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  
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          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.)  

                                                                      



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          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.)

                                                                      



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           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  
                                                                      



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            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  
                                                                      



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          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)

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