Onder 2.20 Gemeenschappelijk Hof van Justitie van Aruba, Curaçao, Sint Maarten en van Bonaire, Sint Eustatius en Saba 6 december 2022

145. As to Article 12, the Court notes that in Schalk and Kopf it found that it would no longer consider that the right to marry must in all circumstances be limited to marriage between two persons of the opposite sex, and therefore that Article 12 was applicable to the applicants, a same‑sex couple seeking to marry, but that Article 12 of the Convention did not impose an obligation on the respondent Government to grant a same-sex couple like the applicants access to marriage (§§ 61-63). The same was reiterated in Hämäläinen v. Finland [GC], (no. 37359/09, § 96, ECHR 2014), and in Oliari and Others v. Italy (nos. 18766/11 and 36030/11, §§ 191-192, 21 July 2015), where the Court held that while it is true that some Contracting States have extended marriage to same-sex partners, Article 12 cannot be construed as imposing an obligation on the Contracting States to grant access to marriage to same-sex couples. More recently, the Court, in Chapin and Charpentier v. France, (no. 40183/07, 9 June 2016) also considered that Article 12 applied to the applicants, a same-sex couple seeking to marry (§ 31). Since the Court has already held Article 12 to be applicable to a same sex-couple wishing to marry, the provision must also be applicable to same-sex couples who are already married under the domestic system of another State.

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