This is a publication of the Netherlands Ministry of Foreign Affairs. FAQ Same-sex marriage 2010

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1 This is a publication of the Netherlands Ministry of Foreign Affairs FAQ Same-sex marriage

2 1. Same-sex marriage 2. Alternative types of partnership 3. Conversion 4. Recognition abroad 5. Non-Dutch nationals 6. Relationships between parents, partners and children Dutch legislation has allowed same-sex marriage under civil law since 1 April It gives same-sex couples practically the same rights as couples of different sexes. This guide for foreign readers answers a number of frequently asked questions about same-sex marriage and gives a concise overview of the Same-Sex Marriage Act. SAME-SEX MARRIAGE Q.1. Are same-sex marriages allowed in the Netherlands? Yes, the Same-Sex Marriage Act, which came into force on 1 April 2001, allows partners of the same sex to enter into a civil marriage. In 1998, it became possible for couples of the same or different sexes to enter into a registered partnership, which is in many ways equal to marriage. The principle of equal treatment was fundamental to the decision in 2001 to allow partners of the same sex to marry. For many people, marriage symbolises their commitment to each other. Q.2. Are there any differences between same-sex and conventional marriages? Under the Same-Sex Marriage Act, same-sex couples have similar rights and obligations to couples of different sexes. The conditions, procedures and consequences of marriage are the same. However, different rules apply to the relationship between couples and their children, and recognition of their marriage abroad (see Q.8 and Q.12). ALTERNATIVE TYPES OF PARTNERSHIP Q.3. What types of partnership can be formalised? Alternatives to civil marriage are as follows: 2

3 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, marriages and registered partnerships. The conditions for entering into a marriage or a registered partnership are similar. This type of partnership was introduced in the Netherlands in Cohabitation agreement A cohabitation agreement sets out the rights and obligations a couple choose for themselves. Unlike marriage or registered partnership, a cohabitation agreement has legal consequences only for the contracting parties. Non-contractual cohabitation Informal cohabitation also has certain consequences, for instance for the partners tax payments and social security benefits. Q.4. What are the differences between marriage and registered partnership? Civil marriage and registered partnership, as defined by Dutch law, are equal in many ways. In both cases, rights and obligations are mainly laid down by law. For example, under both contracts, couples are automatically responsible for the maintenance of their children. There are, however, some slight differences. Marriage Registered partnership Vows Church ceremony Terminating the relationship Standard Can only take place after a civil ceremony Can only be dissolved by the courts Couples choose their own vows. Can take place before the contract is signed Except in cases where both partners agree and have no minor children, registered partnership has to be dissolved by a court. 3

4 Legal relationship to their children By law, both partners to a conventional marriage are automatically the legal parents of their children In a marriage between two women, the non-biological mother must adopt the child to be recognised as its parent. By law, registered partners of different sexes are the legal parents of children born during their partnership, provided the father acknowledges paternity. If both partners are women, the rules are the same as for marriage. Parental responsibility In a marriage between two men, the biological father must acknowledge paternity before the child is born. He will then be recognised as its parent from the moment of its birth. His partner must adopt the child to be recognised as its parent. Partners of different sexes share parental responsibility for children born of their marriage. If both partners are women, they share parental responsibility for children born during their marriage, provided the father does not acknowledge paternity before the child s birth. If both partners are men, the rules are the same as for marriage. Partners of different sexes share parental responsibility for children born to them after they have signed their contract, unless a male third party acknowledges paternity before the child s birth. If both partners are women, they share parental responsibility for children born after they have signed their contract, unless the biological father acknowledges paternity before the child s birth. The courts may grant two men joint parental responsibility. 4

5 Q.5. Has same-sex marriage superseded registered partnership? No. The Same-Sex Marriage Act means that couples of the same or different sexes can choose between civil marriage and registered partnership. CONVERSION Q.6. Can a registered partnership be converted into a marriage? Yes. A registrar of births, deaths, marriages and registered partnerships draws up a deed of conversion, which is entered in the register of births, deaths and marriages. The conversion is also recorded on the marriage certificate. 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. Q.7. Can a registered partnership entered into abroad be converted into a marriage in the Netherlands? Yes, provided the relevant conditions are met and the partnership contract is eligible for recognition in the Netherlands. Consequences of conversion Converting a registered partnership into a marriage does not alter existing rights and obligations. Take the following example. A couple who are registered partners are bringing up a child for which they have joint parental responsibility. Nothing changes if they convert their partnership into a marriage. Nor does it affect their property regime, provided both partners are Dutch nationals and reside in the Netherlands. If this is not the case, conversion can lead to a change in the law applicable to their property regime. They may find, for instance, that the arrangements they made in a pre-partnership agreement no longer apply, and that they are married in general community of property. It is therefore advisable for couples who are not both Dutch nationals or resident in the Netherlands to ask a notary about the law applicable to their property regime before conversion, and whether they need a pre-nuptial agreement. 5

6 RECOGNITION ABROAD Q.8. Are registered partnerships or same-sex marriages recognised abroad? A number of European countries have introduced registered partnership or same-sex marriage. The legislation of the country in question will determine whether it recognises same-sex marriages or registered partnerships of couples of the same or different sexes concluded in the Netherlands, and if so what consequences this recognition will entail. Apart from practical and possibly social problems, they may also encounter legal problems, for instance in relation to rights of inheritance. However, even countries that do not recognise same-sex marriage may, for instance, recognise the property law aspects of the relationship. It is therefore important to get legal advice. The Dutch embassy or consulate will usually be able to say which agency to contact. Q.9. Are same-sex marriages allowed in the Netherlands Antilles and Aruba? No. Same-sex couples cannot marry or enter into a registered partnership in the Netherlands Antilles or Aruba. NON-DUTCH NATIONALS Q.10. 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 to determining whether the marriage can take place in the Netherlands. It may of course matter to the couple in question. Q.11. Can non-dutch nationals marry in the Netherlands? Yes, provided their partner lives in the Netherlands or is a Dutch national. The following rules apply: 6

7 if neither partner is a Dutch national and both live abroad, they may not marry in the Netherlands; if neither partner is a Dutch national, they may marry in the Netherlands provided one of them is resident there; if both partners live outside the Netherlands, they may marry in the Netherlands provided one of them is a Dutch national; partners who both live in the Netherlands may marry even if neither of them is a Dutch national. Certain rules apply to prevent marriages of convenience. Non-Dutch nationals without a permanent residence permit must submit a statement issued by the Aliens Police on their residence status. RELATIONSHIPS BETWEEN PARENTS, PARTNERS AND CHILDREN Q.12. What are the legal consequences of marriage for the partners children? Legal relationship 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. Marriage creates family-law ties between a married couple and their children, which entail rights and obligations. The situation is different if the mother is married to or the registered partner of another woman, or if she is the registered partner of a man who has not acknowledged paternity before the birth. In these cases, the law does not regard both partners as the parents of the child. Only the biological mother is automatically its parent. Her male partner still has the option of acknowledging paternity after the child is born. In that case, he is considered the child s parent from the moment he acknowledges paternity. A Lesbian Co-Parents Bill is currently being drafted to make it easier for a biological mother s female spouse or female registered partner to become the child s legal parent (comother). Under the bill, if the child was conceived with an anonymous sperm donor, the comother would automatically become a legal parent. In the case of a child conceived with a 7

8 known donor who is not taking part in the child s family life, the co-mother would be able to become the child s legal parent simply by acknowledging the child. Under existing Dutch law, a biological mother s female partner can become the child s parent through adoption (see Q.13). This option would also continue to exist under the Lesbian Co-Parents Bill. It is not certain whether the family-law tie created through adoption will be recognised abroad. This depends on the laws of the foreign country in question. 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. Parental responsibility By law, a husband and wife automatically share parental responsibility for any children born of their marriage. Since 1 January 2002, both partners automatically bear parental responsibility under Dutch law for any children born during: a marriage between two women; a registered partnership between two women; a registered partnership between a man and a woman, provided the child has no other legal parent. However, if the biological father acknowledges paternity prior to the child s birth and is therefore its legal parent, the mother and her partner may apply to the courts for joint responsibility for the child. The courts may only grant the application if: the parent s partner has a close relationship with the child; the parent has borne sole responsibility for the child for at least three consecutive years; the parent and his or her partner have shared responsibility for the child s upbringing for at least a year. It is not certain whether the joint responsibility for the child obtained in this way will be recognised abroad. This depends on the laws of the foreign country in question. 8

9 Q.13. Can same-sex partners adopt a child? When the Same-Sex Marriage Act entered into force, the rules on adoption in the Civil Code were amended. Same-sex partners may adopt a child together. Few children in the Netherlands whose family-law ties with their parents have been severed are put up for adoption. Mostly, adoption is by the partner of a child s parent. In such cases, the couple must have lived together for at least three years, and shared responsibility for the child s upbringing for at least one year. Same-sex couples may also adopt a child from another country, though the laws of some countries preclude such adoptions. Q.14. Can same-sex couples share responsibility for a child? Yes. Since 1 January 2002, two women who are married or registered partners automatically share responsibility for children born during their marriage or partnership, provided the biological father does not acknowledge paternity prior to the child's birth (see Q.4 and Q.12). Joint responsibility is also possible in other cases. The courts may grant a married couple joint responsibility for a child provided that the partner of the biological parent has a close relationship with the child and has shared the responsibility for its upbringing for at least a year. The biological parent must have had sole parental responsibility for the child for at least three years. In some cases, the parent s partner may not wish to adopt the child and thereby sever the child's ties with its other biological parent. Instead, the couple may apply for joint parental responsibility, which gives the partner the same rights and obligations towards the child as those borne by the parent or parents. The partner is responsible for every aspect of the child s care and upbringing. The child s surname may also be changed. 9

10 This guide was produced in cooperation with the Ministry of the Interior and Kingdom Relations and the Ministry of Justice. It is available in Dutch, English, French, German and Spanish. For more information: 10

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