By Attorney at Law Suhendra Leon (This email address is being protected from spambots. You need JavaScript enabled to view it.)
In my last article, I gave a preview of this article’s theme: The right to family and private life of the LGBTQ+. This is a broad subject, but I will limit myself to the most controversial one, generally known as gay marriage. Marriage is the legal recognized way to create a family bond between two adults. When thinking about gay marriage, most people think about the marriage ceremony, but I am of the opinion that it is just two people saying to each other and to the world that from now on, they are family.
As a lawyer, I see marriages at their worst. I tend to not see marriage in the same romantic view it is perceived by other people, but rather in what it entails legally. We, as a society have decided that by entering into marriage, people will receive all kinds of benefits, and legal protection of their relationship.
For example, married couples get tax benefits, inheritance rights, legal rights in regard to children, the right of the other partner to nullify certain legal actions of the other, widower’s pension, etc. In my opinion, it is unjust that LGBTQ+ persons are not awarded the same legal benefits and protection that straight married couples are awarded.
As it is already known, it is not legally possible in Sint Maarten for two persons of the same sex to get married. Sint Maarteners of the same sex, who have the desire to get married, have to do so in the other countries.
Article 40 of the Charter of the Kingdom of the Netherlands compels all the countries in the Dutch Kingdom to recognize authentic deeds that were drawn up by one of the authorities of the Kingdom. This means that married couples of the same sex that got married in other countries of the Kingdom have the right to register their marriage certificate at the Civil Registry Department (Census Office). However, doing so does not guarantee that they are afforded the same benefits and protections married Sint Maarteners of opposite sex are afforded.
In 2009, a case in which a civil servant, who was married to a person of the same sex, claimed medical expense benefits for his spouse was brought before the Joint Court of Justice of the Netherlands Antilles and Aruba. The Court ruled that as the right of marriage between persons of the same sex was not recognized in the Netherlands Antilles, the spouse could not access these medical expense benefits, as could the spouse married to a person of the opposite sex.
Sint Maarten is a party of the European Convention on Human Rights. All persons that are of the opinion that their human rights, as laid out in this Convention, are violated, can bring a case to the European Court of Human Rights. This Court has ruled in several occasions that the Convention does not impose on the member states the legalization of same-sex Marriage. This is because not enough states that are party to the Convention have recognized the right of persons of the same sex to marry each other. This point of view of the Court is subject to change as more states recognize same-sex marriage.
However, in the case of Oliari and others v. Italy (2015), the Court held that Italy did not fulfil its positive obligation to ensure that the applicants had available a specific legal framework providing for the recognition and protection of their same-sex unions. An example of such legal framework is the registered partnership that was introduced in the Netherlands to facilitate couples of the same sex to have their relationship recognized. At this time, Sint Maarten does not have such a legal framework in place, so it is arguable that Sint Maarten is in violation of human rights as recognized by the Convention.
I am not married, partly because I have not been asked, but for the most part, because I am scared of the legal implications of marriage. But the fact remains I have the choice to get married and have access to all benefits and protection available for my relationship. The LGBTQ+ community is not afforded the same rights and protection that I have. I would appreciate the opportunity to do something about this if the chance presents itself to go to court to address this issue.
