April 2001

Same-sex marriages

See also:
Fact sheet Adoption of a child in the Netherlands
Press release Two men or two women can marry in the Netherlands as of 1 april 2001

As from 1 April 2001, it has been possible in the Netherlands for two men or two women to marry. The law governing such marriages, the Same-Sex Marriage Act, entered into force on that date.

There are many similarities to marriage between couples of different sexes. The rules for entering into, concluding and dissolving marriage are the same, as are partners' obligations to each other. And the consequences of marriage between two men or two women are much the same as those of marriage between a man and a woman. There are, however, some major differences relating to children and acceptance abroad.

With the introduction of same-sex marriage, legislation on adoption will also change as of 1 April 2001. Two women or two men may adopt a child as of that date. However, this applies only to children who are habitually resident in the Netherlands. Adoption of a child from another country will still only be possible for married couples of different sexes.

Introduction
Civil marriage, registered partnership, cohabitation agreement
Conditions
Getting married
Consequences
No consequences for the relationship with children
Divorce
Rights and obligations after divorce
Marriage and registered partnership
Recognition of the marriage abroad
Inquiries and booklets

Introduction
Registered partnership was introduced in 1998. Since that time, same-sex couples have been able to enter into a regulated form of cohabitation which, in law, is equal to marriage in practically every way. Nonetheless, it has now been decided to allow same-sex couples to marry. The principle of equal treatment was decisive. For many people, marriage is a symbol that carries a special meaning. They see it as a way of confirming their commitment to each other. There is no reason why same-sex couples should be denied the opportunity to do so.

The Netherlands is the first country in the world to allow same-sex couples to marry. Couples concerned must take account of the fact that their marriage will not always be accepted in other countries. The same also applies to registered partnership.

Civil marriage, registered partnership, cohabitation agreement
From 1 April 2001, couples wanting to formalise a relationship can choose from three options: civil marriage, registered partnership or a cohabitation agreement.

Registered partnership is in many ways equal to marriage. A cohabitation agreement is very different, since it only covers items which the parties themselves want it to cover. With marriage and registered partnership, most of the rights and obligations are laid down by law. Maintenance is a good example. Married couples and the parties to a registered partnership are obliged to support each other. This obligation only applies to the parties to a cohabitation agreement if they have included a provision to this effect.

Another important difference has to do with legal consequences. Marriage and registered partnership have legal consequences for the partners themselves and their relationship with others. A cohabitation agreement only has legal consequences for the parties who have signed it. The differences between marriage and registered partnership are dealt with under the heading Marriage and registered partnership .

Conditions
Marriage is subject to certain rules and conditions. We will look at the main ones.

One partner at a time: No one in the Netherlands may marry more than one person at the same time.

No other marriage or registered partnership: Anyone wanting to marry may not be married already or party to a registered partnership with a person other than the future spouse.

Of age: Anyone wanting to marry must be 18 years of age or older. Exceptions are possible, and it is up to the Minister of Justice to decide. Minors wanting to get married can only do so with their parents or guardian s permission. If this is not possible, the minor may apply to the sub-district court for permission.

Guardianship: Anyone who has been put under the supervision of a guardian because of alcohol abuse or their inability to manage their finances cannot marry without the guardian's permission. If the guardian refuses to give permission, the sub-district court ('kantonrechter') may do so. Anyone who has been put under the supervision of a guardian because of a mental disorder always has to have the permission of the sub-district court.

Consanguinity: Marriage is not allowed between parents and children, grandparents and grandchildren or brothers and sisters. Brothers and sisters who are related through adoption may apply to the Minister of Justice for exemption from this rule.

Foreign partner(s) or partner(s) living abroad: The following rules apply to non-Dutch nationals or residents:

• 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 at least 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.

If at least one of the partners is either a Dutch national or habitually resident in the Netherlands, the question as to whether they may marry will be dealt with under Dutch law. Partners then enter into a marriage if they are allowed to do so under Dutch regulations. Whether the law of the country of which the non-Dutch partner is a national permits same-sex marriage is irrelevant.

Couples need to take account of possible problems they may encounter abroad with the recognition of their marriage. See the section on recognition of marriage abroad for further details.

Rights of residence: To prevent marriages of convenience, certain rules are applicable when couples plan to marry. They apply equally to same-sex couples and couples of different sexes. Non-Dutch partners with no permanent residence permit have to submit a statement issued by the Aliens Police on their status under the Aliens Act.

Getting married
Two people who want to marry first have to give notice of their intention to the civil registrar, usually in the municipality in which one of them is resident. They also have to provide documents showing that they are eligible to marry. The nature of these documents will depend on the situation. In addition to a copy of their birth certificates, they may have to submit evidence that a previous marriage has been dissolved or their registered partnership terminated or a document giving them permission to marry.

The registrar then enters a record confirming that notice has been given of the intention to marry. The marriage cannot in principle be solemnised until two weeks after the date on which this record is entered.

Witnesses: For a marriage to be legally valid, it has to be witnessed by no fewer than two and no more than four persons of 18 years of age or over. Their names and addresses have to be submitted to the registrar when notice is given of the intention to marry.

Marriage vows: The couple solemnise their marriage before the law by taking their marriage vows before the civil registrar.

Marriage certificate: A record is entered of the marriage. After the couple have taken their vows, this record is signed by the newly-weds, their witnesses and the registrar.

Costs: There are costs attached to a civil marriage ceremony. However, every municipality reserves certain times at which couples can marry free of charge. The cost of converting a registered partnership into a marriage will be discussed elsewhere.

Church ceremony: Marriages may only be blessed in church after the civil ceremony has taken place. This is not the case for registered partnerships. It is up to the church communities themselves to decide whether to bless or solemnise the marriage. They are not obliged to do so.

Consequences
The consequences of marriage between two men or two women are much the same as those of marriage between a man and a woman. There are, however, some major differences relating to children and acceptance abroad. Before we look at the differences, we will list the rights and obligations that correspond.

Surname: Under Dutch law, spouses may use each other's surname, in combination with or instead of their own. This does not apply to official documents, in which their own name always has to be used.

Maintenance: Married couples are obliged to do what is within their means to support each other. In principle, they each have to contribute to the costs of running the household.

General community of property: Under Dutch law,within marriage all assets and debts are in principle shared. Couples who want to make alternative arrangements have to do so in a prenuptial agreement, which has to be drawn up by a notary.

Pensions: Anyone who contributes to a pension scheme builds up entitlements to a retirement or surviving dependants' pension. The entitlements built up to a retirement pension during marriage have to be divided between the partners in the event of a divorce. Here too, married couples can make their own arrangements. The surviving dependants' pension accrues to the surviving partner on the death of his/her spouse.

Legal transactions: In certain cases, married couples must have each other's permission before they can enter into obligations or take decisions. Examples include the sale of the matrimonial home and the conclusion of a hire purchase agreement.

Inheritance: The law of succession applies equally to same-sex married couples and married couples of different sexes. However, couples may make alternative arrangements. To do so, they need to arrange for a notary to draw up a will.

Relationship by marriage: Through marriage, couples enter into a relationship with the members of their spouse's family. These "in-laws" have specific rights. For example, in certain court cases, they are not obliged to act as witnesses against their relative's spouse.

No consequences for the relationship with children
A husband and wife are by law the parents of any children born of their marriage. The woman who bears the child is the mother, and the law regards her husband as its father. Marriage creates the family-law ties that bind a married couple to their child, with all the rights and obligations they entail.

However, these rights and obligations do not automatically apply when two women marry. If a child is born during the marriage, the woman that bears it is the mother. But the law only regards her spouse as the other parent if she adopts the child. Marriage as such therefore has no consequences for the relationship between this woman and the child.

The same applies to two men bringing up a child of whom one is the father. Marriage has no consequences for the relationship between the other man and the child.

Maintenance: Nonetheless, though he or she is not the biological parent, the spouse in the examples given above is the step-parent of all the children who form part of the family. As such he or she is obliged to support them throughout the marriage.

If other rights and obligations apply, they are not the consequence of marriage, but of adoption or exercising joint parental responsibility.

Adoption: With the introduction of the Same-Sex Marriage Act, the laws applicable to the adoption of a child who is habitually resident in the Netherlands will also be amended. It is already possible for two men or two women to adopt a child, regardless of their marital status. However, this rarely occurs, since few children are ever put up for adoption in the Netherlands. In most cases, the child will be adopted by its step-parent, i.e. by the partner or new partner of the child's mother or father. Anyone adopting a child becomes its legal parent and all family-law ties with the birth parent are severed. This is a radical step that can only be taken under strict conditions. The interests of the child come first. An important new condition is that the child has nothing more to expect from its birth parent or parents in their capacity as parent. The couple wanting to adopt must be able to prove that they have lived together for at least three years and have cared for the child for at least a year. Likewise, step-parents wanting to adopt their partners' children need to have lived with the partner for at least three years, and cared for the child for at least a year.

Joint parental responsibility: There is another option that is less radical and sometimes proves more practical. Where there is a close relationship between one spouse and the other spouse's child, an application for joint responsibility can be submitted to the court. In that case, each has the same rights and obligations arising from parental responsibility , and has equal responsibility for its care and upbringing. The court can also be requested to change the child's surname to that of the parent or his/her spouse.

Divorce
For a marriage to be dissolved, the court must pronounce the couple divorced. This applies equally to same-sex marriage and marriage between people of different sexes.

Rights and obligations after divorce
After their marriage has been dissolved, former spouses have rights and obligations towards each other and their children.

Maintenance: The financially better off spouse is obliged to support the other spouse.

Pensions: The division of pension rights proceeds according to the Pension Rights (Divorce) Act.

Children: Divorce in itself has no legal consequences for the relationship with children. If the parents or spouses exercise parental responsibility, they continue to do so. However, if one parent is given responsibility he or she is obliged to support the children until they reach the age of 21. This does not mean that the former spouse no longer has any obligations. He or she is obliged to support the children for a period equal to the period of joint responsibility. If this was five years, for example, the former spouse is obliged to support the children for another five years.

However, if the spouse did not have parental responsibility for the children, any obligation to support them ceases on divorce.

Marriage and registered partnership
Can couples who have entered into a registered partnership get married? And exactly what difference does it make?

Conversion: A registered partnership can be converted into marriage. The civil registrar draws up a record of conversion, which is entered in the register of marriages. Conversion has the effect of terminating the partnership and commencing the marriage.

Vice versa, a marriage can also be converted into a registered partnership. The record of conversion is entered in the register of registered partnerships. Conversion can only take place in the municipality in which one of the partners is resident.

Costs: The costs of conversion differ from municipality to municipality and depend on the documents the partners need to submit, and whether they want to mark the occasion with a ceremony.

Consequences of conversion: In principle, conversion has no effect on the existing situation. Take the following situation. Two men have entered into a registered partnership. They are bringing up a child, for whom they have joint parental responsibility. If they have their partnership converted into a marriage, nothing changes. If, in addition, they have entered into their partnership under general community of property, nothing changes here either.

Non-Dutch partners or partners resident abroad: For foreign nationals or Dutch nationals resident abroad, roughly the same rules apply when converting a registered partnership into a marriage (and vice versa) as apply when getting married. They are listed in the section on conditions. A marriage or registered partnership entered into abroad can also be converted, under the rules and conditions listed in the paragraphs above, provided it is recognised in the Netherlands.

Conversion may not be recognised abroad, and may give rise to the same problems as marriage between same-sex couples. It is advisable to get expert legal advice on the matter.

Property regime: If one of the two partners does not have Dutch nationality or does not live in the Netherlands, conversion can affect the property regime.

In fact conversion may bring about a change in the law applicable to the property regime, i.e. the partners' relationship as regards property, both mutual and vis-à-vis third parties. As a result, the partners may find that there is a general community of property while their assets were separate before, or vice versa.

This is why it is important to consult a notary before deciding whether to convert a partnership into a marriage or vice versa. The notary will advise on the need to conclude a prenuptial or pre-partnership agreement, and which country's law can be chosen to apply to the matrimonial property.

Similarities and differences between marriage and registered partnership: The main points are summarised below.

• The conditions for entering into a registered partnership and getting married are the same.
• There are a few small differences in the form the ceremony takes. The marriage vows cannot be changed, but a couple entering into a registered partnership may decide for themselves what vows they wish to take. A marriage can only be blessed in church after the civil ceremony has taken place. This is not the case for registered partnerships.
• A marriage can only be dissolved by the court. A registered partnership can be terminated by the partners themselves. Legal separation only applies to marriage, not to registered partnership.
• The rights and obligations partners have towards each other are the same in both cases.
• There are major differences in the relationship with children. In law, a child born of the marriage between a man and a woman has both spouses as its parents. This is not the case where two women or two men are married, or the couple (either same sex or of different sexes) has entered into a registered partnership.

Recognition of the marriage abroad
At the start of this booklet, we pointed out that the Netherlands is the first country in the world to allow same-sex couples to marry. Some European countries have introduced registered partnership, but the Netherlands occupies a unique position when it comes to marriage. This means that same-sex married couples will have to take account of the fact that their marriage and its legal consequences will not always be accepted in other countries.

Legal advice: Apart from practical problems and problems in the social sphere, a same-sex married couple may also encounter legal problems. During a short stay abroad, on holiday for instance, the problems are likely to be practical or social in nature. But if they plan to stay abroad longer, or to emigrate, legal problems are likely to arise, for instance in relation to rights of inheritance. However, the fact that a country does not recognise the marriage does not mean that it attaches no legal consequences to the marriage at all. It is possible, for instance, that the property law aspects of the relationship are recognised.

Before such problems can arise, it is important for couples to seek expert legal advice either in the Netherlands or in the country in which they are residing. It might, for instance, be necessary to make further arrangements with regard to their property, or to make a will. The Dutch consulate will usually be able to say which expert or agency to contact.

The Netherlands Antilles and Aruba: Same-sex marriage is recognised in the Netherlands Antilles and Aruba, though it is not possible for same-sex couples to marry there.

Inquiries
If you want more information or wish to order one of the booklets on family law, please contact the government information line:

Postbus 51 Infolijn
Tel. 0800 80 51 (freephone)
The line is open Monday to Friday from 09.00 to 21.00 hours
Website: www.postbus51.nl
e-mail: webmaster@postbus51.nl

Or contact:

The Ministry of Justice
Information Department
Internal and External Communication Division
Postbus 20301
2500 EH Den Haag
Tel. +31 (0)70 370 68 50 (open Monday to Friday from 09.00 to 17.00 hours)
e-mail: voorlichting@best-dep.minjust.nl

For more information you can also contact:

• The Population Affairs Department (Afdeling Burgerzaken) in the municipality in which you live
• The Notaristelefoon (The notary help line) www.notaris.nl

The following booklets are available in English:

• Same-sex marriages
• Registered partnership
• Choice of name. Information on the rules for choosing a surname
• Matrimonial property law and The Hague Convention

The following booklets are only available in Dutch: