BILL ANALYSIS SENATE JUDICIARY COMMITTEE Senator Ellen M. Corbett, Chair 2009-2010 Regular Session AB 2700 (Ma) As Amended April 5, 2010 Hearing Date: June 22, 2010 Fiscal: Yes Urgency: No KB:jd SUBJECT Domestic Partner Registration: Termination DESCRIPTION This bill, sponsored by Equality California and the Conference of California Bar Associations, would permit couples that are both married and registered domestic partners to dissolve both unions in a single court proceeding. This bill would further clarify that, in a dissolution proceeding, courts may dissolve out-of-state, same-sex marriages recognized in California. BACKGROUND In 1996 Congress passed, and President Clinton signed, the federal Defense of Marriage Act (DOMA), which among other things says that no state is required under federal law to give effect to marriages of same-sex couples contracted in other states. In light of the federal DOMA, some states, including California (Proposition 22), enacted statutory measures prohibiting recognition of marriages entered into by same-sex couples in other jurisdictions. On May 15, 2008, the California Supreme Court, in a 4-3 decision, struck down as unconstitutional the California statutes limiting marriage to a man and a woman. Following the Court's landmark decision, approximately 18,000 same-sex couples wed in California. However, opponents of same-sex marriage began circulating petitions to amend the statutory text of invalid Family Code Section 308.5 into the Constitution even before the Supreme Court issued its ruling, and enough signatures were gathered to qualify the petition as Proposition (more) AB 2700 (Ma) Page 2 of ? 8. Civil rights groups filed suit with the California Supreme Court in the case of Bennett v. Brown, arguing that Proposition 8 should not move forward for a popular vote without going to the Legislature because the proposition constituted a revision, or a structural change, to the Constitution. However, the Court declined to hear the case at the time. On November 4, 2008, Proposition 8 passed by a narrow 52 percent margin. Civil rights organizations again filed suit with the California Supreme Court, asking that it overturn the initiative as an invalid revision. On May 26, 2009, the Supreme Court in Strauss v. Horton (2008) 46 Cal.4th 364, upheld Proposition 8 in a 6-1 decision, but held, unanimously, that the same-sex marriages performed in California before the passage of Proposition 8 remain valid. The Court reiterated the widely recognized legal principle that statutory enactments apply prospectively only, absent clear intent to the contrary. The Court went on to discuss whether a retroactive application of the proposition would deprive any individual of vested rights with due process: Here, same-sex couples who married after the decision in the Marriage Cases, supra, 43 Cal.4th 757, was rendered, and before Proposition 8 was adopted, acquired vested property rights as lawfully married spouses with respect to a wide range of subjects, including, among many others, employment benefits, interests in real property, and inheritances. These couples' reliance upon this court's final decision in the Marriage Cases was entirely legitimate. A retroactive application of the initiative would disrupt thousands of actions taken in reliance on the Marriage Cases by these same-sex couples, their employers, their creditors, and many others, throwing property rights into disarray, destroying the legal interests and expectations of thousands of couples and their families, and potentially undermining the ability of citizens to plan their lives according to the law as it has been determined by this state's highest court. By contrast, a retroactive application of Proposition 8 is not essential to serve the state's current interest (as reflected in the adoption of Prop. 8) in preserving the traditional definition of marriage by restricting marriage to opposite-sex couples; that interest is honored by applying the measure prospectively and by having the traditional definition of marriage enshrined in the state Constitution where it can be altered only by a majority of California voters. (Id. at 473-74.) AB 2700 (Ma) Page 3 of ? Accordingly, the estimated 18,000 same-sex marriages that occurred in California between the Marriage Cases decision and passage of Proposition 8 remain valid. In addition, last year, the Legislature passed, and the Governor signed, SB 54 (Leno, Chapter 625, Statutes of 2009) which provides that all valid same-sex marriages entered into outside of California before passage of Proposition 8 are valid as such in California. This bill seeks to correct a procedural problem for married couples in California who are also registered domestic partners, and to clarify that same-sex out-of-state marriages that are valid under SB 54 may be dissolved in California. CHANGES TO EXISTING LAW Existing law provides that the dissolution or nullity of a domestic partnership and legal separation of domestic partners must follow the same procedures, and the partners must possess the same rights, protections, and benefits and be subject to the same responsibilities, obligations, and duties, as apply to the dissolution or nullity of a marriage or legal separation of spouses, except as provided. (Fam. Code Sec. 299.) Existing law provides for a simplified process to terminate a registered domestic partnership if specified conditions are met, including that the union lasted not more than five years and there are no children of the relationship. (Fam. Code Sec. 299.) Existing law provides for a simplified process to dissolve a marriage if specified conditions are met, including that the union lasted not more than five years and there are no children of the relationship. (Fam. Code Sec. 2400.) Existing law permits the court, in a proceeding for dissolution or nullity of a marriage or for legal separation of the parties, to determine, among other things, the status of the marriage. (Fam. Code Sec. 2010.) Existing law provides that, notwithstanding any other provision of law, a marriage between two persons of the same sex contracted outside this state that would be valid by the laws of the jurisdiction in which the marriage was contracted is valid in this state if the marriage was contracted prior to November 5, 2008. (Fam. Code Sec. 308.) AB 2700 (Ma) Page 4 of ? Existing law specifies that, notwithstanding any other provision of law, two persons of the same sex who contracted a marriage on or after November 5, 2008, that would be valid by the laws of the jurisdiction in which the marriage was contracted, shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, as specified, as are granted to and imposed upon spouses, with the sole exception of the designation of "marriage." (Fam. Code Sec. 308.) This bill would permit parties to a registered domestic partnership who are also married to each other to petition the court to dissolve both their domestic partnership and their marriage in a single proceeding. This bill would require the Judicial Council to develop a form for the above-described proceeding. This bill would clarify that, in a dissolution proceeding, courts may dissolve out-of-state, same-sex marriages recognized in California. COMMENT 1. Stated need for the bill The author states: If couples [who are both legally married and registered domestic partners] choose to terminate their legal relationship, they must file two petitions in the Superior Court of California, pay two filing fees (at a cost of $710), and prosecute or consolidate the two separate proceedings to both dissolve their marriage and terminate their domestic partnership. This dual termination process is unnecessarily burdensome and costly to the parties, involving consolidation motions and additional unnecessary legal hurdles. This additional AB 2700 (Ma) Page 5 of ? cumbersome process will often take 1-2 years longer to take place in the courts, which unnecessarily wastes judicial resources. 2. Bill would create a simplified process for dissolving relationships In 1999, the Legislature enacted AB 26 (Migden, Chapter 588, Statutes of 1999) which created the state's first domestic partnership statute. This statute, which forms the backbone of California's domestic partnership law, provided for domestic partnerships to be registered with the Secretary of State, for public employers to offer health benefits to domestic partners, and for domestic partners to have hospital visitation rights. Since 1999, over 15 statutes have been enacted to provide legal protections to domestic partners in California. Since 1999, many same-sex couples have registered as domestic partners in California. Some of these couples later married when that option became available to them during the time period between the In re Marriage Cases decision and the passage of Proposition 8 in November 2008. As previously discussed, these marriages remain valid even after passage of Proposition 8, per Strauss v. Horton. As a result, some same-sex couples are both married and registered domestic partners. Should any of these same-sex couples choose to legally separate, they must both terminate their domestic partnership and dissolve their marriage in two separate, but identical court proceedings. The requirement for a dual dissolution process significantly increases costs and time for both the parties and the courts, seemingly without any benefit. Additionally, many same-sex couples terminating their unions are likely to be doing so without the assistance of counsel. Without legal counsel, these couples may not realize that they need to terminate their marriage and their domestic partnership in separate proceedings. This creates a risk that their legal relationships will not be dissolved and could lead to significant complications in the future. For example, a party may decide to remarry without realizing that he or she may still be married. Accordingly, this bill would allow couples who are both married and in a registered domestic partnership to dissolve both their marriage and domestic partnership in a single proceeding. This bill would also require the Judicial Council to develop a form to be used for this single proceeding. These proposed statutory changes would arguably reduce unnecessary confusion and save AB 2700 (Ma) Page 6 of ? time and money to both the parties and the courts. 3. Bill would make a clarification to SB 54 (Leno, Chapter 625, Statutes of 2009) As previously mentioned, SB 54 (Leno, Chapter 625, Statutes of 2009) which provided that all valid same-sex marriages entered into outside of California before passage of Proposition 8 are valid as such in California. This bill further provided that these married couples have the same rights and obligations as are granted to spouses in California, with the sole exception being the designation of "marriage." A number of judges have suggested that SB 54 should be clarified to ensure that the law is not misapplied when couples seek to dissolve these marriages. As such, this bill would clarify that, although these couples cannot be designated as "married," the court still has jurisdiction to inquire into and make judgments concerning the status of these unions in a dissolution proceeding. Support : American Civil Liberties Union; Asian Law Caucus; California Communities United Institute; Out & Equal Workplace Advocates; Public Advocates; Sacramento Lawyers for the Equality of Gays and Lesbians; Transgender Law Center Opposition : None Known HISTORY Source : Conference of California Bar Associations and Equality California Related Pending Legislation : None Known Prior Legislation : See Background. Prior Vote : Assembly Judiciary Committee (Ayes 7, Noes 3) Assembly Appropriations Committee (Ayes 12, Noes 5) Assembly Floor (Ayes 47, Noes 26) ************** AB 2700 (Ma) Page 7 of ?