BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 651 (Leno)
As Amended April 25, 2011
Hearing Date: May 3, 2011
Fiscal: Yes
Urgency: No
EDO
SUBJECT
Family Law: Domestic Partnerships
DESCRIPTION
This bill would eliminate the requirement that domestic partners
have a common residence in order to establish a registered
domestic partnership.
BACKGROUND
The first domestic partnership law in California was enacted in
1999 by AB 26 (Migden, Chapter 588, Statutes of 1999.) Among
other things, AB 26 created an official domestic partnership
registry, provided registered domestic partners hospital
visitation rights, and granted health benefits to domestic
partners of state employees. Several bills granting domestic
partners additional rights followed. SB 2011, (Escutia, Chapter
1004, Statutes of 2000) qualified registered domestic partners
for housing in specially designed accessible housing for senior
citizens. Two years later, AB 25 (Migden, Chapter 893, Statutes
of 2001) granted 12 new rights and benefits to registered
domestic partners, including (i) the right to sue for wrongful
death; (ii) the right to use employee sick leave to care for an
ill partner or partner's child; (iii) the right to make medical
decisions on behalf of an incapacitated partner; (iv) the right
to receive unemployment benefits if forced to relocate because
of a partner's job; and (v) the right to adopt a partner's child
as a stepparent.
In 2002, several additional bills were enacted granting domestic
partners additional rights. For example, AB 2216 (Keeley,
(more)
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Chapter 447, Statutes of 2002), granted a domestic partner
inheritance rights if his or her partner dies without a will.
SB 1575 (Sher, Chapter 412, Statutes of 2002) added domestic
partners to persons who are exempted from the prohibition on
benefiting from a will or trust that they helped draft; and SB
1661 (Kuehl, Chapter 901, Statutes of 2002) granted six weeks of
paid family leave to employees to care for a sick spouse or
domestic partner.
The California Domestic Partner Rights and Responsibilities Act
of 2003 further expanded the rights of domestic partners and
specifically stated that "registered domestic partners shall
have the same rights, protections, and benefits, and shall be
subject to the same responsibilities, obligations, and duties
under the law . . . as are granted to and imposed upon
spouses."(AB 205 (Goldberg), Chapter 421, Statutes of 2003.)
In 2004, AB 2208 created the California Insurance Equality Act
(Kehoe, Chapter 488, Statutes of 2004) which prohibited
insurance providers from issuing policies or plans that
discriminate against domestic partners and required insurance
plans that include coverage of spouses to include the same
coverage for domestic partners. SB 1827 (Migden, Chapter 802,
Statutes of 2006 ) created the State Income Tax Equity Act in
2006, which allowed registered domestic partners to file joint
income taxes in order to receive the same financial protections
afforded to married heterosexual couples. In 2007, AB 102 (Ma,
Chapter 567, Statutes of 2007) created the Name Equality Act
which allowed domestic partners to change their surnames,
regardless of gender, upon domestic partnership registration.
Most recently in 2010, AB 2055 (De La Torre, Chapter 590,
Statutes of 2010) extended the right to receive an award of
unemployment insurance benefits to a person who imminently plans
to enter into a registered domestic partnership that the law
currently provides for couples who are engaged to be married.
This bill would eliminate the requirement that registered
domestic partners must have a common residence.
CHANGES TO EXISTING LAW
Existing law provides that in order to establish a domestic
partnership, all of the following requirements must be met:
Both persons have a common residence.
Neither person is married to someone else or is a member of
another domestic partnership with someone else that has not
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been terminated, dissolved, or adjudged a nullity.
The two persons are not related by blood in a way that would
prevent them from being married to each other in this state.
Both persons are at least 18 years of age.
Either of the following: (i) both persons are members of the
same sex; or (ii) if members of the opposite sex, one or both
persons must be over the age of 62.
Both persons are capable of consenting to the domestic
partnership. (Fam. Code Sec. 297.)
This bill would eliminate the common residence requirement to
establish a domestic partnership.
COMMENT
1. Stated need for the bill
The author writes:
This bill would eliminate an existing difference between
domestic partners and married spouses by eliminating the
requirement that domestic partners have a common residence.
Existing case law recognizes that while same-sex couples lack
the right to enter into a relationship designated as
"marriage," they possess the right to the core set of basic
substantive legal rights and attributes associated with
marriage, including, the opportunity of an individual to
establish an officially recognized and protected family
possessing mutual rights and responsibilities and entitled to
the same respect and dignity accorded a union traditionally
designated as marriage.
The sponsor, Equality California writes "Equality California is
proud to sponsor �this bill], the Domestic Partner Equality Act.
This bill would reduce the legal inequalities under state law
that presently exist between marriages and domestic partnerships
in California. In 1999, Equality California sponsored the first
of many bills to obtain rights and responsibilities for same-sex
couples. That year, California established legal recognition
for same-sex relationships for the first time called registered
domestic partnerships. AB 26 (Migden) created a Domestic
Partner Registry housed within the California Secretary of
State. This groundbreaking law also established hospital
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visitation rights for domestic partners, and provided that state
and local government employers could offer health care coverage
and other benefits to domestic partners. This bill and
subsequent bills, now law, sponsored by Equality California,
extended many of the same rights enjoyed by married couples to
California's same-sex couples; however, differences remain."
2. This bill would eliminate the requirement that domestic
partners have a common residence in order to register as a
domestic partnership in California
Under existing law, in order to register as a domestic
partnership, two people must (i) have a common residence; (ii)
not be married to someone else or be a member of another
domestic partnership; (iii) not be related by blood in a way
that would prevent them from being married to each other in this
state; and (iv) be at least 18 years of age. Also, both persons
must be members of the same-sex or, if members of the opposite
sex, one or both persons must be over the age of 62. Finally,
both persons must be capable of consenting to the domestic
partnership.
In comparison, under existing law, in order to enter into a
valid marriage in California both people must be members of the
opposite sex, at least 18 years old (without parental consent)
and must not be married to anyone else. There is no common
residence requirement. This bill would eliminate the requirement
that domestic partners share a common residence in order to
register as a domestic partnership, making this more similar to
the requirements for marriage.
In support of the bill, Equality California writes "there are
important legal differences between domestic partnerships and
marriage under state law that were highlighted by the California
Supreme Court in its 2008 decision in In re Marriage Cases. For
example, same sex couples that wish to enter into a domestic
partnership must reside in the same household, even if they are
working in two different locations, while there is no such
requirement for marriage." The requirement that domestic
partners share a common residence, without the same requirement
for couples entering into marriage, results in discrimination
between spouses and domestic partners. Practically speaking,
the common residence requirement does not make sense. There may
be couples in long-distance relationships who have jobs in
different cities then their spouses or partners and are
committed to one another and want to make their relationship
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official through marriage or domestic partnership. Technically
speaking, these couples may not share a common residence. Since
there are currently legal barriers to same-sex couples entering
into a marriage, it is important to allow same-sex couples to
freely enter into a domestic partnership without the barrier of
sharing a common residence. This bill would also benefit
opposite-sex couples over the age of 62 who may wish to enter
into a domestic partnership, but do not share a common
residence.
This bill is another step in a long line of laws designed to
achieve parity between marriage and domestic partnerships in
California. AB 205 (Goldberg, Chapter 421, Statutes of 2003.)
created the California Domestic Partner Rights and
Responsibilities Act of 2003 (Act) and included intent language
stating that the Act is "intended to help California move closer
to fulfilling the promises of inalienable rights, liberty, and
equality contained in Sections 1 and 7 of Article 1 of the
California Constitution by providing all caring and committed
couples, regardless of their gender or sexual orientation, the
opportunity to obtain essential rights, protections, and
benefits and to assume corresponding responsibilities,
obligations, and duties and to further the state's interests in
promoting stable and lasting family relationships, and
protecting Californians from the economic and social
consequences of abandonment, separation, the death of love ones,
and other life crises." This language was meant to express the
intent of the Legislature that domestic partners be afforded the
same rights and responsibilities of married persons.
As further argued by the respondents, including the American
Civil Liberties Union, Lambda Legal and the National Center for
Lesbian Rights, in their supplemental brief filed in the In re
Marriage Cases, "the common residence requirement imposes a
burden on same-sex couples who do not wish to live together
prior to domestic partnership for personal, religious or moral
reasons. In contrast, heterosexual persons who wish to refrain
from living together until after marriage are free to do so."
The justification for this different requirement is unclear. It
is also unclear what the public policy reasons are for why two
people must share a common residence in order for them to form a
domestic partnership when the same is not true for two people
entering into marriage. It is fairly common, and very accepted
that some couples apply for a marriage license and are married
before ever sharing a common residence. Further, the respondents
note "in addition, the common residence requirement prevents
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same-sex couples who are in a long-distance relationship from
entering into a legal union unless they are able to establish a
common residence at the time of registration, while there is no
barrier for similarly situated heterosexual couples who wish to
marry. For example, a heterosexual person who is forced to live
apart from his or her different-sex partner because of work or
education requirements, or to care for a sick or elderly family
member, can legally marry without establishing a common
residence with his or her spouse. A lesbian or gay person,
facing identical circumstances, would be barred from entering
into a legal union."
Currently in California, a domestic partnership is the only way
for same-sex couples to make their relationship official. The
two unions are unequal when they have different requirements for
entering into them. This bill will take another step towards
equality between domestic partnerships and marriage.
Support : Association of Certified Family Law Specialists
Opposition : None Known
HISTORY
Source : Equality California
Related Pending Legislation : SB 757 (Lieu) would require that
every health insurance policy issued or delivered to a resident
of this state, regardless of where the insurer is located, must
comply with California laws regarding equal benefits and
coverage for an employee's domestic partner as to a spouse.
This bill has been referred to the Senate Committee on
Judiciary.
Prior Legislation : See Background.
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