there is precedent now within the Caribbean part of the kingdom (of the Netherlands) that it's not right to withhold same-sex marriage rights from people."[4]