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ALI’s Proposal on Dissolution of Domestic Partnerships Is a Logical Step Forward in the Evolution of Equal Rights for Unmarried Couples by Thomas F. Coleman, Esq.
What the ALI Proposal Does The American Law Institute has proposed that each state grant legal recognition to unmarried couples, regardless of the gender of the parties, in order to achieve the equitable distribution of property and the fair allocation of financial support upon dissolution these relationships. This recommendation is contained in Chapter Six of the "Principles of the Law of Family Dissolution" (herein "Family Dissolution Principles") adopted by the ALI in May 2000. Under Chapter Six, the dissolution of the relationship of "domestic partners" would be governed by the same general principles which the ALI report applies to the dissolution of marital relationships. In § 6.01, "domestic partners" are defined as "two persons of the same or opposite sex, not married to one another, who for a significant period of time share a primary residence and a life together as a couple" as determined by § 6.03. Without delving into the details of § 6.03 at this juncture, there are three legal avenues by which two people may be considered to be "domestic partners." The first set of criteria apply to two people who cohabit, function as common household, and who have a common child together, which means that each of them is the child’s legal parent or parent by estoppel. If such a couple lives together for a "cohabitation parenting period" as determined by a uniform rule of statewide application, the parties are considered to be domestic partners. The second set of criteria apply to two people who are not related to each other by blood or adoption and who do not have a common child. The law would create a rebuttable presumption that they are domestic partners if such a couple functions as a common household for a "cohabitation period" established by a uniform rule of statewide application. The presumption is rebuttable by evidence that the parties did not share a life together as a couple as determined by reference to all the circumstances, including: (a) statements made to third parties; (b) intermingling of finances; (c) economic interdependence; (d) collaborative living arrangements; (e) changes to individual lifestyles as a result of the relationship; (f) mutual acknowledgment of responsibilities toward each other; (g) intention of the parties to maintain a relationship qualitatively different from other relationships; (h) emotional or physical intimacy; (i) community reputation as a couple; (j) participation in a commitment ceremony or registration as domestic partners; (k) an attempt to enter a marriage with each other which is not legally recognized; (l) joint assumption of parental functions toward a child through procreation, adoption, or otherwise; and (m) maintenance of a common household. A third and different set of rules apply to two people who are related by blood or adoption. People so related are not precluded from being legally deemed domestic partners. However, the party asserting that a domestic partner relationship exists bears the burden of proving that the two of them shared a life together as a couple for a significant period of time, considering criteria (a) through (m) as described above. In sum, Chapter Six of the ALI Family Dissolution Principles acknowledges three different types of domestic partner relationships: (1) cohabitors who have a common child; (2) cohabitors without children who are not related by blood or adoption; and (3) blood relatives who share a life together for a significant period of time. The first type of relationship is conclusively deemed to be a domestic partnership if the relevant criteria are satisfied. The second may be deemed to be domestic partners through application of a rebuttable presumption dependent on satisfaction of the relevant criteria. The third are only considered to be domestic partners if there is affirmative proof that the relevant criteria have been satisfied. If two people meet the criteria required for a domestic partnership, Chapter Six of the ALI Family Dissolution Principles would create legal rights and obligations in only one legal context, namely, the dissolution of the relationship. By its express terms, Chapter Six "governs the financial claims of domestic partners against one another at the termination of their relationship." The chapter does not purport to grant domestic partners rights, or impose obligations on them as a couple, with respect to third parties. It does not require that the government or private companies treat them as spouses or as a family unit. Two purposes are served by applying the ALI Family Dissolution Principles to the termination of the relationship of domestic partners. The first is to ensure that the parties treat each other fairly in the resolution of financial disputes at the end of the relationship. The second is to make sure that one party does not unfairly and unnecessarily become a financial burden on society when the relationship is terminated. The rules governing financial disputes between spouses in a dissolution proceeding presumably serve the same two purposes. Therefore, it is logical that Chapter Six provides that "domestic partnership property" should be divided according to the principles set forth for the division of marital property at the termination of a marriage. It also is reasonable that Chapter Six provides that a domestic partner is entitled to "compensatory payments" such as alimony on the same basis as a spouse when a marital relationship terminates.
The Historical Context in Which the ALI Proposal Has Evolved The application of the ALI’s Family Dissolution Principles to domestic partners should not be evaluated outside of its historical and legal context. In reality, it is a logical step forward in the ongoing evolution of constitutional, contract, and family law. It is also a manifestation of institutional responses to growing political pressure and more favorable public opinion with respect to personal privacy, family diversity and marital status discrimination. Fifty years ago, a proposal such as this would have been unthinkable in polite society. Heterosexual cohabitors were considered immoral. Their relationships were often subject to criminal penalties through fornication statutes and anti-cohabitation laws. The children of unmarried cohabitors were labeled "bastards" who suffered legal disabilities as a result of the "sins" of the parents. Society placed homosexual cohabitors on an even lower legal and social level. Gays and lesbians were considered "sick, criminal, and sinful" – a triangle of stigmatization of sorts. The American Psychiatric Association branded homosexuality as a "mental illness." Sodomy statutes in all 50 states made homosexual conduct a felony even if practiced by consenting adults in private. All major organized religions considered homosexuality to be an "abomination." Then came the so-called "Wolfenden Report" in Great Britain in 1957, the "Report of the Committee on Homosexual Offences and Prostitution" named after its Chairman, Sir John Wolfenden. That report recommended that private sexual conduct between consenting adults no longer be subjected to criminal penalties. It was a modest, although then-controversial, proposal. The United States soon witnessed a similar recommendation when the American Law Institute released its "Model Penal Code." That comprehensive reform package proposed that all states decriminalize private sexual conduct between consenting adults. The proposal applied equally to heterosexual and homosexual conduct. In 1961, Illinois became the first jurisdiction in the United States to adopt this proposal. Today, the overwhelming majority of states respect the privacy rights of consenting adults. Much of this reform was premised on the theory that the Constitution protects the freedom of intimate association. Equally as important as legal reform is the fact that public opinion also has changed. Today, only a small segment of the public would want to "turn back the clock" by criminalizing private acts of sodomy or fornication of consenting adults. The average citizen does not want the government snooping into his or her bedroom behavior. The second side of the "stigmatization triangle" was challenged when the so-called "Hooker Report" was published by the National Institute of Mental Health in 1969. The report was named after its Chairwoman, Dr. Evelyn Hooker, a research psychologist at the University of California at Los Angeles. The Final Report of the National Institute of Mental Health Task Force on Homosexuality suggested that homosexuality should no longer be considered a mental illness. On April 8, 1974, the American Psychiatric Association adopted that recommendation and removed homosexuality from its list of mental disorders. "Psychiatric Justice: A Split Personality Within the Profession," Sexual Law Reporter, Vol. 1, No. 4 (1975), p. 32. The third and final side of the "stigmatization triangle" has all but been dismantled, even though many churches continue to espouse – at least officially – that unmarried heterosexual cohabitation and homosexual relationships are sinful. However, over the years, many churches have come to view these relationships in a more tolerant light. Even more significant is the change in public opinion on this score, with a majority of Americans finding unmarried cohabitation acceptable and favoring equal rights for gays and lesbians. Furthermore, the adage that "actions speak louder than words" is dramatized by the fact that most adults today cohabit prior to marrying. It should be underscored that the removal of the official stigmatization of unmarried cohabitation was only the first phase of the historical progression of the legal status of domestic partners. The judiciary played a pivotal role in the next stage of development. An accepted axiom in American jurisprudence has always been that courts will not enforce contracts which are illegal or otherwise contrary to public policy. This legal principle was routinely applied by judges to the dissolution of nonmarital relationships. Since such couples generally had an ongoing sexual relationship, and since such conduct was deemed criminal or immoral, most judges would routinely dismiss a cohabitor’s financial claim against a former domestic partner. Since the claimant was deemed to have "unclean hands," judges would not use their equitable powers to prevent one partner from taking advantage of the other. Judicial views on this score began to change when the California Supreme Court issued its landmark decision in Marvin v. Marvin, 18 Cal.3d 660, 557 P.2d 106 (1976). Although the court declined to apply family law principles or allow the parties to adjudicate their claims in family court, it nonetheless ruled that principles of contract law and equity jurisprudence would govern disputes between cohabitors filed in an ordinary civil action. Justice Matthew Tobriner, writing for the court, prefaced the opinion by noting that "[d]uring the past 15 years, there has been a substantial increase in the number of couples living together without marrying." Marvin, supra, 18 Cal.3d, at p. 665. He observed that census figures showed that in 1970 eight times as many couples were living together out of wedlock as cohabited in 1960. Ibid. The California Supreme Court said that it wanted to harmonize law and reality, explaining:
The court concluded that because "[t]he mores of society have indeed changed so radically in regard to cohabitation," that it could not "impose a standard based on alleged moral considerations that have apparently been abandoned by so many." Marvin, supra, 18 Cal.3d, at p. 684. As a result, the plaintiff was given permission to proceed in the trial court with an action for breach of contract and to seek equitable remedies as well. The fact that cohabiting couples were unmarried would no longer bar judicial relief when such a relationship terminated. It was not long after the Marvin decision that the New York Court of Appeals reached a similar conclusion in Morone v. Morone, 50 N.Y.2d 481, 407 N.E.2d 438 (1980). The court went out of its way to emphasize that judges should not "hold their noses," so to speak, when they adjudicated disputes between cohabitors who had separated. Referring to prior judicial decisions involving unmarried couples, the court stated:
The only major legal distinction between the ruling in Morone and that in Marvin was that the New York Court of Appeal was unwilling to allow cohabitors to sue under an theory of implied contract as the California Supreme Court had done. The court felt that judges should not construct a contract for the parties if they did not ever expressly reach an agreement either verbally or in writing. Courts in other jurisdictions have adopted the New York view. Tampley v. Tampley, 449 A.2d 1218 (1982). With the two largest states in the nation recognizing that unmarried couples were entitled to have their agreements enforced in court upon dissolution of the relationship, it was not long before courts in most states adopted a similar position. But not all judges have walked lockstep to recognize domestic partnership rights. The Supreme Court of Illinois, for example, has adhered to the old view, finding that to adopt the reasoning of Marvin would be tantamount to resurrecting the doctrine of common law marriage which the Illinois Legislature had abolished. Hewitt v. Hewitt, 77 Ill. 49, 394 N.E.2d 1204. Some courts have applied Marvin to same-sex relationships. Whorton v. Dillingham, 202 Cal.App.2d 447, 248 Cal.Rptr. 405 (1988); Bramlett v. Selman, 268 Ark. 457. Denying relief to same-sex couples in jurisdictions where such relief is afforded to opposite-sex unmarried couples would raise serious equal protection problems. In the 1980s, some courts began to move beyond contract law by recognizing that, at least in some contexts, unmarried adults could be considered a "family" even though the parties were not related by traditional ties of blood, marriage, or adoption. For example, the California Supreme Court ruled that a group of unmarried adults had a constitutional right to live together as an "alternate family" in an area zoned for "single family" use. City of Santa Barbara v. Adamson, 27 Cal.3d 123, 610 P.2d 436 (1980). The New York Court of Appeal held that when the term "family" is used in a statute without definition, the term may include persons who are living together and functioning as a family unit even though they are not related by blood, marriage, or adoption. Braschi v. Stahl Associates, 543 N.E.2d 49 (1989). In Braschi, the court ruled that the survivor of a long-term gay relationship could be considered a surviving family member for purposes of entitlement to continue as a tenant in a rent-controlled apartment. The same year that Braschi was decided, historian Stephanie Coontz wrote an article about the political battle over the definition of the term "family." She stressed that "[h]istorically and cross-culturally, there is no such thing as "the family." Coontz, "The Family Has Many Definitions," The Christian Science Monitor, February 27, 1989. She observed that "[d]ifferent groups in America have constructed and sanctioned distinctive families, and many have learned to their sorrow what happens when another group’s concept of ‘the family’ is institutionalized in public policy or elevated to a cultural ideal." Ibid. While cases such a Braschi recognizing unmarried couples as a "family" often have gained national media attention, the fanfare has been legally unwarranted since such a conclusion is well grounded in American jurisprudence. The term "family" comes from the Latin word "familia" which in Roman and Spanish law was not limited to persons related by blood or marriage, but included all members of a common household. "Family," Corpus Juris Secundum, at p. 935. Although ABC’s "Nightline" television program made Braschi appear to be a groundbreaking decision, legal historians would know better. More than 80 years ago, the California Supreme Court recognized this principle when it acknowledged that:
The next phase of the evolution of domestic partner rights – with its advent in the late 1970s and early 1980s – has involved workplace benefits. The first advances were made in the context of worker’s compensation survivor benefits. The Louisiana Supreme Court ruled that an unmarried cohabitant who lives with and is partially dependent on an employee may recover worker’s compensation survivor benefits when the employee dies from a work related injury. Henderson v. Travelers Ins. Co., 354 So.2d 1031 (1978). California courts reached the same conclusion the following year. Dept. of Industrial Rel. v. Worker’s Comp. Bd., 156 Cal.Rptr. 183 (1979). Some courts have also extended unemployment benefits to an unmarried cohabitant who quits work to move with her partner who has been relocated by his employer to another location. Reep v. Commissioner, 593 N.E.2d 1297 (Mass. 1992); MacGregor v. Unemployment Insurance Appeals Bd., 37 Cal.3d 453, 689 P.2d 453 (1984). The first court case to employ the term "domestic partners" involved a lawsuit by an employee when his employer refused to grant him paid bereavement leave after his long-time partner died. Brinkin v. Southern Pacific Transportation Co., 572 F.Supp. 236 (1983). The following year, the City of Berkeley was the first municipality in the nation to specifically extend health and dental benefits to the "domestic partners" of city employees. In the ensuing 16 years, dozens of other cities and counties in the nation have done the same. Many of these public benefits programs have been challenged in court by political opponents of domestic partner rights. Some, such as those in Boston and Minneapolis, have been invalidated by judges on the theory that the municipality needed express legislative authorization from the state. Lilly v. City of Minneapolis, 527 N.W.2d 107 (Minn. 1995). Those is most other cities, such as Atlanta, have survived judicial review. Morgan v. City of Atlanta, __ S.E.2d __, 1997 WL 677314 (Ga. 1997). A few municipalities, such as Seattle, Los Angeles, and San Francisco have city contractor nondiscrimination laws which require companies contracting with the city to offer domestic partner benefits to their own employees as a condition of doing business with the city. A few state governments, such as New York, Oregon, Vermont, California, Connecticut, and Washington provide such benefits to the domestic partners of state workers. The latter two are limited to same-sex couples. California is unique in that its benefits program is open to same-sex couples of any adult age and opposite-sex couples if both parties are over the age of 62. In the private sector, more than 3,000 employers now provide domestic partner benefits. Most offer the benefits to same-sex and opposite-sex partners, although a significant number (35%) limit them to gay and lesbian couples on the theory that they cannot attain the benefits through marriage. WorkNet, Report of the Human Rights Campaign (2000). Domestic partner registries are also springing up in dozens of municipalities throughout the nation, including New York, Atlanta, San Francisco, Denver, Milwaukee, and Seattle. None of these registries has been judicially invalidated. In the case of Atlanta, the state Supreme Court specifically upheld the authority of the city to create such a registry. City of Atlanta v. McKinney, 454 S.E.2d 517 (Ga. 1995). These domestic partner registries are mostly symbolic, conferring few benefits and protections on the registrants. Most provide for the right to hospital visitation when one partner is incapacitated. California is the only jurisdiction with a statewide registry for domestic partners. At present, the only tangible benefit is hospital visitation rights. However, a bill is pending (AB 25) in the Legislature to grant several major legal protections to registered partners. Specifically, under this bill, domestic partners would be entitled to:
AB 25 also would expand the definition of "domestic partners" to allow opposite_sex couples to register as domestic partners if either one or both partners are over the age of 62. Under the current domestic partnership registry, in order for a heterosexual couple to register, both partners must be over 62. Attempts to create a "comprehensive domestic partnership" law which would apply to both same-sex and opposite-sex unmarried couples – granting such registered partners virtually the same rights as married couples – have failed to pass in the three states in which they have been introduced. Senate Bill 3113 was passed by the Hawaii Senate in 1996, but died when the House of Representatives failed to bring the measure to a vote on the floor. The following year, a law granting "reciprocal beneficiaries" some limited rights and protections was passed by the Legislature and signed into law by the Governor. Only same-sex couples and blood relatives were authorized to register as "reciprocal beneficiaries" with the state. Unmarried opposite-sex couples were not included in the law. A "comprehensive domestic partnership act" was introduced in Vermont in December 1999. SB 248 did not receive a committee hearing. Instead, in April 2000, the Legislature passed a different measure crafted by the House Judiciary Committee. It allows same-sex couples to enter into a "civil union" which for purposes of Vermont state law grants such couples virtually the same benefits and imposes the same obligations as marriage does under state law. Couples who enter into a civil union are required to dissolve the relationship in the same courts and through the same type of proceedings as that used to terminate relationships of heterosexual married couples. Another law which was passed by the Vermont Legislature during the same session grants some limited rights and protections to blood relatives who register as "reciprocal beneficiaries." Such relationships may be terminated with a written statement signed by one of the parties and filed with the state. Like Hawaii, the Vermont Legislature chose to exclude unmarried heterosexual couples from these laws, thereby requiring them to marry in order to gain similar legal protections. A bill to create a "comprehensive domestic partnership act" was introduced in the Wisconsin Legislature in 2000. AB 608 died after it did not receive a hearing in committee. Other domestic partnership bills, granting unmarried couples more limited benefits and protections have been introduced in recent years in state Legislatures in Washington, Rhode Island, New York, New Hampshire, Massachusetts, Florida, and Arizona. Given the momentum of the political movement for domestic partnership rights, and given the scope of many of these legislative proposals, and considering the legal rights judicially extended in many states to unmarried couples, the ALI Family Dissolution Principles seem moderate by comparison.
Who Would Benefit from the ALI Proposal The public, the legal community, and unmarrieed couples, all would benefit if the "Domestic Partners" section of the ALI Family Dissolution Principles were enacted into law by each state. We currently have a patchwork of legal protections, available in some states and not in others, regulating the dissolution of nonmarital relationships. This type of a "hodge-podge" approach to the administration of justice is not helpful. The public would benefit if each state in the nation were to adopt a uniform set of rules governing financial disputes when unmarried couples terminate their relationships. There would be more settlements and less litigation if there were a specific set of rules governing all long-term relationships. Fewer contested lawsuits would result in significant tax savings to the public. Lawyers would benefit from such reform because there would be a clear set of rules that would apply to disputes between domestic partners. They could give better advice to clients who live in such relationships, with respect to creating cohabitation agreements in advance as well as settling disputes when the relationship terminates. Legal clarity is always helpful to legal practitioners. Lawmakers are already benefitting from the mere existence of the Family Dissolution Principles. By the time these principles are introduced into a state legislature as a specific bill, they will have been analyzed and debated not only by the ALI itself, but also by academic conferences such as this symposium at Brigham Young University. Such advance study and commentary is helpful to the legislative process. Of course, a significant segment of the public, namely, domestic partners, will benefit if Section Six of the ALI Family Dissolution Principles are enacted into law. Regardless of one’s religious or political views on the subject, unmarried cohabitation is a fact of life. Some six million unmarried couples currently live together. Of these, about 70 percent are heterosexual couples and 30 percent are same-sex couples. Cohabitors should not be stereotyped as younger "swinging singles" who lead carefree lifestyles. About 38 percent of unmarried heterosexual couples are raising a child. Many cohabiting couples are middle aged or older. Unmarried couples older than 45 are the fastest growing type of household in the nation, according to a new report from the United States Census Bureau. Decker, "The Cost of Living is Pushing Florida Seniors to Share a Roof," Christian Science Monitor, October 12, 1995. It is no accident that the American Association for Retired Persons now offers domestic partner benefits to its employees. It is also no coincidence that AARP published a report in 1995 about the increasing number of seniors living in so-called "nontraditional" households. Deborah Chalfie, "The Real Golden Girls: The Prevalence and Policy Treatment of Midlife and Older People Living in Nontraditional Households," Office of Special Activities, AARP (1995). Like it or not, domestic partners are now a permanent part of the landscape of American families. The American Law Institute should be commended for including this segment of the population in its Family Dissolution Principles. The administration of justice should not depend on marital status when financial disputes arise between family partners in a dissolution proceeding. The principles contained in Chapter Six go a long way to insuring "equal justice under law" for everyone, regardless of marital or family status.
Questions Left Unanswered by the ALI Proposals The American Law Institute’s Family Dissolution Principles are commendable because they are nondiscriminatory, applying to all long-term family relationships regardless of the gender, sexual orientation, or marital status of the parties. Chapter Six is visionary because it recognizes three possible classes of domestic partners, each of which should be governed by a slightly different set of rules. Those couples who have a common child fall into one category. Those unrelated adults without children and who have an intimate relationship fall into another. Unlike many other proposals pertaining to domestic partners, the ALI model does not leave blood relatives totally out of the picture. It recognizes that two people related by blood may have formed a long-term relationship which should be governed by some legal standards to resolve disputes which may arise when the parties cease to live together in a common household. But as inclusive and visionary as the Family Dissolution Principles may be when it comes to domestic partner relationships, there are several loopholes and gaps which should be addressed. Section Six states that its principles apply to domestic partner relationships when they terminate. Dissolution can occur in one of two ways: separation or death. Does the ALI propose that these same principles should apply when a financial dispute arises after termination of the relationship due to the death of one of the partners? This question is not addressed. This writer sees no reason why they should not apply to Probate proceedings as well as Dissolution proceedings. Section Six suggests that the same principles applicable to marital dissolution proceedings should apply to long-term domestic partnerships when unmarried couples separate. This seems fair. Married couples are entitled to file suit in family court to dissolve their relationships. These proceedings are expedited. The parties are not entitled to a jury trial, which in many states, could involve delays in ordinary civil courts of several years. Palimony suits in California, for example, under Marvin v. Marvin, must be filed in civil court, not in family court. Either litigant can demand a jury trial. Civil court judges may not be well versed in family law or relationship dynamics. Does Section Six require that domestic partners be allowed to file suit in family court, have expedited proceedings, and a court trial rather than a jury trial? This question is left unanswered. Many states, such as California, allow or require marital partners to participate in conciliation proceedings before ending the relationship. Does Section Six contemplate that courts should try to salvage domestic partnerships before terminating them? This is another question looming in the background.
Conclusion Despite some of these unanswered questions, the adoption of Section Six of the ALI’s Family Dissolution Principles is a major step forward in American jurisprudence. It addresses the needs of millions of Americans. It is practical and consistent with demographic realities. It is fair and equitable, allowing those who wish to "opt out" of these rules the right to do so by forming contracts more to their liking. Section Six is a logical step forward in the evolution of domestic partner rights in the United States. It does not impede on the religious rights or moral beliefs of anyone, but recognizes that the doctrine of "separation of church and state" requires that secular laws governing dissolution of relationships should be applied in a fair and nondiscriminatory manner. The American Law Institute should be commended for adopting these principles. They should be enacted into law in every state.
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