P.L.2006, c.103. NJ Civil Union Bill
December 21, 2006
This bill would amend and supplement the marriage statutes to include civil unions. The bill defines a civil union as a legally recognized union of two eligible individuals of the same sex.
The purpose of the bill is to provide same-sex couples with the same opportunity as heterosexual couples who choose to marry and to comply with the constitutional mandate set forth by the New Jersey Supreme Court in its recent landmark decision on October 25, 2006 of Lewis v. Harris, 188 N.J. 415 (2006).
As the findings and declarations section of the bill states, same-sex couples in New Jersey live together in committed relationships without the benefits and rights afforded to heterosexual couples who choose to marry. Promoting such stable and durable relationships as well as eliminating obstacles and hardships these couples may face is necessary and proper and reaffirms this State's obligation to insure equality for all the citizens of New Jersey.
New Jersey was one of the first to adopt comprehensive legislation prohibiting discrimination based on affectional or sexual orientation and one of the first to formally recognize domestic partnerships by enacting the Domestic Partnership Act,
P.L.2003, c. 246 (C.26:8A-1 et seq.) on January 12, 2004, thereby guaranteeing in law certain rights and benefits to those individuals who enter into domestic partnerships. Those rights and benefits afforded to same-sex couples under the Domestic Partnership Act should be expanded by the legal recognition of civil unions between same-sex couples.
In the Lewis v. Harris decision, the Court held that the State was violating the equal protection guarantee of Article I, paragraph 1 of the State Constitution by denying rights and benefits to committed same-sex couples which were statutorily given to their heterosexual counterparts. The Court stated that, [T]the State can fulfill that constitutional requirement in one of two ways. It can either amend the marriage statutes to include same-sex couples or enact a parallel statutory structure by another name, in which same-sex couples would not only enjoy the rights and benefits, but also bear the burdens and obligations of civil marriage.
Id. at 463. This bill fulfills this requirement by amending the marriage statute to include civil unions.
General Provisions. Under the provisions of the bill, a person who wishes to enter a civil union must satisfy all of the following requirements: not be a party to another civil union, domestic partnership or marriage in this State or any other state; be of the same sex and therefore be excluded from the marriage laws in this State; and be at least 18 years of age or older, except if the minor has parental consent to enter into a civil union.
The bill provides that parties to a civil union would have all the same benefits, protections and responsibilities under law, whether they derive from statute, administrative or court rule, public policy, common law or any other source of civil law, as are granted to spouses in a marriage. The parties to a civil union may modify the terms, conditions or effects of their civil union in the same manner and to the same extent as married persons who execute an antenuptial agreement or other agreement recognized and enforceable under the law, setting forth particular understandings with respect to their union. The parties to a civil union would be responsible for the support of one another to the same degree and in the same manner as prescribed under law for married persons. The dissolution of civil unions would also follow the same procedures and be subject to the same substantive rights and obligations that are involved in the dissolution of a marriage.
The laws of domestic relations, including annulment, premarital agreements, separation, divorce, child custody and support, property division and maintenance, and post relationship spousal support, would apply to the parties to a civil union. Also, the rights of the parties to a civil union, with respect to a child of whom either becomes the natural parent during the term of the civil union, would be the same as those of a married couple, with respect to a child of whom either spouse becomes the natural parent during the marriage.
The bill enumerates some legal benefits, protections and responsibilities of spouses which would apply in like manner to the parties to a civil union, however, this list should not be construed to be an exclusive list of such benefits, protections and responsibilities: (1) laws relating to title, tenure, descent and distribution, intestate succession, waiver of will, survivorship, or other incidents of the acquisition, ownership or transfer, inter vivos or at death, of real or personal property, including eligibility to hold real and personal property as tenants by the entirety; (2) causes of action related to or dependent upon spousal status, including an action for wrongful death, emotional distress, loss of consortium, or other torts or actions under contracts reciting, related to, or dependent upon spousal status; (3) probate law and procedure, including nonprobate transfer; (4) adoption law and procedures; (5) laws relating to insurance, health and pension benefits; (6) domestic violence protections and domestic violence programs; (7) prohibitions against discrimination based upon marital status; (8) victim's compensation benefits, including compensation to spouse, children and relatives of homicide victims; (9) workers' compensation benefits pursuant to chapter 15 of Title 34 of the Revised Statutes, including survivors benefits and payment of back wages; (10) laws relating to emergency and nonemergency medical care and treatment, hospital visitation and notification, and any rights guaranteed to a hospital patient or a nursing home resident; (11) advance directives for health care and designation as a health care representative; (12) family leave benefits; (13) public assistance benefits, medical assistance, Supplemental Security Income, pharmaceutical assistance, hearing aid assistance, and utility benefits; (14) laws relating to taxes imposed by the State or a municipality other than estate taxes, including tax deduction based on marital status or exemptions from realty transfer tax based on marital status; (15) laws relating to immunity from compelled testimony and the marital communication privilege; (16) the home ownership rights of a surviving spouse; (17) the right of a spouse to a surname change without petitioning the court; (18) laws relating to the making of, revoking and objecting to anatomical gifts; (19) State pay for military service; (20) application for absentee ballots; (21) legal requirements for assignment of wages; and (22) laws related to tuition assistance for higher education for surviving spouses or children.
Licensing requirements. This bill amends and supplements Title 37 of the Revised Statutes concerning marriage to include civil unions. Under the provisions of the bill, the same requirements and restrictions which currently apply to the issuance of a marriage license would apply to the issuance of a civil union license. For example, the bill provides that before a civil union can be lawfully performed in this State, the persons to the proposed civil union must obtain a civil union license from the licensing officer and deliver it to the person who is to officiate. The bill would also expand the current prohibitions concerning marriage to include civil unions: (1) a man could not enter into a civil union with his brother or the son of his brother or sister or the brother of his father or mother; and (2) a woman could not enter into a civil union with her sister, the daughter of her brother or sister, or the sister of her father or mother.
The civil union license would be issued by the licensing officer in the municipality in which either party resides or, if neither party is a resident of the State, in the municipality in which the proposed civil union is to be performed.
The civil union license cannot be issued by the local registrar sooner than 72 hours after the application therefore has been made. However, the Superior Court may, by order, waive all or any part of said 72-hour period in cases of emergency, upon satisfactory proof being shown to it. A civil union license would be valid only for 30 days after the date of the issuance. A civil union licenses can be issued to a minor provided his parent or guardian consents.
The licensing officer before issuing a civil union license would require the parties to appear before him and to subscribe and swear to an oath attesting to the truth of the facts with respect to the civil union. This testimony would be verified by a witness of legal age. Any person who knowingly provides false answers to any of the inquiries would be guilty of perjury. The licensing officer shall be required to set forth: the name, age, birthplace of each party to the civil union, name and birthplace of their parents, the person or the religious society who perform the ceremony and the two witnesses who would be present at the civil union. The civil union license and the original civil union certificate would be transmitted to the local registrar. One copy of the civil union certificate shall be retained by the local registrar and one copy shall be given to each party to a civil union. The remaining copy shall be retained by the person certifying the civil union. Any civil union which has occurred or which may hereafter occur and which is not recorded with the State Registrar may be recorded by filing a delayed report with the State Registrar, documented by a copy of the application for the civil union license.
Fees. The same $28.00 fee which is currently required for a marriage license would be required for a civil union: This consists of a $3.00 fee for the license plus an additional fee of $25 which is earmarked toward domestic violence shelters.
Officials authorized to perform a civil union. Those persons who may currently solemnize marriage may also perform a civil union: a judge of the United States Court of Appeals for the Third Circuit, judge of a federal district court, United States magistrate, judge of a municipal court, judge of the Superior Court, judge of a tax court, retired judge of the Superior Court or Tax Court, or judge of the Superior Court or Tax Court, the former County Court, the former County Juvenile and Domestic Relations Court, or the former County District Court who has resigned in good standing, surrogate of any county, county clerk and any mayor or the deputy mayor when authorized by the mayor, or chairman of any township committee or village president of this State, and every minister of every religion.
Premarital and Pre-civil union agreements. The bill amends the Uniform Premarital Agreement Act, N.J.S.A.37:2-31 et seq. to include pre-civil union agreements.
Vital Statistics provisions. This bill would also amend various provisions in Title 26 of the Revised Statutes concerning the State Registrar of Vital Statistics and recording, indexing and transmission of marriage certificates and licenses to include civil unions.
Under the current law, the State Registrar of Vital Statistics is charged with the general supervision of registration of vital statistics and as such the State registrar is also in charge of maintaining and indexing the records pertaining to marriages, death and births. This bill would expand the duties of the State registrar by also requiring civil union records to be maintained and indexed by the State registrar.
The local registrar, under the supervision of the State registrar, is currently charged with the responsibility of coordinating the filing of the proper licenses and certificates pertaining to marriages and transmitting the same to the State registrar. This bill would require the local registrar to also coordinate the filing of civil union licenses. Under the current provisions of the law, marriage licenses may be corrected and amended. This bill would require the same procedures for correcting or amending a civil union license or certificate.
Dissolution of civil unions, equitable distribution and legal separation of civil union partners. The dissolution of a civil union would follow the same procedures and be subject to the same substantive rights and obligations as are involved in the dissolution of marriage, including any residency requirements. The bill provides for the following ground for the dissolution of civil unions: voluntary sexual intercourse between a person who is in a civil union and an individual other than the person's civil union partner; willful and continued desertion for a period of 12 or more consecutive months, which may be established by satisfactory proof that the parties have ceased to cohabit as civil union partners; extreme cruelty; separation for a period of at least 18 or more consecutive months; voluntarily induced addiction or habituation or habitual drunkenness for a period of 12 or more consecutive months; institutionalization for mental illness for a period of 24; or imprisonment of the defendant for 18 or more consecutive months.
The bill would also provide for legal separation from a civil union partner. The current equitable distribution statute would be amended to provide for distribution of the property which was legally and beneficially acquired by the civil union partners or either of them during the civil union. In addition, the bill provides for alimony and maintenance upon dissolution of a civil union. The court, upon or after granting a dissolution of the civil union to either partner, may allow either partner to resume any name used by the partner before the civil union, or to assume any surname.
The Superior Court would have jurisdiction over dissolution of a civil unions and legal separations from a civil union partner. The filings fees for an action or proceeding for the dissolution of a civil union would be the same as those for filing divorce proceedings or actions.
Additional amendatory sections. This bill would also amend several sections of the statutory law to include civil unions. Here is a brief summary of those sections: (1) the Law Against Discrimination,
N.J.S.10:5-5 and N.J.S.10:5-12; (2) the definition of family member under the Family Leave Act,
N.J.S.34:11B-3; and (3) the spousal privilege , N.J.S.A. 2A:84A-17.
Existing domestic partnerships. The bill provides that on or after the effective date of this act, no domestic partnerships shall be registered under P.L.2003, c. 246 (C.26:8A-1 et seq.), except that two persons who are each 62 years of age or older and not of the same sex may establish a domestic partnership pursuant to the provisions of P.L.2003, c.246 (C.26:8A-1 et seq.). This bill would not alter the rights and responsibilities of domestic partnerships existing on or before the effective date of this act, except that eligible domestic partners shall be given notice and opportunity to enter into a civil union pursuant to the provisions of this act. Entry into a civil union, when joined by both parties to an existing domestic partnership, shall operate to terminate the domestic partnership.
Consistency provision. In an attempt to insure consistency with regard to all of the provisions in the statutory law concerning marriage and spouses and the rights and benefits thereof, the bill provides that whenever in any law, rule, regulation, judicial or administrative proceeding or otherwise, reference is made to marriage,
husband,
wife,
spouse,
family,
immediate family,
dependent,
next of kin,
or another word which in a specific context denotes a marital or spousal relationship, the same shall include a civil union.
Rule making power. The bill authorizes the Commissioner of Health and Senior Services in consultation with the Director of the Administrative Office of the Courts to adopt rules and regulations necessary to effectuate the purposes of this act.
Establishes Review commission. The bill would also establish a review commission, the New Jersey Civil Union Review Commission. The commission would be charged with the duty to study all aspects of the bill including, but not limited to: (1) evaluate the implementation, operation and effectiveness of the bill; (2) collect information about the bill's effectiveness from members of the public, State agencies and private and public sector businesses and organizations; (3) determine whether additional protections are needed; (4) collect information about the recognition and treatment of civil unions by other states and jurisdictions including the procedures for dissolution; and (5) review the Domestic Partnership Act,
N.J.S.A.26:8A-1 et seq. to determine whether this act should be repealed.
The commission would be composed of 13 members which would include: the Attorney General or his designee, the Commissioner of the Department of Banking and Insurance or his designee, the Commissioner of Health and Senior Services or his designee, the Commissioner of Human Services or his designee, the Commissioner of the Department of Children and Families or his designee, the Director of the Division of Civil Rights in the Department of Law and Public Safety of his designee, one public member appointed by the President of the Senate, one public member appointed by the Speaker of the General Assembly, and five public members appointed by the Governor, with the advise and consent of the Senate, no more than two who shall be of the same political party. The commission shall be established for a term of three years.
The commission would report annually its findings and recommendations to the Legislature and the Governor.
Effective date. The bill provides for a delayed effective date of 30 days after enactment in order to allow for any anticipatory administrative action which may be necessary for the implementation of the bill.
Resources
- Identical Bill Number: S2407
- Legislative Action
- 12/4/2006 Introduced, Referred to Assembly Judiciary Committee
- 12/7/2006 Reported out of Assembly Comm. with Amendments, 2nd Reading
- 12/11/2006 Assembly Floor Amendment Passed (Caraballo)
- 12/14/2006 Passed by the Assembly (56-19-5)
- 12/14/2006 Received in the Senate without Reference, 2nd Reading
- 12/14/2006 Substituted for S2407 (1R)
- 12/14/2006 Motion To Sa Lost (16-21) (Singer)
- 12/14/2006 Passed Senate (Passed Both Houses) (23-12)
- 12/21/2006 Approved P.L.2006, c.103.
- Associated Documents
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