Formalizing Same-Sex Partnerships

October 27, 2004

When I finished law school in 1996, I could not have imagined that eight years later I would be discussing any form of government-sanctioned legal protection for same-sex couples, other than Vermont's civil union. But with the recent enactment of a domestic partnership act in the state of Maine and new victories for marriage equality in the state of Washington and the Yukon Territory, there are now eleven jurisdictions in North America that allow same-sex couples to formalize their relationship.

Six jurisdictions have extended marriage rights to same-sex couples. The Yukon joins the Canadian provinces of Ontario, Quebec, and British Columbia in granting marriage licenses to same-sex couples. Many in Canada believe the province of Nova Scotia will be next, while others await a national law that would extend marriage equality throughout Canada.

The situation in the U.S. is more fluid. In addition to Massachusetts, a Washington state court has ruled that marriage certificates must be issued to the eight same-sex couples that filed suit in that state. Undoubtedly the decision will be appealed, probably directly to the state Supreme Court, and until a final decision is reached, the state will not issue further licenses.

Marriage alternatives have popped up in other U.S. states. The State of Hawaii was first, passing its Reciprocal Beneficiaries law in 1997, followed by California passing a limited Domestic Partnership Act in 1999, and Vermont passing its Civil Union law in 2001. In 2003, California considerably strengthened its Domestic Partnership Law (it goes into effect on January 1, 2005), and in 2004 New Jersey and Maine joined the crowd with their Domestic Partnership Acts.

Finally, we should not forget the time-honored alternative of living-together. What was once our only choice has now become another alternative in the way we join our lives.

In this month's column, I will briefly discuss the rights, responsibilities, requirements and limitations found in each of these laws. Next month, I'll discuss the comparative advantages and disadvantages of the different alternatives. I'll also look at how these legal alternatives are viewed at the federal and state level in the U.S., and how they are viewed in Canada.

In discussing each of these alternatives, I'll include information about whether these legal relationships are recognized in other states or countries and, if so, where. This recognition is important because it means that if you visit or even move to another state or country, you need to know if and to what extent that jurisdiction will recognize your relationship.

Reciprocal Beneficiary

If, in 1996, you polled same-sex couples on the terms they used to refer to each other, you might hear terms such as lover, spouse, companion, partner, or even husband (wife). It is unlikely, however, that you would have heard someone refer to his or her reciprocal beneficiary.

Nevertheless, reciprocal beneficiary, as enacted in 1997 in Hawaii, has the distinction of becoming the first kind of state-sanctioned relationship available to same-sex couples in North America.

In general, it refers to a form of domestic partnership made available to two persons who are legally prohibited from marrying for one reason or another, including that they are a same-sex couple. So far, reciprocal beneficiary laws have been enacted in only two states — Hawaii and Vermont — and it is unlikely that any others will follow suit.

Currently, only the state of New Jersey recognizes reciprocal beneficiaries entered in Hawaii or Vermont, and reciprocal beneficiaries can expect to receive the full set of rights available to domestic partners in those states.

The reverse doesn't hold true, however, and a domestic partnership or civil union entered elsewhere is not recognized as a reciprocal beneficiary in Vermont or Hawaii, nor do these states recognize each other's law, despite the similarity in name and form.

Hawaiian Reciprocal Beneficiary

The Hawaiian reciprocal beneficiary law allows same-sex couples, relatives and friends to register as reciprocal beneficiaries if they are both at least 18 years of age, not legally married or part of another reciprocal beneficiary relationship, and would be legally prohibited from marrying the other person under Hawaiian law. There is no state or U.S. residency or citizenship requirement.

The reciprocal beneficiary law confers certain property rights, such as joint tenancy. Registered beneficiaries have the same inheritance rights, visitation rights, and health care proxy rights as married spouses. They are also protected under the state's domestic violence laws. State employees do not, however, receive any health benefits.

In order to register as reciprocal beneficiaries, an eligible couple files a notarized registration form with the state Department of Health and pays an $8 fee.

Hawaii's reciprocal beneficiary relationships are recognized in New Jersey. They are not explicitly recognized in Vermont. They may be recognized under the new California domestic partnership act when it goes into effect in 2005. Hawaii does not allow same-sex marriage and does not recognized same-sex marriages entered into elsewhere.

Vermont Reciprocal Beneficiary

Although overshadowed by Vermont's civil union laws, the state also has a reciprocal beneficiary law. However, its law is restricted to individuals who are related by blood or adoption. Thus it is of no interest to same-sex couples.

Civil Union

In December 2000, the Vermont Supreme Court unanimously ordered the state to provide the rights and obligations of marriage to same-sex couples. In order to comply, the Vermont Legislature passed the Civil Union Act of 2000, which was signed into law by then-Governor Dean.

The Act created a separate but equal status for same-sex couples, conferring all of the state rights and responsibilities under the marriage laws to same-sex couples who registered. Federal rights given to married couples are not available.

Same-sex couples register a civil union by obtaining a civil union license from the clerk of their town of residence, or if neither are residents, from any town clerk in the state.

In order to enter a civil union, the partners may not be in another civil union or marriage, must be of the same sex, and must meet all other requirements for marriage in Vermont. They are not required to be residents of Vermont or even citizens of the U.S.

A civil union is dissolved in the same manner as a marriage, and requires at least one partner to have been a resident of Vermont for at least 6 months prior to filing for dissolution and the partner must be a Vermont resident for at least one year prior to the final hearing granting the dissolution.

Vermont does not specifically recognize domestic partnerships or reciprocal beneficiary relationships entered in other states. The state also does not permit same-sex marriages.

Vermont civil unions are recognized in New Jersey. They will also be recognized in California once that state's new domestic partnership act goes into effect on January 1, 2005.

Domestic Partnership

A third alternative to same-sex marriage — domestic partnership — emerged in California in 2000, and has subsequently been implemented in New Jersey and Maine.

California

In 1999, California created a state domestic partner registry and in January 2000 began extending health benefits to state employees who registered their partnership. The state expanded the rights of domestic partners in 2002 when it enacted the AB25, the Domestic Partnership Act of 2002.

The 2002 Act provided about 20 rights to same-sex couples and opposite-sex couples who were at least 62 years old. Realizing that there were significant flaws in the 2002 Act, the state enacted the Registered Domestic Partner Rights and Responsibilities Act of 2003, which goes into effect on January 1, 2005.

The new Act provides nearly all of the state rights and responsibilities afforded to married couples in California. Federal rights given to married couples are not available.

In order to register, the partners must be at least 18 years of age, have a common residence, neither married to someone else nor a member of another domestic partnership, and of the same sex or, if they are of opposite sex, one or both partners must be at least 62 years old. They are not required to be U.S. citizens and may not be required to be residents of California.

Partners may terminate a domestic partnership in one of two ways. They may file a proceeding in state court, following the same rules and procedures as a marriage termination. Alternatively, they may terminate their partnership by filing a Notice of Termination if they have been together less than 5 years and they meet other criteria, such as having only limited community property.

The new California law when it goes into effect will extend recognition to legal unions entered elsewhere that are substantially similar to a domestic partnership. Although it is clear that a Vermont civil union would be recognized in California, it is not yet clear whether California would recognize New Jersey and Maine domestic partnerships or Hawaii reciprocal beneficiary relationships. California does not allow same-sex marriage and explicitly does not recognize same-sex marriages entered elsewhere.

New Jersey

The New Jersey Domestic Partnership Act, which went into effect in July 2004, is very similar in the protection that it provides to the earlier California law, AB 25.

The Act provides a limited set of rights to same-sex couples and to some opposite-sex couples. The rights include hospital visitation and health proxy rights, inheritance transfer tax exemption, and health and pension benefits for state employees, and statutory protection from discrimination on the basis of domestic partnership.

As in California, the partners must be at least 18 years of age, have a common residence, neither married to someone else nor a member of another domestic partnership, and of the same sex or, if they are of opposite sex, one or both partners must be at least 62 years old. They are not required to be U.S. citizens but, in general, they must have a New Jersey residence.

In order to terminate a registered partnership, one of the partners must file a petition in family court. The judge will decide the distribution of property, and may use equitable distribution (i.e., a fair but not necessarily equal division) to distribute all property acquired either jointly or individually during the partnership. There is no support (alimony) awarded unless the partners' had agreed to this in a contract.

The New Jersey Domestic Partnership Act explicitly recognizes civil unions, domestic partnerships and reciprocal beneficiary relationships entered in other states. New Jersey currently does not allow same-sex marriage, but it isn't clear whether the state would recognize a same-sex marriage entered elsewhere.

Maine

The recently enacted Maine Domestic Partnership Act, which went into effect in late July 2004, is the newest entry in the menu of choices for same-sex couples.

The Maine Act provides limited rights to registered, unmarried couples in three areas. First, it allows domestic partners to inherit from a partner who dies without a will. Second, it allows an incapacitated person's domestic partner to be appointed as their guardian or conservator. Third, it provides that a deceased person's domestic partner will automatically have the right to receive their remains and make funeral arrangements.

Unlike the laws in other states, domestic partners may be same-sex or opposite sex. They also may be related by blood or by adoption. In order to register, the partners must have been legally domiciled together for at least 12 months, unmarried or in another domestic partnership, and agree to be responsible for each other's common welfare. They are not required to be U.S. citizens nor are they require to be Maine residents.

At this time, Maine has not defined the termination procedure for domestic partnerships. Presumably, the partnership is terminated when one or both partners file a notarized affidavit attesting to the termination with the Maine Secretary of State.

Maine does not recognize domestic partnerships, civil unions or reciprocal beneficiary relationships formed in other states. It also does not allow same-sex marriage and does not recognize same-sex marriages entered elsewhere.

Civil Marriage

In North America, same-sex marriage is now legal in five jurisdictions — Massachusetts in the U.S., and in Ontario, British Columbia, Quebec, and the Yukon in Canada. Each of these has its own laws regarding marriage.

Massachusetts

Same-sex marriage became legal in Massachusetts on May 17, 2004. Couples who marry in Massachusetts have all of the same rights and responsibilities as opposite sex married couples.

Individuals who wish to marry must be at least 18 years of age, unless they have obtained a judge's permission. They must not be in another marriage or in a civil union or domestic partnership with someone else, and they may not be closely related, by either blood or marriage.

The couples must first get a blood test for syphilis and bring the results when they apply to a local town clerk, where they fill out a sworn notice of intent to marry. After waiting three days, they may pick up their marriage license from the clerk. The license is valid for 60 days from the date of the notice. During that period, the marriage must be solemnized by either a Justice of the Peace or a clergy member who is authorized by the State. The officiant will sign the license and send it to the State where the marriage is officially registered.

Although you do not have to be a U.S. citizen, same-sex couples must be residents of Massachusetts or intend to move to the state. This current impediment for out-of-state couples came about because the governor of Massachusetts, Mitt Romney, is a well-known and vocal opponent of same-sex marriage. He has chosen to enforce a previously unused law that prohibits non-resident marriages if the marriage would be void in the couple's state of residence. This law has recently been challenged in court and may be invalidated.

Massachusetts does not recognize domestic partnerships, civil unions or reciprocal beneficiary relationships entered elsewhere, other than as an impediment to marriage in some circumstances. The state does recognize marriages entered in other states and, probably, in Canada.

The Massachusetts Legislature passed a proposed amendment to the state's constitution that would prohibit same-sex marriage but would legalize civil unions. The exact same amendment must be approved in the next legislative session (2004-2005), and then must be ratified by the voters of Massachusetts. Therefore, same-sex couples who marry in the state should be aware that after 2006, their marriage may be invalidated or converted to a civil union should that amendment be ratified.

Canada

Same-sex marriage became a reality in Canada in June 2003, when courts in the provinces of Ontario and then British Columbia ruled that the prohibition against same-sex marriage violated the Charter or Rights and Freedoms. Shortly thereafter, the national government decided not to challenge the decisions.

Nearly a year later, in May 2004, the Quebec Court of Appeal legalized same-sex marriage in that province and in June 2004, the Yukon Territory followed suite.

In general, individuals who wish to marry in Ontario must be at least 18 years of age (19 in British Columbia and the Yukon), they must not be in another marriage or in a civil union or domestic partnership with someone else, and they may not be closely related, by either blood or marriage. There is no residency requirement nor is there a citizenship requirement. There is, however, a residency requirement for divorce.

In Ontario and British Columbia, the intended spouses first obtain a wedding license. They may then be married by an officiant, who signs the license. Two witnesses are required. Couples may be married in a civil ceremony or religious one.

In Quebec, the procedure is a bit different. The intended spouses first visit the person who will officiate, and set a date for their marriage. After ensuring that the requirements for marriage are met, the officiant publishes the banns of marriage at least 20 days in advance of the marriage. A civil marriage is solemnized in a public place before the officiant and two witnesses, after which a declaration of marriage is signed and forwarded to the Registrar of Civil Status. The procedure for a religious marriage is slightly different and depends, in part, on the particular religion.

Marriage in one Canadian province does not guarantee recognition in those provinces that currently prohibit same-sex marriage, such as Alberta. Canada is currently wrestling with the issue at the national level, which may result in a legalization and recognition of same-sex marriage throughout Canada.

In the U.S., the status of a Canadian marriage is unclear. Most states will refuse to recognize the marriage, as will the U.S. government. Already, there have been problems with same-sex Canadian couples visiting the U.S. One thing is clear, there will be considerable litigation in this regard.

Ceremonial Marriage

In this category I include those who choose to have a ceremonial marriage that is not state-sanctioned. By this I mean that two partners marry in a religious or quasi-religious ceremony but are not granted a legal license. These ceremonial marriages can be accompanied by various written documents attesting to the marriage.

Although these marriages are not sanctioned by the state, they can be persuasive if the legal documents that are created to protect the partners are challenged in some way. In effect, the guests at your wedding become additional witnesses to your relationship and as many as possible should sign a commitment document if you have one.

Summary

Having laid out all the forms of state-sanctioned protection for same-sex couples in North America, in Part 2 of this article, I will compare the options and also discuss problems that occur when a couple leaves home.