By Pamela Edwards-Swift, CFLS
As is the norm, with the upcoming presidential election, we are beginning to hear positions being taken on several different issues by the candidates. Domestic related issues are usually at the forefront during any election year. Usually, questions abound, not just about the economy, jobs, education, etc., but also, with regard as to what the candidates’ positions are on abortion and gay rights. So, not surprisingly, the month of May was consumed by President Obama’s statement that he supports gay marriage. Mitt Romney has stated his position that marriage is between a man and a woman.
Gay marriage has been a controversial subject for sometime now, especially in the state of California. In 2008, the California Supreme Court held that Family Code §308.5 (Proposition 22), was unconstitutional. Family Code §308.5 states, “(O)nly marriage between a man and a woman is valid or recognized in California.” Also, in 2008, Proposition 8 was passed into law by voters which modified the state Constitution so that it now provided only marriages between one man and one woman are valid and recognized in California. Essentially Proposition 8 supported Proposition 22. The difference was that Prop.22 modified the state law and Prop.8 modified the state Constitution, which now supported the statute as created in Prop.22. Are you sufficiently confused? The bottom line is that, for now (there is now a challenge on the Federal level), the law in California is that a valid marriage can only be between a man and a woman. This does not change the validity of those marriages performed during the brief period of time it was legal to do so.
Recently, someone commented to me that an acquaintance was now getting a divorce from their same sex spouse and had they not married during the time that gay marriage was legal in the state of California they would not now be having a legal battle to terminate the relationship. But, that is not necessarily true.
What few people know is that in the state of California a couple of the same sex has the ability to register their relationship with the Secretary of State. By doing so, they become registered domestic partners, a relationship recognized in California, but not by the federal government. According to Family Code §297, “(D)omestic partners are two adults who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring.” In order to qualify both persons must be members of the same sex or eligible for social security benefits.
(Yes, Grandma can live with her boyfriend and become a registered domestic partner). What is interesting, is to terminate the domestic relationship, for most couples, there has to be an actual court dissolution (divorce) proceeding. There are a lot of different rules which apply, but if you are in a same sex domestic relationship which is now ending, you may want to consult with a family law attorney to learn how to effectively terminate the relationship.
Pamela Edwards-Swift, Certified Family Law Specialist, 2010, 2011, 2012, 2013 & 2014; Southern California Super Lawyer