Jun 17, 2021

President Sebastián Piñera stated in his State of the Nation Address that he would fast-track the processing of the "Marriage Equality Bill". This bill was published in bulletin No.11.422-07 and aims to "amend various legal texts to regulate the marriage of same-sex couples under equal conditions".

This Bill has been in Congress for several years, since it was introduced on 5 September 2017, through a Message from the then President Michelle Bachelet. The plan to legislate the Bill was only approved on 15 January of last year by the Senate Chamber.

What does making this Bill urgent mean?

It means that no more than 15 days after 5 June, (i) the Senate Constitution Committee will have to finish discussing and voting on some 60 amendments to various Civil Code rules and 8 other laws that make up the Bill. Then, within the same period, (ii) the Committee must submit its report and the Senate Chamber must discuss and vote on the Bill, and if approved (iii) then the Chamber must send the approved Bill to the Chamber of Deputies for its second constitutional proceeding.

However, these steps may not necessarily be completed because, although the Executive Branch giving urgency to a matter does influence the schedules for the Congressional chambers and committees, it does not constitute an obligation to approve a Bill within the respective period. The Committee has resumed the debate this week, by discussing this Bill and voting on its contents. It has not yet concluded its debate, which is expected to take place next week.

Given this is an urgent Bill, which has aroused considerable interest in the community, it is worth asking what exactly does the Bill seek to achieve?

Firstly, its main thrust is to allow everyone equal access to the institution of marriage, without discrimination on the grounds of sexual orientation.

The Bill aims to achieve this by changing the concept of marriage as defined in Article 102 of the Civil Code and changing the wording that describes who has access to this institution. So, the expression "a man and a woman" is changed to "two people":

"Marriage is a solemn contract by which two people are actually and irrevocably united for life, for the purpose of living together, procreating and helping each other."

Secondly, the Bill aims to establish equal marriage by amending other laws, including (i) the Civil Marriage Law; (ii) the Law that creates the Civil Union Agreement (Acuerdo de Unión Civil, AUC); (iii) the Civil Registry Law; (iv) the Adoption Law; and (v) the Employment Code.

Clearly this is a subject that generates diverse opinions and can be approached from different disciplines, so the following contributions to this discussion are from a legal perspective and provide an explanation of the main legal amendments proposed by the Bill.

  • The regulations governing who must provide for the needs of the shared family are to be amended. Instead of "the husband and wife", the Bill states that "both spouses” "must provide for the needs of the shared family, in accordance with their economic means and their property regime" (Civil Code, Article 134, first paragraph).
  • It aims to amend articles within the laws that have already been mentioned, in order to adapt their language to become more inclusive and universal. Instead of "the husband and wife" it refers to "the spouses" and the concept "the parent" replaces the expressions "the father" and "the mother". These conceptual amendments are also reflected in Civil Code rules relating to kinship relationships. 
  • It proposes changes regarding filiation issues, particularly to Articles 180 and following the Civil Code, recognizing that a son or daughter can have two mothers or two fathers. The Bill proposes to add Article 30 bis to the Civil Registry Law, referring to the order of the surnames for "all common children of same-sex parents". It generally establishes that a same-sex couple may choose the order of their children’s surnames by mutual agreement when registering their first common child. Subsequent common sons or daughters of that couple must have the same surname order as the first.
  • These conceptual amendments have triggered changes in the area of adoption. Adoption Law currently prefers spouses over single, divorced or widowed people. Given that the Bill grants same-sex couples access to marriage, they may also choose to adopt, as they are spouses, without any additional amendments to the Adoption Law being necessary. There is another Bill called the "Comprehensive Reform to the Adoption System in Chile" [Bill bulletin 9119-18], which has currently reached its second constitutional proceeding in the Senate Constitution Committee, after having been approved by the Chamber of Deputies in May 2019. This Bill offers civil cohabitants the opportunity to adopt on equal terms with married couples.
  • The Bill addresses conceiving children using assisted human reproduction techniques through an amendment to Article 182 of the Civil Code. The rules that regulate it currently apply to different sex couples, and the Bill will extend this to female couples. Male couples are not included in this Bill because the technical complexity involved requires a special and exhaustive regulation. Therefore, the filiation of a child conceived by a female couple using assisted human reproduction techniques will be determined by the general filiation rules in the Civil Code. These are "maternity is determined by childbirth" (Article 183), " a child will be recognized in a declaration for that specific purpose by [either or both of the parents]" (Article 187) and "assigning a name [by either parent] when registering the birth at the request of either of them, will be sufficient recognition of filiation".
  • The Bill amends the marital property regimes in Article 135 of the Civil Code, by establishing that the shared ownership regime will not apply to same-sex couples, and they may choose either the total separation of property regime or participation in marital profits regime. This is the first step by the legislator towards terminating the shared ownership regime, which had already been expressed in the Bill that "amends the Civil Code and complementary laws regarding the shared ownership regime or shared profits, which grant the husband-and-wife equal rights and obligations" (bulletin No.1707-18). This Bill was approved by the Chamber of Deputies in October 2005, and it has now reached its second constitutional proceeding in the Senate, where it has been at the Women's Committee since October 2018. 
  • The Bill states that same-sex marriages celebrated abroad will be recognized in Chile, without distinction. Currently a foreign same-sex marriage can only be recognized in Chile as a Civil Union Agreement.

If the urgency applied to this Bill is successful, it will be processed more quickly in the Senate, so if it is processed at greater speed at each of the remaining stages within Congress and finally enacted, then Chile may have equal marriage within the short- to medium-term, thereby joining a growing group of countries* that already have similar institutions.

* Countries with equal marriage: Argentina, Australia, Austria, Belgium, Brazil, Canada, Colombia, Costa Rica, Denmark, Ecuador, Finland, France, Germany, Iceland, Ireland, Luxembourg, Malta, Mexico, Netherlands, New Zealand, Norway, Portugal, South Africa, Spain, Sweden, Switzerland, Taiwan, United Kingdom, United States of America, and Uruguay.

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