Domestic Partnerships

Certain state and cities are allowing committed couples that live together to document their relationship by registering as domestic partners.

A domestic partnership is a living arrangement between two unmarried persons where one partner supports the other in return for the other performing domestic duties (housekeeping, travel companion, taking care of children and home, participating in household decisions, etc.). The courts treat domestic partners just as they would any unmarried person living together.

TIP: Agreements based on one person providing sexual favors to another (a man and his mistress, for example) are always invalid. This is known as “meretricious consideration” – where sexual acts form an inseparable part of the consideration for the agreement.

Requirements

Anyone who meets the eligibility requirements for marriage may register a domestic partnership. Thus, at a minimum, the partners must be 18 years of age, unmarried and unrelated. Additionally, the persons wishing to register must state that they:

  • intend to live together;
  • are each other’s sole domestic partner; and
  • are in a committed and mutual relationship.

What are the benefits to registering a domestic partnership?

While domestic partner status does not convey the same rights and benefits as those given to a spouse, a domestic partner may be named as a beneficiary in a health insurance policy and may qualify for family leave benefits.

TIP: For an updated list of cities and employers that recognize domestic partnerships, check the Worklife section of the Human Rights Campaign Organization at www.hrc.org.

TIP: Some employers require a signed affidavit and proof of a joint residence before benefits can be obtained.

Where do we register a domestic partnership?

In cities that permit domestic partnerships, registration takes place at the county or city clerk’s office.

Do we both have to be present to register?

Yes. As with marriage license applications, you are both required to be present before the clerk and sign an affidavit or certification that you meet the requirements for a domestic partnership.

What documents do we need to bring with us?

You are required to bring picture identification, such as a driver’s license, along with a birth certificate.

Is there any way to keep our domestic partnership confidential?

Yes. You may not be required to actually file the certification with the clerk. Instead, you will retain the original certificate that has been signed and notarized by the clerk.

TIP: If your domestic partnership is filed with the clerk, it becomes public record. Any member of the public will be able to access your names, dates of birth, date of registering, and certificate number.

How do we dissolve a domestic partnership?

You must complete and file a termination form stating the partnership has ended. If a domestic partnership certification was filed with the clerk, the termination form should be filed with the clerk as well.

Do both partners have to sign the termination form?

No. One of you may complete and sign the form. The signed form should be given or mailed to your partner.

SIDEBAR: If the non-signing partner is uncooperative, the partner terminating the relationship must show that he or she attempted to notify the ex-partner of the termination.

TIP: A copy of the signed and file-marked, if applicable, termination notice should be sent to your ex-partner by United States certified mail, return receipt requested. Your return receipt card will be evidence that you notified or attempted to notify your ex-partner that you terminated the domestic partnership.

If we register our domestic partnership, have we created a common law marriage?

No, a common law marriage is not created unless all the requirements are met in a state that recognizes such marriages.

SIDEBAR: A same-sex domestic partnership cannot become a common law marriage since same-sex marriages are typically not recognized, and even banned in some states.

California “Domestic Partner Rights And Responsibilities Act Of 2003”

A law giving registered domestic partners “spousal” status was recently enacted in California and became effective on January 1, 2005. The Domestic Partner Rights and Responsibilities Act applies to domestic partners who are prohibited from marrying. Since same sex couples are prohibited from marrying in California, gay couples are covered under the Act and have the same rights and duties as married couples. (Marriage is defined under California law as being solely between a man and a woman.)

SIDEBAR: Hawaii allows any two adults who are legally prohibited from marrying to enter into a “reciprocal beneficiary” relationship which gives the couple selective rights and benefits.

We are registered domestic partners in California. Can we enter into an agreement so we are not covered under the Domestic Partner Rights and Responsibilities Act?

Yes. Just as married couples can enter into prenuptial agreements that supersede California law regarding spousal rights, the two of you can enter into a pre-partnership agreement. Your agreement can direct distribution of property, right to and the amount of support, and provide for “step-ups” in support and property rights. If the agreement is validly executed, the provisions of the Act will not control property and support issues (or anything else you cover in the agreement) when the relationship ends.

Does a pre-partnership agreement have different requirements than a prenuptial agreement?

No. The pre-partnership agreement must be in writing and signed by both partners who, ideally, have consulted with their own attorneys. The agreement must be fair and not place one of the partners in circumstances where he or she must rely on public assistance at the termination of the relationship.