Text of Dutch bill and explanatory memorandum on the opening up of marriage for same-sex partners introduced in Parliament on 8 July 1999 printed as parliamentary paper nr. 26672

Summary-translation by Kees Waaldijk LL.M. Universiteit Leiden, The Netherlands,

Draft-version 23 July 1999

All explanations and comments between square brackets have been added by me. Square brackets are also used to indicate omitted or summarised passages. For further background information on the lengthy process leading up to this bill, and for future updates on its passage through parliament and possible amendments to it, see COC's web site

This is an unofficial translation and I am not a professional translator. Please inform me when putting this text on any internet-site. Please consult me before publishing it on paper. All copyrights are mine (W).

Parliamentary paper 26672

Amendment of Book 1 of the Civil Code, concerning the opening up of marriage for persons of the same sex (Act on the Opening up of Marriage)

NR. 2: LEGISLATIVE PROPOSAL

We Beatrix [...];
[preamble:]
considering that it is desirable to open up marriage for persons of the same sex and to amend Book 1 of the Civil Code accordingly;

Article I
A and B
[amendments to articles 20 and 20a, concerning administrative duties of the registrar]

C
[amendment of article 28, concerning the change of sex in the birth certificates of transsexuals: Being not-married shall no longer be a condition for such change.]

D
Article 30 shall read as follows:

Article 30
1. A marriage can be contracted by two persons of different sex or of the same sex.
2. The law only considers marriage in its civil relations.

[Until now, article 30 only consists of the text of the second paragraph.]

E
Article 33 shall read as follows:

Article 33
A person can at the same time only be linked through marriage with one person.

[Until now, the text of article 33 only outlaws heterosexual polygamy.]

F
In article 49a, paragraph 1, the words "with a person of the opposite sex" shall be inserted after the word "marriage".

[This article deals with declaration of non-impediment, to be given to Dutch nationals who want to contract a marriage in another country. Such declarations shall now only be given to Dutch nationals wishing to contract a marriage with a person of the opposite sex.]

G
A new article 77a shall be inserted:

Article 77a
1. When two persons intend to convert their marriage into a registered partnership, the registrar of the domicile of one of them shall make a certificate of conversion. If the spouses are domiciled outside the Netherlands and want to convert their marriage into a registered partnership in the Netherlands, and at least one of them has Dutch nationality, conversion will take place with the registrar in The Hague.
2. A conversion terminates the marriage and starts the registered partnership on the moment the certificate of conversion is recorded in the register of registered partnerships. The conversion does not affect the paternity over children born before the conversion. Neither does it affect the consequences of the marriage.

H
[amendments to article 80a, concerning registered partnership: The minimum age for marriage and registered partnership is 18, but for marriage it is reduced to 16, if the woman is pregnant or has given birth; this exception shall now also apply to registered partnership.

Furthermore, annulment of an underage marriage is not possible after the female spouse has become pregnant; the same shall now apply to an underage registered partnership.]

I
A new article 88f shall be inserted:

Article 88f
1. When two persons intend to convert their registered partnership into a marriage, the registrar of the domicile of one of them shall make a certificate of conversion. If the spouses are domiciled outside the Netherlands and want to convert their registered partnership into a marriage in the Netherlands, and at least one of them has Dutch nationality, conversion will take place with the registrar in The Hague.
2. A conversion terminates the registered partnership and starts the marriage on the moment the certificate of conversion is recorded in the register of marriages. The conversion does not affect the paternity over children born before the conversion. Neither does it affect the consequences of the registered partnership.

J
Article 395 shall read as follows:

Article 395
Without prejudice to article 395a, a stepparent is obliged to provide the costs of living for the minor children of his spouse or registered partner, but only during his marriage or registered partnership and only if they belong to his nuclear family.

[Until now this article only applies to marriage, not to registered partnership.]

K
Article 395a, second paragraph, shall read as follows:

2. A stepparent is obliged to provide [the costs of living and of studying] for the adult children of his spouse or registered partner, but only during his marriage or registered partnership and only if they belong to his nuclear family and are under the age of 21.

[Until now this article only applies to marriage, not to registered partnership.]

Article II

Within five years after the entering into force of this Act, Our Minister of Justice shall send Parliament a report on the effects of this Act in practice, with special reference to the relation to registered partnership.

Article III

This Act shall enter into force on a date to be determined by royal decree.

Article IV

This Act shall be cited as: Act on the Opening up of Marriage.

Parliamentary paper 26672

Amendment of Book 1 of the Civil Code, concerning the opening up of marriage for persons of the same sex (Act on the Opening up of Marriage)

NR. 3: EXPLANATORY MEMORANDUM

[The explanatory memorandum is signed by Mr. Job Cohen, State-Secretary for Justice. It is a lengthy text. Therefore I have only translated some brief passages.]

[...]

Amendments - where necessary - in other books of the Civil Code and in other legislation will be proposed in a separate bill. [...]

1. History

[...]
From the government's manifesto of 1998 (Parliamentary Papers II, 1997/98, 26024-9, p. 68) it appears that the principle of equal treatment of homosexual and heterosexual couples has been decisive in the debate about the opening up of marriage for persons of the same sex.

2. Equalities and differences between marriage for persons of different sex and marriage for persons of the same sex.

[...]
As to the conditions for the contracting of a marriage no difference is made between heterosexuals and homosexuals [...].

[For example, only one of the persons wishing to marry needs to have either his or her domicile in the Netherlands or Dutch nationality. Also, two brothers or two sisters will not be allowed to marry each other, although the bill forgets to amend article 41 accordingly; an oversight which no doubt will get corrected.]

The differences between marriage for persons of different sex and marriage for persons of the same sex only lie in the consequences of marriage. They concern two aspects: firstly the relation to children and secondly the international aspect. [...]

[According to article 199 the husband of the woman who gives birth during marriage is presumed to be the father of the child.] It would be pushing things too far to assume that a child born in a marriage of two women would legally descend from both women. That would be stretching partnership was introduced in the Netherlands on 1 January 1998. In 1998 4556 couples (including 1550 different-sex couples) have used the possibility of contracting a registered partnership [...]. Compared to other countries with registered partnership legislation the interest in registered partnership in the Netherlands is relatively high [...].

The relatively high number of different-sex couples that contracted a registered partnership in 1998 and the results of a quick scan evaluation research [Yvonne Scherf, Registered Partnership in the Netherlands. A quick scan, The Hague: Ministry of Justice 1999; that is the English translation of the original report] make it plausible that there is a need for a marriage-like institution devoid of the symbolism attached to marriage.

Therefore the government wants to keep the institution of registered partnership in place, for the time being. After five years the development of same-sex marriage and of registered partnership will be evaluated. Then [...] it will be possible to assess whether registered partnership should be abolished. [...]

4. International aspects

[...]
As the Kortmann-committee has stated (p. 18) the question relating to the completely new legal phenomenon of marriage between persons of the same sex concerns the interpretation of the notion of public order to be expected in other countries. Such interpretation relates to social opinion about homosexuality. The outcome of a survey by the said committee among member-states of the Council of Europe was that recognition can only be expected in very few countries. This is not surprising. [...] Apart from the recognition of marriage as such, it is relevant whether or not in other countries legal consequences will be attached to the marriage of persons of the same-sex. [...] As a result of this spouses of the same sex may encounter various practical and legal problems abroad. This is something the future spouses of the same sex will have to take into account. [...] However, this problem of "limping legal relations" also exists for registered partners, as well as for cohabiting same-sex partners who have not contracted a registered partnership or marriage.

5. Conversion of marriage into registered partnership and of registered partnership into marriage

[...]

6. Adaptation of computerised systems

[...]

7. Explanation per article

[...] Article I - D

[...] The principle of gender-neutrality of marriage is expressed by [the new article 30, paragraph 1].

[...]

Article III
[...] The aim is to let this Act enter into force on 1 January 2001.

[Given the clear commitment of the three coalition parties to this bill, expressed in the government manifesto of August 1998, the passage through the Lower House of Parliament should be politically unproblematic. The bill would probably also get a majority in the Upper House. All this would easily take more than one year, hence the foreseen date in 2001. The greatest risk for the passage of this bill is a possible breakdown of the current coalition of social democrats, liberals, and social-liberal democrats. That could happen over a number of completely unrelated issues. Such a breakdown would normally lead to new elections, and thus at least to delay in the passage of the bill. Furthermore, if then a new coalition would be formed including the christian democrats, the new government might withdraw the bill. But that is mere speculation.]