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 ?