Same-Sex Marriage

Nonmarital Relationships & Proposition 8

The concept of “common law marriage” has long been abolished in California (Maglica v. Maglica (1998) 66 Cal.App.4th443).

Such relationships do not confer rights and obligations under the Family Code such as division of property interest, fiduciary duty rights or obligations, and spousal support. However, the domestic violence section of the Family Code does extend protection to nonmarital relationships.

In California, nonmarital relationships are governed by Marvin v. Marvin (1976) 18 Cal. 3d 660. Based on this case, nonmarital cohabitants can enforce express or implied agreements between the parties as they would under contract law for shared earnings and acquired assets. The remedies include constructive trust, resulting trust of equitable lien, and specific performance. Although the legal terminology may be completely foreign to you, the bottom line is that even without the protection of the Family Code which specifies parties’ rights over assets, debts, and properties, you have remedies under the law for recovery which can put you in the place you would have been in had you been married.

There is no need for parties to live together on a full time basis. Cohabitation could be shown by part-time cohabitation. The major case on this issue is Cochran v. Cochran III (2001) 89 Cal. App.4tg 283, where Cochran was cohabiting with his mistress.

If there are claims for shared earnings and/or asset acquisition, you need to know that there is a statute of limitation. You should not wait too long after separation to pursue your claim(s) or you may lose the ability to pursue it.

Same sex couples can bring the same Marvin action for enforcement with similar limitations. Marvin claims are not void, invalidated, or extinguished by a subsequent marriage. The fact that there is a Registered Domestic Partnership or a married party in and of itself does not affect a claim brought under Marvin.

Registered Domestic Partner Act

As of January 2005, California enacted the Domestic Partner Rights and Responsibilities Act under Family Code 297.

Couples must register with the Secretary of State. There are requirements and conditions that must be met for registration.

A registered domestic partner is not eligible to marry or enter into another civil union or another registered domestic partnership until a party dissolves the existing registered domestic partnership. Registered domestic partnership dissolution involves the same procedures as Dissolution of Marriage proceedings.

Failure to register with the Secretary of State will result in having an invalid registered domestic partnership, unless lack of registration is due to an objective and reasonable good faith belief that a valid registration took place.

Almost all the rights, benefits, protections, and obligations of spouses apply to registered domestic partnership couples. The only exception is that they cannot use the title of “married.”

Under Family Code Section 299.2 , the State of California recognizes legal unions of same sex couples from other jurisdictions which are defined substantially the same as domestic partnerships in California.

Unlike married couples, there is no residency requirement in order for the court to exercise subject matter jurisdiction and terminate a registered domestic partnership relationship. However, one party must reside in California in order for the court to take personal jurisdiction over the parties.

A registered domestic partner has the same rights and obligations to children born to the other registered domestic partner during the relationship. This includes rights of custody, visitation, and child support. The Court may order stepparent visitation to a registered domestic partnership couple under Family Code 3101, but it will require guardianship in such cases.

Registered domestic partnership couples can enter into postnuptial agreements, as well as execute Marital Settlement Agreements upon dissolution of the partnership.

Marriage and Proposition 8

Key Dates

January 1, 2005: the Domestic Partner Law was enacted.

November 5, 2008: Court filing and Stay of Proposition 8 granted.

December 13, 2008: Election on Proposition 8 resulted in 52.3% in favor of the proposition.

March 5, 2009: the Court rendered a decision that Proposition 8 is valid, and marriages performed between June 15, 2008 and November 5, 2008 are valid.

Recent Developments

The Family Code was amended to create a statutory recognition of out-of-state same sex marriages/unions (Family Code 308(c)).

Recently, Central District Bankruptcy judges held the Defense of Marriage Act (DOMA) unconstitutional. President Obama’s administration and the Attorney General are not defending DOMA when challenged in court. A human rights non-profit organization in California has recently filed a challenge against DOMA in the context of immigration. We expect more DOMA challenges. I am inclined to say that the U.S. is moving along the same line that Canada did back in 1999-2000. A little late is better than never.

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