By JODI SUMMERS
One small step for California, one giant leap for South Africa. Earlier this month, as Gov. Arnold Schwarzenegger signed a bill allowing gay couples to file joint state tax returns, South Africa became the first African nation to give legal recognition to same-sex partnerships.
South Africa’s high court ruled that existing marriage legislation discriminated against same-sex couples. Trying to right previous wrongs, South Africa’s constitution is the first in the world to prohibit discrimination on the basis of sexual orientation.
In 1989, Denmark became the first country to legislate for same-sex partnerships. Several other European Union members have followed suit, including Germany, the United Kingdom and Spain. The Netherlands became the first country to allow full civil marriage rights in 2001. Canada, Argentina and New Zealand have all introduced various gay marriage laws.
In the United States, only the state of Massachusetts, allows same-sex couples to marry. Those marriages aren’t recognized by other states, and Massachusetts law prohibits non-residents from seeking marriage licenses there. California, along with Vermont, Connecticut, New Jersey, Hawaii and Maine have established either civil unions or domestic partnership laws that provide many of the benefits of marriage to same-sex couples.
A change in the laws would mean a whole new approach to who gets to inherit property in a community property state. Community property, defined as “property accumulated through joint efforts of husband and wife and owned by them in equal shares.” Community property laws are very popular in many states, and much of the Western U.S.
A married person has the power to get divorced in their state of residence, regardless of where the marriage was celebrated. A married person has the right to seek property distribution under that state’s laws; the right to inherit even if their spouse dies without a will (intestate). They cannot be disinherited because they are entitled to a spousal share. A married person has the right to sue for wrongful death if their spouse dies as a result of medical or other negligence.
According to polls, the majority of Americans are against same-sex partnerships or marriages. North of the border, our brothers in Canada are far more progressive.
“When you get married in Canada, the law treats your marriage as an equal economic partnership,” observes Realty Times columnist P.J. Wade. “If your marriage ends, the value of property acquired during the marriage and the increase in value of any property brought into the marriage will usually be divided in half and shared between the spouses, regardless of who contributed more money or labour, or who is to blame for ending the relationship.”
California is a progressive state when it comes to gay marriage, allowing same-sex couples many of the rights and duties of marriage if they register with the state as domestic partners... but the state will not go all the way. In February 2004, San Francisco Mayor Gavin Newsom permitted officials to issue marriage licenses to gay and lesbian couples. A 2-to-1 decision by the 1st District Court of Appeals subsequently declared that same-sex marriages were unconstitutional.
Around 4,000 marriages became invalid. The most recent comment by our state appeals court ruled that state laws limiting marriage to heterosexual couples are constitutional and do not deprive gay or lesbian couples of a “vested fundamental right.”
Diplomatically, Gov. Schwarzenegger supported the election results of Proposition 22 (2000), which said: “Only marriage between a man and a woman is valid or recognized in California.”
While the U.S. grapples with the issue of gay marriage, should we reexamine common law marriages? A common law marriage is where there is mutual consent and a sharing of property, such as a joint checking account. The couple hold themselves out to others as being married and they have been together for a “significant time” (that length of time is not strictly defined).
In California, the precedent is the 1977 case of Marvin vs. Marvin, in which Michelle Marvin sued the actor Lee Marvin for what has come to be known as “palimo-ny.” She lost because the court found that during their cohabitation, she and Lee Marvin never agreed to combine their efforts and earnings or to share equally in any property accumulated as a result of their efforts.
Different states that allow common law marriage have different requirements. In addition, states are required to recognize common law marriages from other states.
Title insurance companies will not take a social position on the matter of gay or common law marriages. Title companies state that they are ultimately bound by state law. They will support instructions from the buyers as to the language of the vesting, except they will not vest as community property.
Insurance policies uphold that everyone on title is responsible for the entire mortgage, whether vested as joint tenants, community property or tenants in common.
Originally published in the Santa Monica Daily Press print edition on November 29, 2006. Read the original PDF.