Alex Blaze

What'll happen to Californian domestic partners?

Filed By Alex Blaze | July 31, 2008 5:00 PM | comments

Filed in: Living, Marriage Equality, Politics, Politics, Politics, The Movement
Tags: California, domestic partnership, France, health care reform, insurance, LGBT, marriage, PACS

I've been doing a lot of personal research into French PACS (civil unions) this past week, and it's gotten me to wonder about what exactly is going to happen to Californian domestic partners. California created its domestic partnership registry in 1999 and expanded the rights in 2005 to include almost everything marriage gets. But will those relationships change as a result of their supreme court's ruling?

Here's what the California Secretary of State's website says:

The California Supreme Court decision issued on May 15, 2008, regarding same-sex marriages did not invalidate or change any of the Family Code statutes relating to registered domestic partners. Until a Notice of Termination is filed with our office, a registered domestic partnership will remain active on the California's Domestic Partnership Registry. This office will continue to process Declarations of Domestic Partnership, Notices of Termination of Domestic Partnership and other related filings as permitted by the domestic partnership law. If you have specific questions about how the Supreme Court's decision may apply to your circumstances, you should consult with a private attorney.

That's good, but it still leaves many unanswered questions.

In France, same-sex and opposite-sex couples can enter a PACS, a relationship registry with many, but not all, of the rights of marriage. Inheritance and adoption rights are limited, but a PACS is easier to enter into and exit than a marriage. Also, French statutory law decides how property is owned in a marriage and divided after divorce, but a PACS requires the happy couple to write up their own agreement as to what will happen to property in the relationship and if it's dissolved.

In other words, a PACS is a useful way for many couples who aren't ready or able to marry to obtain some of the rights necessary to protect their relationship. If marriage ever gets opened up to same-sex couples here (lots of people have their doubts about that one, as France has started its own conservative back-swing), that would create a flexible, modern, and equal system of recognizing relationships in this country.

And the need is here - Le Monde reported last year that only 7% of people who get a PACS are same-sex couples, while the number of couples getting married here hasn't decreased in the seven years since the PACS was created. In other words, there were and are many heterosexual couples who don't want to get married, with all that entails, and would rather get a civil union. Something tells me that if same-sex couples had the option to choose from either, there would be many couples in either relationship, just like straight couples.

(It's also worth noting that even couples who don't get a PACS or a marriage are still entitled to "concubinage" rights, either through proof that they lived together and depended on one another or by getting a statement to that effect notarized. Rights are limited and relate to inheritance, taxation, and housing.)

That's why I'm interested in what's happening in California regarding domestic partnerships. Here a state that has created a two-tiered system (for a multi-tiered population), in a country where most people can only enter one type of relationship. If the initiative to ban same-sex marriage fails in November, the Secretary of State has indicated that domestic partnerships will continue there.

According to the San Francisco Chronicle, this means that a couple can be both married and DP'ed at the same time:

The office of state Sen. Carole Migden, D-San Francisco, who sponsored the state's domestic-partnership legislation, has been flooded in the past week with calls from couples wondering if they would have to dissolve the union - which literally means going through divorce court - in order to marry.

Migden and Secretary of State Debra Bowen contacted the Legislative Counsel of California and were told dissolving a domestic partnership would not be necessary. A written opinion is expected to follow next week, Migden said.

"This is kind of the pleasant aftermath of a historic ruling," Migden said.

Until November, it's probably a good idea for married, same-sex couples in California to keep their domestic partnerships as well. What would happen, though, if a couple wanted to dissolve one and not the other (both require a couple to go to divorce court)? I'm waiting for the first case on that one.

Currently, though, same-sex couples in California have two options instead of one, even though they're pretty much the same thing, since domestic partnerships are only open to same-sex couples and elderly heterosexual couples who might see diminished Social Security benefits if they marry. And while marriage and domestic partnerships are pretty much the same thing in California, DP's do have a benefit:

It is easier to get a domestic partnership than it is to get married in California.

From NCLR: "In order to enter into a marriage, a couple must obtain a marriage license and 'solemnize' it - this requires having a ceremony with one to two official witnesses. Couples can enter a domestic partnership by filling out and mailing in a form, the notarized Declaration of Domestic Partnership. They do not need to obtain a license, have witnesses, or 'solemnize' the partnership with a ceremony."

And as someone who's particularly disdainful of ceremonies (my mother said I was the saddest student at my college graduation ceremony, and I said, yeah, I just had to sit through two hours of speeches after standing around for two hours waiting, followed by hours of small-talk, all in the heat. It put me in a bad mood all day), I wouldn't discount that benefit.

More importantly, though, there are many different relationships that people are engaging in right now and I hope that California decides to do something creative with their domestic partnership registry instead of eliminating it or rolling it into the marriage column, should Proposition 8 lose this November. There are many types of family relationships that need to be recognized, and one-size-fits-all marriage doesn't work for everyone, and France's two-tiered system for heterosexuals is proof of that.

The other, probably even more important question is whether businesses that offered domestic partnership benefits in the past will continue to do so in the future. A law.com article about just that quotes a Pacific Gas & Electric Co. representative who said that "the company is reviewing its policies." (Thanks to Ricci for emailing me that article.)

That difference doesn't apply to France, which has a wonderful single-payer health care system and a complete state-sponsored retirement program. But I'll hopefully have more information on how private businesses will treat domestic partnerships in coming days.


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bmore_active | July 31, 2008 7:45 PM

I think this is a really interesting (and important) topic. I'm really torn on it--I like the idea of people being able to tailor their legal rights and responsibilities to what they actually desire, but I'm also leery of people being able to chose all the positive benefits without any of the responsibilities. For example, I would not want to see people be able to have tax-free property transfer and inheritance rights without also having some responsibility for each others debt. Similarly, if people are able to transfer money tax-free, they should be being taxed together. Otherwise it would be too easy for relatively wealthy people to shift and hide money, thereby getting out of paying their "fair share."

This is related to (although not the same as) my concerns about dismantling marriage altogether and simply allowing people to form whatever contracts they want. It makes sense to me to protect spouses from having to pay real estate transfer and inheritance taxes when their spouse dies, but I don't think that other people (friends, children, etc) should be exempt from taxation. Changing the benefits of marriage from a "package deal" to an a la carte menu unattached to a romantic/sexual relationship would undermine the state's ability to engage in the (limited) redistribution that currently exists through inheritance and related laws. I'm not sure what is the solution.

inkpeninmd | August 1, 2008 3:14 AM

I'm not sure how often the CA Sec State posts updates to the California Code on its website. The code posted as of today does not detail the new requirements for terminating a Domestic Partnership resulting from a Jan 1 2005 change to the DP law. If somebody finds it, please cite it here.

Anyway... I'm thinking that the legislature is going to have to amend the DP law to effect an automatic dissolution of Domestic Partnership on occasion of marriage by the partners. Either that or streamline the process as part of filing a marriage license/certificate with the county. And since the whole point of DPs in the first place was a stop gap until marriage laws were changed the legislature may go ahead and close that option to anyone under 62 after some future effective date.

DPs and marriage for same sex couples only would be special rights.

To bmore_active: The way I see it, no one should lose their primary residence because of taxes when a co-owner dies. It shouldn't matter if that is a spouse, friend, or relative. The point is to allow a person to remain in the home they co-own. Now in California, there is no tax reassessment when a homeowner leaves his home to a child or grandchild, so children and grandchildren who DON'T live in the home and couldn't afford to pay the current tax rate on it get to live there, but a co-owner who is an unmarried/unregistered partner of decades, or a friend with whom the deceased co-owner was raising children, or a friend who pooled resources to live with the deceased co-owner faces a loss of her own home.

One thing that I've wondered is what happens if a couple gets a CU and gets married if they decide to break up? Do they have to get 2 divorces?

I'm also curious about this, and if DPs might be *expanded* to include opposite-sex partnerships for those under 62 years old.

My best-friend/roommate and I (both queers, but different genders) were looking into the possibility of registering as a DP last fall in order to save on health insurance and in some way formalize our relationship legally (given that we now live on the opposite coast from our families), but quickly realized that wasn't an option. We've known each other for about 15 years, and while our relationship isn't romantic or sexual, we do see ourselves as caring for one another.

It makes sense to me that if the legal definition of marriage is opened up, that DPs should be as well. I'm all for creating new structures and agreements that allow for individuals who love (in a variety of ways) and care for each other to benefit.