Domestic Partnership

In the 1990s, THE DEFINITION of parenthood expanded rapidly to embrace babies born as the result of in vitro fertilization, artificial insemination and surrogacy. Now the first decade of this century and millennium promises to change the legal concept of marriage and its termination.

Recent events which are shaking the very foundation of "traditional marriage" include the institution of the California Domestic Partners legislation, Family Code §297 et seq.; the recent ruling by the Vermont Supreme Court in Baker v. Vermont, which mandates that same sex couples receive identical benefits as married couples; and a California initiative on the March ballot, which seeks to prohibit recognition in California of same sex marriages from other states.

The Rights of Domestic Partners in California

Beginning this year, Family Code §297 breaks new ground in defining "domestic partnerships," and the rights of "domestic partners." According to the new legislation, "domestic partners" must meet the following criteria:

1. Have a common residence;
2. Agree to be jointly responsible for each other's "basic living expenses" incurred during the partnership;
3. Be unmarried and not a member of another domestic partnership;
4. Be unrelated by blood in a manner that would prevent them from marrying in California;
5. Be at least 18, and capable of consenting to the partnership;
6. Not previously have filed a domestic partnership declaration with the Secretary of State without having the previous partnership terminated;
7. Have filed a declaration of domestic partnership with the Secretary of State;
8. Are members of the same sex;
9. Or, are members of the opposite sex, over the age of 62 and qualify for old-age Social Security benefits.

Thus, the California domestic partners legislation is applicable to same-sex couples who do not have the right to legally marry, and seniors of the opposite sex, over age 62, who for financial reasons do not often wish to marry.

The new legislation requires that domestic partners register their relationship through a Declaration of Domestic Partnership with the Secretary of State. Once the registration is complete, each party has the right to receive help with "basic living expense" (food, shelter, transportation, medical care, etc.) from the other partner. The domestic partnership declaration even may be used to request service providers to extend credit to a partner based on the promise of the other partner. If the partnership terminates, the obligor partner will be liable to the service provider for living expenses incurred by the supported partner.

Additionally, domestic partners are ensured the right to visit one another at a medical facility or hospital unless visitors are not allowed or would endanger the hospitalized partner. Both partners will also benefit from state and local employers being required to offer health care coverage and related benefits to the domestic partners of employees who have submitted their declaration of the domestic partnership to their employer.

Under Family Code §299.6, any local ordinance or law which was in existence prior to July 1, 2000 will not be preempted. If the city in which the partners reside offers protections which are greater than those provided by the statewide legislation, the additional rights of the local legislation will supersede those of the state. Such cities as San Francisco, which pioneered a domestic partners§ ordinance in June, 1997, require that employers who have contracts with the city furnish the same benefits to unmarried partners as they do to married employees. Recently, the San Francisco ordinance was upheld in S.D. Myers Inc. v City and County of San Franciso, C97-4463CW (1999), requiring the estimated 2,300 companies that have contracts with the city to extend such additional benefits as bereavement leave, unpaid medical leave and other employment discounts to the domestic partners of the employees who perform work on city contracts. However, the issue of extending health and retirement benefits under federal legislation, (The Employment Retirement Income Security Act "ERISA") was not reached in the Myers decision, and had been barred earlier in 1999 by Transport Association of America v. City and County of San Francisco, C97-1763CW.

Rights Upon Termination of Domestic Partnership

Upon the dissolution of the domestic partnership, the partners, under Family Code §299), are required to file notice with the Secretary of State to avoid future liability, and to permit the partners to enter into a new partnership. It is inherent that notification of the termination be sent to the third parties within sixty days of the dissolution to avoid future liability of one partner for the other. Domestic partners may not enter into a new partnership for six months after terminating their relationship.

There are no rights to any property created by the partnership or its dissolution, as the registration does not change the character of property owned by either party or both parties during the term of their domestic partnership. Any property acquired during the partnership will be held in the "proportion of interest assigned to each partner at the time the property or interest was acquired unless expressly agreed in writing by both parties." Family Code §299.5.

The National Trend

On December 20, 1999, the first high court in the country, the Vermont Supreme Court, ruled in Baker v. Vermont, No. 98-032, that same sex couples must receive the same benefits and protections given to married couples. The question of whether or not marriage licenses must be issued to same sex couples was not reached, but left as an open question for the legislature to decide. Vermont Chief Justice, Jeffrey Amestoy, wrote the following in support of the ruling that there was no reasonable basis to exclude homosexual couples from the same benefits afforded heterosexual couples:

"The issue before the Court, moreover does not turn on the religious or moral debate over intimate same-sex relationships, but rather on the statutory and constitutional basis for the exclusion of same-sex couples from the secular benefits and protections offered married couples.

The legal benefits and protections flowing from a marriage license are of such significance that any statutory exclusion must necessarily be grounded on public concerns of sufficient weight, cogency and authority that the justice of the deprivation cannot seriously be questioned.

If Vermont decides to institute domestic partnership legislation, rather than marriages to same sex couples, it remains to be seen whether it will provide greater benefits than the California legislation. Will Vermont extend the rights normally associated with traditional matrimony--property acquisition, division and alimony--to same sex marriages?"

The "Defense of Marriage" Initiative

On the ballot in March, 2000 is the "Defense of Marriage Act" initiative which if passed will outlaw same sex marriages in California. This legistration, if enacted, will prevent California from recognizing same sex marriages that may be performed in other states, such as Vermont, if marriage licenses for same sex couples are issued. If passed, California will join thirty other states which have already adopted similar legislation.

Presently, Family Code §308 permits the recognition of marriage contracted outside California if the marriage was legally obtained in another jurisdiction. This statute historically has been broadly enforced by California courts--which permitted recognition of interracial and teenage marriages contracted in other states, even before these marriages were legalized in California.

Even if legislated, however, the Defense of Marriage Act will not abridge the new domestic partnership law, just added to the Family Code. This initiative will limit the rights of domestic partners in comparison with heterosexual married spouses.

New Implications for Family Law Attorneys

As rights protecting domestic partners were established at least twenty-five years ago in Marvin v. Marvin, 18 Cal.3d660 (1974), family law attorneys are accustomed to advising cohabitants of their rights, as well as spouses who lived together prior to marriage. However, the new domestic partnership law attorneys who should familiarize themselves with Family Code §297 through 299.6.

Family law attorneys might wish to learn the procedures for assisting couples to file the forms necessary to register partnerships, terminate parterships and be able to advise partners as to their rights to basic living expenses, liability to service providers and to partner benefits such as medical and dental insurance coverage.

Although the new Family Code statutes may not yet appear to provide much protection to domestic partners, one can only predict that domestic partnership litigation will create and widen the rights of "nontraditional marriage" partners in the 21st century.