¹ Since the Act of 21 Dec 2000, Staatsblad 2001 No 9, Art 1.30(1) of the Dutch civilcode reads: 'a marriage can be entered into by two persons of different or same sex'.Google Scholar

² ‘Projet de loi ouvrant le mariage à des personnes de même sexe et modifuint certaines dispositions du Code civil’.Google Scholar

³ Moniteur Beige (Official Gazette) 28 Feb 2003 ed 3, pp 9880–9883.Google Scholar

⁴ Cf Doc Parl 50 2165/002, at p 24.Google Scholar

⁵ The notion and regime of statutory cohabitation, governed by Art 1475–1479 Civil code, was introduced by the ‘Loi du 23 novembre 1998 instaurant la cohabitation légale’, which entered into force on 1 Jan 2000.Google Scholar

⁶ See the exposé des motifs introducing the 1995 Bill on the ‘contrat of common life’(contrat de vie commune), Doc No 170/1–95/96, p 2.Google Scholar

⁷ In this, the approach of the Belgian courts mirrored the attitude of their Frenchcounterparts. Until the introduction of the Pacte Civil de Solidarité (PACS) in the French civil code by the law of 15 Nov 1999, the French Cour de cassation had repeatedly refused to admit that same-sex cohabiting partners could benefit from the various advantages open to heterosexual couples. This position was sometimes motivated by textual arguments (‘conjoints’ en union libre, vie ‘maritale’), see: Cass Soc 11.7.1989 (2 decisions), Gaz Pal 1990, 216. France's highest court eventually gave a definition of the concept of concubinage symmetrical to that of marriage in 1997; see: Cass Civ 3éme 17.12.1997, D. 1998, 111. The legislature intervened, adding a provision in thelaw of 15 Nov 1999 establishing the notion of registered partnership. Since then, art 515–8 of the French civil code defines concubinage as the factual, stable and continuous union of two persons, whether of different or same sex, who live as a couple.Google Scholar

⁸ Some first instance courts have adopted a liberal approach, considering that de facto cohabitation (‘menage de fait’) possibly included same-sex couples; eg: decision of the tribunal du travail de Charleroi, section de Haine-Saint-Pierre, of 26 June 1990 (No JS45035_l). Other courts, taking account of sectoral legislative definitions of the notion of de facto cohabitation as ‘cohabitation of a man and a woman living as a married couple’ (‘cohabitation d'un homme et d'une femme qui vivent ensemble maritalement’ as in the decree of 21.6.1990), have refused to extend the status of de facto cohabitation to any form of cohabitation but heterosexual; see: Cour du Travail de Liége, section de Liége (8é chambre), 24 June 1998, N∘ JS51253_1.Google Scholar

⁹ According to this principle, any contract by which a person would want to change any element of his/her personal status (whether individual, familial or social) is deemed to be void.Google Scholar

¹⁰ Proposition de loi concernant le contrat de vie commune (Doc Parl No 170/1–95/96).Google Scholar

¹¹ In the same vein, another bill had been introduced with the aim to update Belgian law and to adapt it to post-modern realities. This Bill (Doc Parl No 372/1–95/96), which was to create a newinstitution of civil union (union civile), did not cover a number of issues included in the proposal for the creation of the contrat de vie commune.Google Scholar

¹² O De, Schutter, and A, Weyembergh, “Statutory Cohabitation‘ Under Belgian Law’, Legal Recognition of same-Sex Partnerships-A Study of National, European and International Law, in R., Wintemute & M, Andenæs (eds), Hart, Oxford, 2001, at p 467, 471.Google Scholar

¹³ The Chamber of Representatives considered three bills jointly:the Bill establishing the ‘contract of common life’ (cited above), as well as two proposals to outlaw all forms of discrimination based on sexual orientation (proposition de loi relative à l& protection, contre les discriminations fondées sur le sexe et les tendances sexuelles ou relationnelles(Doc Parl No 600/1–95/96) and proposition de loi modifiant le code pénal, abrogeant là loi du 30 juillet 1981 tendanta réprimer certains actes inspires par le racisme ou la xénophobie et modifiant la loi du 15 février 1993 créant un Centre pour L' égalité des chances et la lutte contre le racisme (Doc Parl No 1089/1–95/96)).Google Scholar

¹⁴ Because the main aim of the original proposal was to provide non-married couples with a ‘minimal material security’it was not restricted to patrimonial aspects until the initial bill was amended in early 1998. The Proposition de loi concernant le contrat de vie commune, Amendment No 1 (Doc Parl No 170/2–95/96) constituted the basis of the parliamentary discussionswhich resulted in the adoption of the institution of ‘statutory cohabitation’.Google Scholar

¹⁵ Schutter, O De &Weyembergh, A, (see above, note 11), p 466 & 468 et seq.Google Scholar

¹⁶ Proposition de loi organisant le partenariat enregistré (Doc Parl No 1417/1–97/98).Google Scholar

¹⁷ The preoccupation with the elimination of all confusion between marriage and registered partnership is reflected throughout the bill; see the comments of the proposed provisions (Doc Parl No 1417/1–97/98, p 2 et seq.)Google Scholar

¹⁸ Art 2 of the bill.Google Scholar

¹⁹ Art 4 of the bill.Google Scholar

²⁰ The traditional principle ‘pater est quern nuptiae demonstrant’ (art 315–318 Code civil) was made inapplicable as well as all claims resulting from the application of this principle (art 322 Code civil).Google Scholar

²¹ Proposition de loi organisant le partenariat enregistré (Doc Parl No 1417/1–97/98), p 1.Google Scholar

²² The Dutch experience has since shown that equality is not really achieved through the alignment of the legal effects of a new legal construct on those of marriage. That the importance of and Sweden v Council ⊏2001⊐ ECR 1–319. In this case the Court of Justice refused to expand the term ‘married’ or spouse' to include registered partners and denied benefits available to ‘married officials’ to a Swedish employee of the Council who was in a registered partnership (which, under Swedish law, provides most of the rights attached to marriage-except those relating to filiation).Google Scholar

²³ Proposition de loi modifiant les articles 144, 162 et 163 du Code civil, Doc Parl No 2208/1–98/99.Google Scholar

²⁴ This was followed by a number of other bills which led to the adoption of the Act opening marriage to persons of the same-sex and modifying certain provisions of the civil code of 13 Feb 2003. The bills considered by the Parliament include the following: Projet de loi ouvrant le mariage à des personnes de même sexe et modifiant certaines dispositions du Code civil (Doc Parl 50 2165/ (2002/2003), Proposition de loi complétant le Code civil en vue de faire de l'appartenance à des sexes différents une condition du mariage (Doc Parl 50 0485/ (1999/2000), Proposition de loi modifiant les articles 144, 162 et 163 du Code civil (Doc Parl 50 0692/ (1999/2000), Proposition de loi modifiant le Code civil en ce qui concerne les mariages homosexuels(Doc Parl 50 0861/ (1999/2000), Proposition de loi complétant Varticle 144 du Code civil en ce qui concerne le mariage de personnes du même sexe (Doc Parl 50 1011/ (2000/2001), Proposition de loi modifiant le Code civil en vue d'autoriser l'adoption par les cohabitants légaux (Doc Parl 50 1419/ (2000/2001), Proposition de loi modifiant le Code civil en ce qui concerne la reconnaissance de filiation (Doc Parl 50 1433/ (2000/2001).Google Scholar

²⁵ The Justice Minister had asked the Conseil d'Etat in July 2001 to give an advisory opinionon the draft bill opening marriage to same-sex persons and modifying certain provisions of the Civil code. In its Avis 31.008/2 the Conseil d'Etat concluded that the draft bill should be abandoned.Google Scholar

²⁶ The principle of non discriminatcirc;ion is enshrined in art 11 of the Belgian Constitution, which provides: ‘La jouissance des droits et libertés reconnus aux Belges doit être assurée sans discrimination. A cette fin, la loi et le décret garantissent notamment les droits et libertés des minorites idéologiques et philosophiques’.Google Scholar

²⁷ Doc Parl 50 1692/001, pp 4–6. Doc Parl 50 2165/002, pp 5–6.Google Scholar

²⁸ Doc Parl 50 1692/001, pp 18–19.Google Scholar

²⁹ See above, p 1041.Google Scholar

³⁰ Differences between married and non-married couples persist both in terms of the exclusion of the latter from the benefit of certain advantages (eg as regards the pension de survie) or of the imposition of additional administrative burden to achieve what is automatically afforded to married couples (as in the field of succession).Google Scholar

³¹ Response of the Minister of Justice, in Doc Parl 50 2165/002, p 19.Google Scholar

³² Taking account of the absence of express restriction of marriage to persons of the opposite gender, a bill was proposed on 19 Feb 1997 to the effect of making gender difference a condition of marriage. See Doc Parl. 932/1–96/97.Google Scholar

³³ Matrimonium means, ‘regime of maternity’.Google Scholar

³⁴ Article 144 Code civil.Google Scholar

³⁵ Article 161–164 Code civil.Google Scholar

³⁶ Decision of 30 July 2002, Joslin v New Zealand, CCPR/C/75/D/902/1999. However the Human Rights Committee's decisions are only recommendations or views, which are not binding on the State parties.Google Scholar

³⁷ Rees v The United Kingdom (1986) 9 E.H.R.R. 56, at $49.Google Scholar

³⁸ See, in favour of this interpretation, the concurring individual opinion expressed by MrLallah, Rajsoomer and MrScheinin, Martin (both members of the Human Rights Committee) which is attached to the view of the Committee in the case of Joslin V New Zealand (above note 36). The authors went on to admit that a denial of certain rights or benefits to same-sex couples that are available to married couples may amount to discrimination prohibited under article 26 ICCPR, unless otherwise justified on reasonable and objective criteria.Google Scholar

³⁹ Art 5 $ 2 provides: ‘There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in any State Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent’.Google Scholar

⁴⁰ Goodwin v UK application No 28957/95, ECHR decision of 11.7.2002,$98 et seq.Google Scholar

⁴¹ Article 9 of the Charter of Fundamental Rights of the EuropeanUnion, signed on 7 Dec 2000, provides: ‘The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights.’ As mentioned in the explanations relating to the complete text of the Charter, ‘the wording or art 9 [which is] based on art 12 ECHR… has been modernised to cover cases in which national legislation recognises arrangements other than marriage for founding a family. This instrument neither prohibits nor imposes the granting of the status of marriage to unions between people of the same sex. This right is thus similar to that afforded by the ECHR but its scope may be wider when national legislation so provides.'Google Scholar

⁴² The grounds of invalidity of a marriage are exhaustively listed in articles 180 et seq Code civil.Google Scholar

⁴³ Doc Parl 50 2165/002, p. 6. Responding to some questions raised during the discussion of the bill, Verwilghen, Mr also mentioned that the government majority did not consider the question of adoption by same-sex couples ripe for debate, cf Doc Parl 50 2165/002, p 19. It was however noted that this could be reopened at a later stage.Google Scholar

⁴⁴ This argument had been used in the context of the proposed registered partnership. See above, p 1041.Google Scholar

⁴⁵ Kamerstukken II 1998/99, 26672 B.Google Scholar

⁴⁶ Act of 21 Dec 2000, Staatsblad 2001 No 9. By another act of 21 Dec 2000, Staatsblad 2001 No 10, the Netherlands permitted same sex spouses to adopt as a couple.Google Scholar

⁴⁷ Doc Parl 50 2165/002, p 7.Google Scholar

⁴⁸ See above, p 1046. On the impact of the Acts of 21 Dec 2000 on Dutch child law, see: Schrama, W, ‘ Reforms in Dutch Family Law During the Course of 2001: Increased Pluriformity and Complexity’, in The International Survey of Family Law 2002, A, Bainham ed, Jordan, Bristol 2002, pp 277–303.Google Scholar

⁴⁹ This position would not be changed under the Draft Belgian Code on Private International Law, Article 46.Google Scholar

⁵⁰ See Rigaux, F & Fallon., M, Droit international privé, droit positif, Larcier, Brussels 1993, pp 308–311, para No 9 et seq.Google Scholar

⁵¹ One could wonder whether the Belgian authorities would also refuse to celebrate the marriage of two same-sex partners whose personal law entails an institutional framework analogous to marriage but open to homosexuals under another name. A restrictive interpretation of art 170ter does not allow a marriage to proceed in these conditions.Google Scholar

⁵² Whilst it is not entirely impossible that one partner pretends that he/she has become habitually resident in the Netherlands in order to be able to get married there, it is even less likely (considering the requirements of a change of citizenship) that two homosexual companions would be prepared to acquire Belgian nationality under false pretences for the sole purpose of getting married. But in both cases the attraction of getting married in Belgium or the Netherlands for homosexuals living abroad does not seem to be more than symbolic, considering the expected absence of recognition of such union abroad.Google Scholar

⁵³ Though one has to take into account that the application of the doctrines of effet atténué de l' ordre public or Inlandsbeziehung could potentially lead to different outcomes.Google Scholar

⁵⁴ Another possible question would relate to a possible interpretation of this Convention as preventing contracting states to refuse to recognise a foreign single-sex marriage on the basis that the difference of gender is not one of the listed requirements justifying non recognition.Google Scholar

⁵⁵ See: 2002/C115E/015 Reply to written question E1830/01 to the Council. The situation of non married homosexuals has yet to be examined at an interinstitutional level as part of the coming reform to the staff regulations.Google Scholar

⁵⁶ OJ 2000 L160Google Scholar

⁵⁷ The same applies to the European regulation on free movement: while homosexuals are, as individuals, beneficiaries of the principle of free movement, there is no right of family reunion for the homosexual spouse of a worker who has exercised his right of free movement in another member state.Google Scholar

⁵⁸ 2003/C28E/002 Answer to written question E3261/01.Google Scholar

⁵⁹ On the question of the international law treatment of same-sex partnerships, see:d'Oliveira, HU Jessurun, ‘Registered Partnerships, Pacses and Private International Law, Some Reflexions’ Rivista di diritto Internationale privato e processuale, 36 (2000), 293–322.Google ScholarFulchiron, H ‘Réflexions sur les unions hors mariage en droit international privé’, Journal du Droit International 2000, 889–913;Google ScholarG, Khairallah., ‘Les ‘partenariats organisés’en droit international privé(propos autour de laloi du 15.11.1999 sur lePACS)’,Revue Critique de Droit International, Privé 2000, 317–330;Google ScholarM, Mignot ‘Le partenariat enregistre en droit international privé’, Revue Internationale de Droit Compare2001, pp. 601 et seq. Also dealing with same-sex marriages, J Murphy, ‘The Recognition of Same-sexFamilies in Britain: the Role of Private International Law’,International Journal of Law, Policy and the Family 16 (2002),181–201.Google Scholar

⁶⁰ A life partnership Act entered into force in Germany on 1st Aug 2001: Gesetz zur Beendigung der Diskriminierung gleichgeschlechtlicher Gemeinschaften: Lebenspartnerschaften, Bundesgesetzblat(official gazette) I at p 266. This form of registered partnership is exclusively open to partners of the same gender and has many of the effects of a marriage. In its decision 1/BvF 0/01 of 17th July 2002, the German federal constitutional court (Bundesverfassungsgericht) rejected a claim that the 2001 Act was unconstitutional.Google Scholar

⁶¹ Rejecting the idea of a total assimilation, Fulchiron, H, above note 57. See also Mayer, P, & Heuzé, V, Droit International Privé, Montchrestien, Paris, 7th ed 2001, No 547, at p 364.Google Scholar

⁶² To determine whether a foreign legal construct can be seen as equivalent to a (Belgian)marriage, the function (as opposed to the name) of the foreign institutional framework is, according to the commentary of art 58 of the Draft code of private international law, decisive. In particular, the fact that an obligation of fidelity or an impediment to contract a subsequent marriageare attached to the unfamiliar juridical entity would prompt the characterisation as marriage.Google Scholar

⁶³ It is to be noted however that other forms of cohabiting status, whose effects do not parallel those of a marriage, would fall within a separate category of ‘shared life relationship’(relation de vie commune), governed by art 58 et seq of the Draft code of private international law, unless their effects would not exceed those of a contract—in which case the private international law rules governing contract would have to be applied.Google Scholar