London, 25 April 2013
Three states have recently joined the progressive trend towards recognising in law the equal right to marry regardless of sexual orientation. On 10 April 2013, Uruguay became the second country in South America to legalise same-sex marriage, after Argentina. On 18 April 2013 New Zealand became the first country in the Asia-Pacific region to do so. And on 23 April 2013, France became the 14th country to legalise same-sex marriage. In Uruguay and New Zealand new legislation permitting same-sex marriage was passed by an overwhelming majority of parliamentary votes whilst in France the legislation proved extremely divisive, with numerous protests and a closer vote of 331-225. The Uruguayan Equal Marriage Act changes some of the provisions of the Uruguayan Civil Code and of the Uruguayan Code of Children and Adolescents. The Act will come into effect 90 days after it is signed into law by President José Mujica and not only promotes equality for LGBTI people in South America, but also makes provisions to promote equality in some other aspects of Uruguayan family life. Specifically:
• Article 83 of the Civil Code now recognises that civil marriage is the “permanent union of two persons of different or same sex”;
• Article 183 of the Civil Code now places an obligation on both spouses to provide financial support to the other in the event of their legal separation before a Court - before their actual divorce is declared - provided that some requirements are met, replacing the previous disposition that only husbands were obligated to financially support their wives in case of such a separation;
• Article 187(3) of the Civil Code now recognises that either spouse can initiate divorce proceedings before the Court, replacing the previous rule that only the wife could do so;
• Article 27 of the Code of Children and Adolescents now provides that parents may choose and agree upon the order of surnames they wish to give to their offspring, which is extended to same-sex couples, replacing the former rule that provided for a fixed order where the first surname would be the one from the father, and the second surname would be the one from the mother;
• Article 91(1) of the Civil Code now equalises the marital age to 16 years for both men and women, changing the previous rule according to which the marital age was 14 for men and 12 for women.
The New Zealand Marriage (Definition of Marriage) Amendment Act was passed on 17 April 2013 and will come into force by 19 August 2013. The key purpose of the Act is “to clarify that a marriage is between two people regardless of their sexual orientation or gender identity”. It provides a comprehensive overhaul of previous marriage legislation in New Zealand, amending the Marriage Act 1955 together with a number of other Acts which regulate aspects of married and family life. In particular:
• Section 2(1) of the Marriage Act 1955 will now read that “marriage means the union of 2 people, regardless of their sex, sexual orientation, or gender identity”;
• However, Section 29(2) recognises religious opposition by stating that “no celebrant who is a minister of religion recognised by a religious body (...) and no celebrant (...) nominated to solemnize marriages (...) is obliged to solemnize a marriage if solemnizing that marriage would contravene the religious beliefs of the religious body or the religious beliefs or philosophical or humanitarian convictions of the approved organisation”;
• The Act also amends numerous other pieces of legislation to make the effects of certain family laws gender neutral. The definitions of “husband and wife” throughout legislation are replaced with, “a married couple”, and references to “husband” or “wife” individually are replaced with “spouse”. This gender-neutral protection henceforth applies throughout Acts concerning child security, adoption, family proceedings and matters of property, land and social security.
On 23 April 2013, the French Parliament, by a 321-225 majority adopted Law 344 amending the Civil Code to legalise same-sex marriage. Opponents of the law intend to challenge its constitutionality before the Constitutional Court after which, if the challenge is unsuccessful, the law will be signed by President Francois Hollande. Once the Law is signed:
• A new Article 143 will be inserted into Book 1, Title 5 of the Civil Code and will state that “marriage may be contracted by two persons of different sex or the same sex”;
• References to “husband and wife” will be replaced with references to “spouses” and references to “father and mother” will be replaced with “parents” throughout the family law provisions relating to marriage and children.
ERT welcomes these important developments both towards equal rights to marry and towards equality of partners within relationships regardless of their gender. It continues to watch the situation in France and elsewhere and to urge states which have not yet legislated for same-sex marriage to do so.
To read the Uruguayan Equal Marriage Act in Spanish, click here
To read the Uruguayan Civil Code, click here
To read the Uruguayan Code of Children and Adolescents, click here
To read the New Zealand Marriage Amendment Bill, click here
To read the French Amendment Bill in French, click here
To read the latest volume of the Equal Rights Review with a special focus on equality in family life, click here