28 September 2017

Is a church a legal person? In the Netherlands this is a question about which many books have been written. The answer to this question has to do with practicing freedom of religion. This has been, and still is, the cause of many wars. The separation of church and state is still a sensitive topic in the Netherlands. The Dutch Civil Code stipulates that churches and other religious communities are indeed legal persons. The same stipulation has not been included in our Curaçao Civil Code. In Curaçao, the court will determine where applicable if and in what respects a certain church can be considered a legal person.

What does it actually mean when a church is a legal person? A legal person is an independent holder of legal rights and obligations. Therefore, a church can own buildings, purchase an organ and employ people. In the latter case, there is an employment agreement with the church and not with the pastor, the minister, the imam or the rabbi. Normally this can only be arranged by going to a notary and setting up one of the legal persons mentioned in the Civil Code, such as an association or a foundation. So, for a church in Curaçao this is strictly speaking not necessary. The internal relationships are governed by its own articles and not by the law that normally applies to legal persons.

“A church that trusts that its own governance is good enough to overcome the many pitfalls and roadblocks that it can encounter on the legal pathway does not have much of a sense of risk management.”

Nevertheless, most churches are organized as an association or a foundation. From a legal perspective, that is a safer option. A church that trusts that its own governance is good enough to overcome the many pitfalls and roadblocks that it can encounter on the legal pathway does not have much of a sense of risk management. After all, in cases of uncertainty or conflicts the court will revert to the rules that are laid down in the law for legal persons in order to find a right and fair solution. Which of these rules it will be, will only become clear to you once the court has made its decision. For example, the civil law rules for internal directors’ liability claims do not necessarily apply to a church. Liability is then arranged on the basis of the (internal) articles. That can turn out good as well as bad. In Curaçao, the court can even decide that the church in question has no legal personality at all. In that case, all legal acts performed on behalf of that church are for the account and responsibility of the natural person who has actually put down his or her signature. He or she is then personally responsible and liable for it. Therefore it is safer to choose an existing legal structure.

It is clear that by recognizing churches as legal persons, the Dutch legislature was mainly focused on Christian and Jewish religious communities. What if you would found your own church with a number of other “believers”? Does that also make you a legal person under the law? No, at least not without question. A famous ruling from 1986 concerned “The Sisters of Walburga”. These “sisters” worked at the “Church of Satan”, a sex club located in the red-light district De Wallen in Amsterdam. The Supreme Court showed no leniency. The “Church of Satan” is not a church in the sense of the Dutch law. Churches should concern a certain religion and have a well-structured organization. The Church of Satan did not meet this criterion and therefore simply had to put up with the regular police checks. And with paying taxes too, of course. 

This blogpost is also available in Papiamentu. Click here to download a pdf version.

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