Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Thursday, September 14, 2006

Case Law Development: California Domestic Partners must Register their Partnership to Benefit from Domestic Partner Act - No Putative Spouse Analogies Available

The California Court of Appeals reviewed a number of issues that arose in the context of an individual seeking to dissolve a domestic partnership who had not registered that partnership with the state.  The court affirmed the trial court's dismissal of the petition for dissolution of a domestic partnership and found that other claims arising out of the relationship must be brought in a separate civil action.

The couple in this action acted as domestic partners and twice registered as domestic partners with the City and County of San Francisco before the effective date of the California Domestic Partner Act.    The 2003 amendments to that acct provided that "Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses."

However, the couple here had never attempted to file the necessary declaration of domestic partnership with the Secretary of State pursuant to that statute. "Thus, when appellant's dissolution petition was filed, there was no valid domestic partnership to dissolve. Compliance with the provisions for formation of a valid domestic partnership is mandatory for two individuals seeking to obtain legal recognition of their union and receive the benefits afforded by the Domestic Partner Act in California. ....As with the provisions that govern entry into a valid marriage, without satisfaction of specified statutory requirements, no discretion exists to recognize a lawful domestic partnership."

While the court generally agreed with the petitioner that the Domestic Partner Act would be given retroactive application, it disagreed that plaintiff would be able to prevail under that theory because, "She essentially wants to receive the benefits of the amendments to the domestic partnership laws, but avoid the registration requirements and termination provisions of those same amendments."

Finally, the court rejected plaintiff's argument that she should be allowed to proceed with the dissolution action as a "putative" domestic partner. 

We conclude that the putative spouse doctrine does not save appellant's dissolution action. The Domestic Partner Act seeks to create "substantial legal equality between domestic partners and spouses," but nothing in the statutory scheme includes within the enumerated rights granted to domestic partners any form of putative spouse recognition.

The court emphasized that "Despite the most recent amendments to the domestic partnership laws, domestic partners are not in all respects treated the same as spouses. While the Domestic Partner Act expanded the rights and responsibilities of registered domestic partners, "the Legislature has not created a 'marriage' by another name or granted domestic partners a status equivalent to married spouses. In fact, domestic partners do not receive a number of marital rights and benefits." The court went on to list the many benefits and responsibilities that are available to married couples that do not apply for domestic partners.

The court concluded that any right the plaintiff wished to assert under Marvin v. Marvin must be brought in a civil action and could not be brought in family court.

Velez v. Smith,  2006 Cal. App. LEXIS 1375 (September 12, 2006)
Opinion on web (last visited September 13, 2006 bgf)

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