Private international law aspects of homosexual couples: The Netherlands Report

ion from the biological reality that same-sex couples cannot conceive children naturally. It was here, however, that the unanimity of the Committee floundered. Only five of the eight members supported the opening of civil marriage to same-sex couples. Three discernible categories of arguments were forwarded by the members of the Committee on both sides. The first category concerned arguments related to the principle of equality; the second, the social meaning of the marital bond and finally the international repercussions of such a move. The majority of the Committee recognised the flexible and continually evolving nature of marriage and stressed the importance of the principle of equality above all other issues. The minority did not see equality as an issue, believing instead that same-sex and different-sex couples were not equal since same-sex couples were unable to reproduce naturally. It was noted by all members that international recognition of such an institution could cause problems for those couples wishing to have their partnership recognised abroad, but the majority indicated that such couples would be aware of the difficulties and eventually the opening of civil marriage in The Netherlands could have a positive rather than negative effect on international recognition. The Cabinet, led by Prime Minister Kok, felt that the scales were not tilted in favour of opening civil marriage to same-sex couples, although the Cabinet did agree to allow same-sex couples to adopt Dutch children. Nonetheless, after the 1998 general elections and the reappointment of the ‘purple coalition’, the Cabinet agreement stated that it would submit a proposal to Parliament before the 1 January 1999 calling for the opening of civil marriage to same-sex couples. In the meantime, such a proposal was sent to the Council of State along with a proposal to allow samesex couples to adopt children. Less than two years later both Chambers accepted the proposals. On the 1 April 2001, The Netherlands became the first country in the world to allow for same-sex civil marriage. 1.2. Structure of this Paper This paper has been divided into three main sections. Section 2 will deal briefly with the substantive law rules relating to the celebration of a same-sex marriage and the registration of a partnership. Section 3 will deal solely with the private international law aspects of same-sex marriage, whilst Section 4 will be devoted to an analysis of the relevant private international law rules in relation to registered partnership. In order to aid simultaneous comparison between the relevant rules for these two institutions the same structure has been used in each section. However, from the outset it must be mentioned that this paper can, in the limited space available, only attempt to deal with some of the aspects related to such relationships. A choice has therefore been made to limit this paper to the structural aspects of such relationships, i.e. the establishment of the relationship (Sections 3.1 and 4.1) and the dissolution thereof (Sections 3.2 and 4.2). In Section 5 a number of conclusions will be reached with regards the approaches taken and the possible improvements which can be made. The following abbreviations have been used throughout this paper: 21 Kortmann Commissie 1997, p. 23, § 5.4. 22 Kortmann Commissie 1997, p. 17-21, Chapter 4. 23 The Cabinet was called the ‘purple coalition’ because when the colours of the main political parties in the Cabinet are mixed, purple is the result. 24 There were of course those academics who were against the opening of marriage to same-sex couples, although these commentators represented a minority in Dutch literature: e.g. Nuytinck 1996, p. 125.