Going Dutch? A Comparative Analysis and Assessment of the Gradual Recognition of Homosexuality with Respect to the Netherlands and England

AuthorIan Sumner
Date01 March 2002
DOI10.1177/1023263X0200900103
Published date01 March 2002
Subject MatterArticle
Ian Sumner
9 MJ 1 (2002) 29
Going Dutch? A Comparative Analysis and Assessment of the
Gradual Recognition of Homosexuality with respect to the
Netherlands and England
§ 1. Introduction
With the ever-increasing reduction of discrimination based on race, sex and nationality
throughout most of the Western world, 2001 has seen the enactment of legislation in the
Netherlands that finally ensures non-discrimination of homosexuals in all areas of life. Now,
for the first time, two people of the same sex will be able to consecrate their relationship in
exactly the same way as two people of the opposite sex – in matrimony. Yet it is hardly
surprising that these changes have been met with scepticism since marriage is regarded as
the cement of society;1 an ‘emblem of continuity and reproduction of the race’;2 ‘as a gift of
God in creation … in which man and woman become one flesh’.3
This article will trace the emergence of same-sex marriage legislation in the Netherlands and
summarize the legal situation with respect to homosexuals in England.4 Upon analysis of the
possible English and European reforms in this field, it will be argued that the ‘small change’
theory proposed by Waaldijk5 in relation to legislation concerning homosexuals, although
conceptually feasible in the Netherlands, will be subject to adaptation when applied to
England. This article will not reflect upon legal changes outside of the EU and will also not
address the private international law aspects of these legislative changes.
* The author is a Ph.D researcher at the Molengraaf f Institute for Private Law in Utrecht, The Neth erlands.
Many thanks to Dr Mika Oldham, Jesus College, Cambridge for her generous assistance in the preparation of
this article and also the journal’s referees for their thoughtful comments on the initial draft. Any remaining
errors, mistakes or oversights, factual or otherwise, of course rest with the author.
1. N. Bamforth, Sexuality, Morals and Justice, (Caswell, 1997), 148.
2. K. O’Donovan, Family Law Matters, (Pluto Press, 1993), 47.
3. Marriage Service, Recital 6, Alternative Service Book 1980.
4. It must be noted that in most cases the legal instruments affecting English law also apply to Wales.
5. K. Waaldijk, ‘Small Change: How the Road to Same Sex Marriage Got Paved in The Netherlands’, in R.
Wintemute (ed.), Legal Recognition of Same Sex Partnerships, (Hart, 2001), 440.
Going Dutch?
30 9 MJ 1 (2002)
§ 2. Definition and Incidents of Marriage
The notion of marriage varies greatly around the world, with forms of polygamy and
polyandry accepted in many nations. In a sample of 850 world societies, less than twenty
percent preferred monogamy as the exemplary ideal.6 However, throughout this article,
reference to marriage will be to a monogamous relationship.
The English legal concept of marriage can be clearly identified in the case of Hyde v Hyde,7
where Lord Penzance defined marriage as ‘the voluntary union for life of one man and one
woman to the exclusion of all others’.8 Even today the courts still draw on this definition.
Yet little legal knowledge is required to understand that this definition is, at the very least, a
legal fiction. The recent meteoric rise of divorce has prevented marriage from retaining its
status as a ‘lifelong union’. Figures indicate a steady increase in the divorce rate in England
since the turn of the last century, with a peak of thirteen divorces per 1,000 married people in
1999.9
Yet, marriage prevails as a powerful legal and social concept that protects and supports
intimate family relationships through the provision of a unique set of rights, privileges and
benefits. It is these benefits that must be examined before one can fully appreciate the legal
significance that the denial of marital status imposes upon homosexuals.
One of the most significant effects of marriage in English law was that it fused the legal
personalities of husband and wife. Yet the fact that the doctrine ever existed was vehemently
criticized, especially by Lord Denning who asserted that ‘nowadays, both in law and fact, the
husband and wife are two persons, not one’.10 Nevertheless, there is still evidence of
affiliation between marital status on the one hand and special benefits on the other. Even
though many of these benefits have also been extended to non-marital relationships, the
emphasis placed on marriage remains.
The relationship of husband and wife has been held to satisfy the requirement of an
obligation of confidence necessary to initiate a claim for breach of confidence.11 A
homosexual couple in Stephen v Avery12 has now been held to satisfy this requirement,
where Lord Browne-Wilkinson held that an injunction could be granted to prevent disclosure
of information recounted during a lesbian relationship. Spousal privilege in criminal trials
has lessened with the enactment of section 80 of the Police and Criminal Evidence Act 1984,
6. D. O’Neil, ‘Marriage Rules and Homosexuality’, (2000, omar.edu/marriage>), 3.
8. Ibid., 133.
9. HMSO, ‘National Statistics on Marriage and Divorce’, (2001, http://www.statistics.gov.uk). In 2000, the
divorce rate decreased for the first time to 12.7 divorcing people per 1,000 married couples (BBC News,
21.08.2001).
10. Midland Bank Co. Ltd v Green (No 3) [1982] Ch 529, 538-9.
11. Argyll v Argyll [1967] Ch 302, 322.
12. Stephen v Avery [1988] Ch 449.

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