Recognition of same-sex unions in Venezuela

Venezuela does not recognize same-sex unions.^[1][2][3] In April 2016, the Supreme Court announced it would hear a lawsuit which seeks to declare Article 44 of the Civil Code unconstitutional for outlawing same-sex marriage. Proposals allowing for either civil unions or marriage for same-sex couples are currently being debated in Parliament. Additionally, in 2008, the Supreme Court ruled that the Venezuelan Constitution does not prohibit same-sex marriage.

Constitution

The Constitution of Venezuela enacted in 1999 defined marriage as a union between a man and a woman, thus constitutionally banning same-sex marriage.^[4] However in February 2008, the Supreme Tribunal of Justice ruled in favor of Unión Afirmativa (Affirmative Union), a group advocating for same-sex marriage, who had asked for clarity on Article 21 (the article about equality before the law) and 77 (the article about marriage).^[5] They argued that the sentence is unclear and does not determine the possibility of recognition of economic and social rights for same-sex couples. Furthermore they asked whether same-sex couples have the rights mentioned above and what is the scope of these rights: property in case of a dissolution of the couple by separation or death, the legal obligations of mutual assistance, the right to adoption, the benefits of social security as a couple, protection against domestic violence, the possibility of acquiring the nationality of the partner, among others. The ruling indicated that the National Assembly "could" (but was not bound to) legislate in order to protect such rights for same-sex partners.^[6] Subsequently Article 77 was amended and marriage defined as the following:^[7]

Marriage, which is based on free consent and absolute equality of rights and obligations of the spouses, is protected.

A stable de facto union that has all the rights of marriage is however only available to a man and a woman as currently defined in Venezuela's Constitution:^[7]

A stable de facto union between a man and a woman which meets the requirements established by law shall have the same effects as marriage.

Recognition of same-sex unions in South America

  Marriage

  Other type of partnership

  Unrecognized

  Same-sex marriage banned

  Same-sex sexual activity illegal

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Legal challenges

In January 2015, a lawsuit for the right to marry was filed before the country's Supreme Court.^[8][9] On 28 April 2016, the Supreme Court announced it would hear the case. The lawsuit seeks to declare Article 44 of the Civil Code unconstitutional because it states that marriage is only legally valid between a man and a woman in Venezuela.^{[9][10][11][12]}

On August 15, 2016, A Venezuelan citizen, Carlos J. Holder Wendell and his US citizen husband, Patrick A. Holder Wendell filed a lawsuit in the US District Court of Massachusetts against the Venezuelan Government for their failure to register and recognize their legal marriage after multiple requests and petitions to the Venezuelan Consulate in Boston and Consul General Rosalba Gil. Their lawsuit alleges the Venezuelan Government's refusal to register and recognize the marriage violates the Venezuelan constitution and is in violation the Venezuelan Civil Code. It also all alleges that the actions of the Government are in violation of the Hague Convention on Consular Relations, a treaty to which both the US and Venezuela are a party to.^[13][14]

Legislative action

Civil unions

On March 20, 2009, National Assembly member Romelia Matute announced that the Assembly would legalize same-sex unions and recognize them as asociaciones de convivencia (association by cohabitation).^[15] However, later in the same month, Marelys Pérez—chairperson of the Family, Women and Youth Commission—announced that no such action would be taking place; adding that although the Commission would debate the same-sex partnership initiative, it would be excluded from the current bill and likely wait for its inclusion into a future Civil Code reform or a future updated anti-discrimination measure.^[16] The changes to the law were postponed multiple times.^[17]

In June 2016, Venezuela's opposition announced that it will work on a civil union bill. A prominent committee member said that the new Registry Law will allow couples to seek some benefits.^[18]

It has been widely reported that civil unions of same-sex couples are recognized in Mérida State. These reports do not cite any statutory or decisional law to support such recognition.^[19]

Marriage

On 31 January 2014, during a debate on a Civil Code reform bill, LGBT activists submitted a proposal seeking to legalize same-sex marriage. The proposal was accompanied with 21'000 signatures as well as support from the governments of the states of Barinas, Falcón, Mérida, Monagas, Táchira, Yaracuy and Zulia.^[20] The proposal seeks to alter Article 44 of the Civil Code to allow for same-sex marriages in Venezuela.

Public opinion

According to Pew Research Center survey, conducted between November 8, 2013 and February 12, 2014, 28% of Venezuelans supported same-sex marriage, 61% were opposed.^[21][22]

See also

• LGBT rights in Venezuela
• Recognition of same-sex unions in South America

References

1. Venezuela: Situation and treatment of homosexuals; recourse available to those who have been harassed based on their sexual orientation (2004 - February 2006)
2. Venezuela's sexual revolution
3. Venezuela’s Sexual Revolution Within the Revolution
4. "Constitución de la República Bolivariana de Venezuela" (PDF) (in Spanish). Retrieved 14 April 2016.
5. Gay Politics in Venezuela
6. "SALA CONSTITUCIONAL Magistrado Ponente: PEDRO RAFAEL RONDÓN HAAZ". EL TRIBUNAL SUPREMO DE JUSTICA. February 28, 2015.
7. "Constitution - Title III: Duties, human rights, and guarantees (Art. 19-135)". Venezuelanalysis.com. Retrieved 14 April 2016.
8. Piden al TSJ modificar el Código Civil para permitir matrimonio igualitario
9. "Más de 12 mil parejas homosexuales venezolanas se beneficiarían con matrimonio igualitario". Alba TV. 5 May 2016.
10. "The Struggle isn't Over": Venezuela Moves Towards Marriage Equality". Venezuelanalysis.com. 5 May 2016.
11. (Spanish) TSJ admite demanda para anular artículo del Código Civil que impide matrimonio homosexual
12. (Spanish) Día Mundial contra la Homofobia y la Transfobia en Venezuela aún hay materias pendientes
13. "Holder Wendell v. The Bolivarian Republic of Venezuela (1:16-cv-11649), Massachusetts District Court". www.pacermonitor.com. Retrieved 2016-09-28.
14. Orecchio-Egresitz, Haven. "Gay Yarmouth Port couple sue to have marriage recognized". Retrieved 2016-09-28.
15. Venezuela: Same-sex partnerships on fast track to being legally recognized, says legislator
16. Same-Sex Unions Not On the Table After All?
17. (Spanish) El Tiempo. En busca del matrimonio gay en Venezuela. Retrieved 13 January 2014.
18. (Spanish) AN promoverá leyes para reconocer unión de personas del mismo sexo
19. (Spanish)
20. Becker, Sabina (29 January 2014). "Equal marriage: coming soon to Venezuela?". News of the Restless.
21. Religion in Latin America Chapter 5: Social Attitudes
22. Religion in Latin America Appendix A: Methodology