Same-Sex Marriage Law
Marriage and family law governs relationships arising from marriage, divorce, childbirth, adoption, custody, guardianship, alimony, or property relations between husband and wife and between family members. In other words, marriage is not only a certificate but also a ground to protect other relationships arising from the marriage. However, traditionally speaking, marriage and family law only focuses on heterosexual marriages. Today, there are many who identify as lesbian, gay, bisexual, and transgender (LGBT). According to a survey only for the US, the number of same-sex couples was 646,500 in 2017 (The Williams Institute, 2017), and this number has not stopped. At the same time, many questions were raised surrounding same-sex marriage, such as whether the law allows those people to get married, or legal issues arising on the basis of same-sex relationships. Therefore, this article will analyse the legal framework in some jurisdictions worldwide to answer these questions.
History of Same-Sex Marriage Law
Requesting for same-sex marriage is not a new topic. Many same-sex couples have sought legal marriage worldwide. In 1970, Richard Baker and James Mc Connell applied for a marriage license in Minnesota, in the United States. Unfortunately, they could not obtain the marriage licence because they were both men. When they went to court to request their right, Minnesota and the supreme court did not approve their case because the legal system was opposed to same-sex marriage (Baker v. Nelson, 1972). In 2015, the US Supreme Court ruled that the fundamental right to marry would be guaranteed to same-sex couples (Obergefell v. Hodges, 2015), a case which is viewed as a milestone for the LGBT community as it signified that they were now able to legally marry in all 50 states of the United States.
The Netherlands was the first country in the world to legalise same-sex marriage. The regulation was passed by the Dutch Parliament in December 2000 and came into effect on 1st April 2001. Accordingly, the Dutch Civil Code states that “A marriage may be entered into by two persons of a different or of the same gender (sex)” (Article 1(1), Title 1.5 Marriage, Dutch Civil Code). This set the stage for a wave of legalisation that swept across Europe, North America, and other parts of the world.
As a result, in the 2000s, a few countries including Belgium (2003), Canada (2005), Spain (2005), South Africa (2006), Norway (2008), Mexico (2009), and Sweden (2009), legalised same-sex marriage, respectively. From 2010 to 4th October 2022, 32 countries have legalised same-sex marriage: Iceland (2010), Portugal (2010), Argentina (2010), Denmark (2012), Uruguay (2013), New Zealand (2013), France (2013), Brazil (2013), England and Wales (2013), Scotland (2014), Luxembourg (2015), Finland (2015), Ireland (2015), Greenland (2015), the United States (2015), Colombia (2016), Germany (2017), Malta (2017), Australia (2017), Austria (2019), Taiwan ( 2019), Ecuador (2019), Costa Rica (2020), Switzerland (2021), Chile (2021) and Slovenia (2022) (Business Insider Nederland News, 2022).
Legal Analysis on Same-Sex Marriage Law and Rulings in Certain Jurisdictions
Legalising same-sex marriage provides legal recognition and protection to same-sex couples, granting them the same rights as opposite-sex couples. To mention a few such rights, they would have access to social recognition, adoption rights, financial benefits, tax benefits, inheritance rights, and access to health care. Legalising same-sex marriage promotes equality and non-discrimination and, as the Universal Declaration of Human Rights 1948 (UDHR) states, allows “men and women of full age, without any limitation due to race, nationality or religion, [to] have the right to marry and to found a family” (Article 16(1) the UDHR). In the United States, the Fourteenth Amendment Equal Protection and Other Rights states that:
“All persons born or naturalised in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” (Section 1 of the Fourteenth Amendment Equal Protection and Other Rights).
Based on this document, Justice Anthony Kennedy asserted that the right to marry is a fundamental right inherent in the liberty of the person and is therefore protected by the due process clause (Obergefell v. Hodges, 576 U.S. 644 (2015)). This judgment is also an important milestone marking the recognition of same-sex marriage in the United States.
Furthermore, legalising same-sex marriage protects these couples and grants them the same financial benefits as opposite-sex married couples, such as tax benefits, inheritance rights, access to health care and more. Accordingly, married couples can file their taxes jointly or individually under the regulation “spouse“ of the German Income Tax Act (Einkommensteuergesetz). Additionally, each person in a same-sex married couple is defined as “relative“ in a tax regulation base on Section 15(1)(2) of the Fiscal Code of Germany. Therefore, they will benefit from a relative’s rights on tax and income. Moreover, recognising same-sex marriage brings the right to inherit from one another and receive the same inheritance rights as opposite-sex couples. For example, the German Civil Code states about the equalisation of accrued gains in the case of death:
“If the property regime is ended by the death of a spouse, the equalisation of the accrued gains is effected by the share of the inheritance on intestacy of the surviving spouse being increased by one quarter of the inheritance; it is irrelevant here whether the spouses in the individual case have made accrued gains” (Section 137(1) of the German Civil Code).
Without legal recognition, same-sex couples cannot enjoy these rights. Furthermore, accepting same-sex marriage is also meaningful in protecting the parties’ liability by law when they enter into a marriage. The German Civil Code lists many effects of marriage, such as duty of care, family maintenance, transactions to provide the necessities of life or a conjugal community where the spouses have a mutual duty to the conjugal community, and they are responsible for each other (Section 1353 to 1362 of the German Civil Code). Therefore, the obligations in a marital relationship exist to ensure that both partners are responsible and committed to each other.
Where Same-Sex Marriage is not Protected by Law
Besides those mentioned above, many countries do not legalise same-sex marriage. These countries can be split into two groups: (1) they will criminalise same-sex marriage; or (2) they do not attempt to put in place any protections for same-sex married couples. So how can such same-sex couples in these countries be protected from a legal perspective?
Based on the Statista Research Department, as of 2022, there are 68 countries which criminalise homosexuality. Most of them are located in the Middle East, Africa, and Asia. In 11 countries, the death penalty is imposed or there is at least an allowance for private and consensual same-sex sexual activity. These countries are Iran, Northern Nigeria, Saudi Arabia, Somalia, Yemen, Afghanistan, Brunei, Mauritania, Pakistan, Qatar and the United Arab Emirates (Statista Research Department). Nigeria continues to criminalise same-sex conduct between two consenting adults through laws. According to the Same-Sex Marriage Prohibition Act 2014, there have already been laws in the country criminalising sexual relations between persons of the same sex. Any person or group of persons who administer or witness the solemnisation of same-sex marriage is liable on conviction to a term of 10 years imprisonment (Section 5(3) of the Same-Sex Marriage Prohibition Act 2014, Nigeria). Therefore, in this jurisdiction, same-sex relations are not protected and can be considered as a crime (Arimoro, A. E. 2018).
Unlike the countries that criminalise same-sex marriage above, there are a number of other countries that neither protect nor prohibit this marriage. Take Vietnam as an example of this group of countries. The current Marriage and Family Law of Vietnam states that the government does not recognise marriage between people of the same sex (Article 8 of the Marriage and Family Law of Vietnam, 2015). Compared to the past, these regulations have seen some changes. Based on Article 10(5) of the Marriage and Family Law of Vietnam in 2000, marriage between people of the same sex is prohibited, but this law expired on 1st May 2015. Therefore, it can be said that same-sex marriage today is not protected by Vietnamese law, but neither is it prohibited outright.
Accordingly in Vietnam, same-sex couples can hold a wedding ceremony and live together in the same house. However, they cannot request the People’s Committee to issue a marriage registration certificate and are not entitled to request the Court to settle the divorce or division of joint property of husband and wife during the marriage period under the Marriage and Family Law of Vietnam. Nevertheless, from a more open perspective, the property division, when there is a dispute, can still be resolved based on civil law on the ground of co-owned property (Article 219, the Vietnamese Civil Code).
The most significant disadvantage of not being recognised by law is the issue of shared children. Whether a dispute involves a biological or adopted child, the first condition is to consider the legal parents’ rights. This is the right to initiate a lawsuit as provided for in Article 186 of the Vietnamese Civil Procedure Code, so they must prove that they are the legal parents of that child. While same-sex relationships are not protected by law, the role of the father or mother in this relationship is not fully defined. Therefore, even though the current law of Vietnam does not protect same-sex marriage, there is no specific law banning such a marriage.
Same-sex marriage, either as a civil union or a ceremony is proven to be a controversial issue, with many different countries and cultures expressing varying attitudes towards it. As of the end of 2022, 32 counties have legalised same-sex marriage, granting legal rights and recognition to same-sex couples. In these jurisdictions, same-sex marriage is protected as opposite-sex marriage under the law and rulings. By contrast, many countries do not protect same-sex marriage or still criminalise same-sex marriage.
Arimoro, A. E. (2018). When Love is a Crime: Is the Criminalisation of Same Sex Relations in Nigeria a Protection of Nigerian Culture? Liverpool Law Review, 39(3), 221–238. https://doi.org/10.1007/s10991-018-9217-y
Dutch Civil Code Book 1 family law. (n.d.). http://www.dutchcivillaw.com/legislation/dcctitle055.htm
Hull, K. E. (n.d.). Same-sex Marriage, the Cultural Politics of Law and Law. https://books.google.de/?hl=en
Jones, T. (2017, June 30). Germany approves same-sex marriage. dw.com. https://www.dw.com/en/germanys-bundestag-passes-bill-on-same-sex-marriage/a-39483785
Same-Sex Marriage Legalization by Country. (n.d.). U.S.News. https://www.usnews.com/news/best-countries/articles/countries-where-same-sex-marriage-is-legal
Statista. (2022, December 12). Number of countries that criminalize homosexuality 2022. https://www.statista.com/statistics/1227390/number-of-countries-that-criminalize-homosexuality/
The Fiscal Code of Germany. (n.d.). https://www.gesetze-im-internet.de/englisch_ao/index.html
The Marriage and Family Law, Vietnam, 2000.
The Marriage and Family Law, Vietnam, 2014.
The Same-Sex Marriage Prohibition Act, Nigeria, 2014.
Cover image: Comunidad De Madrid. (2019, February 5). Until October, the Madrid LGTBI Information and Attention Program of the Community of Madrid has assisted a total of 18.464 lesbian, gay, transsexual, bisexual and intersex people, a figure that represents an increase of 6,5% compared to the same period in 2017 [Photograph]. Retrieved from https://www.comunidad.madrid/en/noticias/2018/11/24/programa-informacion-atencion-personas-lgtbi-ha-realizado-18464-intervenciones-2018
Figure 1: Masci, D., & DeSilver, D. (2020, May 30). A global snapshot of same-sex marriage. Pew Research Center [Illustration]. Retrieved from https://www.pewresearch.org/fact-tank/2019/10/29/global-snapshot-same-sex-marriage/
Figure 2: Smith, R. K. (2016, December 6). Major civil liberties victories in Supreme Court. Civil Liberties Defense Center [Photograph]. Retrieved from https://cldc.org/major-civil-liberties-victories-in-supreme-court/
Figure 3: Sanchez, R. (2022, July 20). The House Votes to Pass a Bill to Protect Same-Sex Marriage After the Roe v. Wade Decision. Harper’s BAZAAR [Photograph]. Retrieved from https://www.harpersbazaar.com/culture/politics/a40664791/house-representatives-votes-bill-protect-same-sex-gay-marriage/
Figure 4: (2017, March 24). Thư tình ngọt ngào của Adrian Anh Tuấn và Sơn Đoàn. Tạp Chí Đẹp [Photograph]. Retrieved from https://dep.com.vn/thu-tinh-ngot-ngao-cua-adrian-anh-tuan-va-son-doan/