Date: Thu, 30 Jan 1997 12:46:07 -1000 From: lambda@aloha.net (Martin Rice) Subject: HAWAI`I SENATE BILL 795 Aloha awakea kakou. This is a reintroduction of the 1996 Senate Domestic Partnership bill. THE SENATE S.B. NO. 795 NINETEENTH LEGtSLATURE, 1997 STATE OF HAWAI`I A BILL FOR AN ACT RELATING TO DOMESTIC PARTNERSHIPS. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAI`I: 1 SECTION 1. The legislature finds that the law on marriage 2 is restricted to those personal relationships between couples of 3 the opposite gender. While the legislature believes that a 4 marriage can exist only between a man and a woman, that such a S marriage is the most beneficial to the social and family 6 structure, and that the institution of marriage is traditionally 7 thought of as a special relationship which exists between members 8 of the opposite gender, the legislature believes that other forms 9 of personal relationships exist and can be recognized in a way 10 which does not infringe on those long standing cultural and 11 traditional concepts of marriage. The legislature finds and l2 declares that: 13 (1) Domestic partners live together in the context of a 14 committed family relationship. However, they are often 15 denied public and private benefits, because they cannot 16 provide state certified proof of their relationship; 17 (2) Domestic partners comprise a percentage of households 18 within this jurisdiction that is not insignificant. 19 Domestic partners are often subject to marital status Page 2 S.B. 795 1 discrimination in employment, housing, and public 2 accommodations, The enactment of this registration law 3 is to eliminate this discrirnination; and 4 (3} It is in the public interest to act "with all 5 deliberate speed" in response to the constitutional 6 concerns expre8sed by the state supreme court in *Baehr 7 v. Lewin*, 74 Haw. 530 (1993). 8 SECTION 2. The purpose of this Act is to provide for state 9 recognition of persons of the same gender who choose to enter lO into domestic partnerships in order to share their lives as l1 members of each other's immediate family and to establish a l2 statutory mechanism for the identification of the specific l3 benefits and obligations which are conferred in domestic 14 partnerships. 15 At the same time, the legislature recognizes that many l6 complex issues surround the statutory recognition of domestic l7 partners. One issue involves child custody and adoption. The 18 legisiature finds that all things being equal, children, are best l9 raised by their biological parents. Therefore, this Act has 2O limited the authorization of domestic partners in child custody 21 and adoption issues until such time that the State is able to 22 deliberate on the issues surrounding child rearing by domestic 23 partners, Page 3 S.B. No. 795 1 The legislature is also mindful of its jurisdiction and the 2 issues surrounding the full faith and credit provision of the 3 United States Constitution. In order to avoid appearing to 4 regulate the internal affairs of another state, the legislature S believes that domestic partnership recognition should be limited 6 to state residents. 7 The purpose of this Act is therefore to recognize and 8 regulate the relationship that persons of the same gender may 9 have with one another, without infringing in any way on the lO traditional concepts of marriage or with the rights, benefits, 11 and status of married people. Moreover, although this Act is l2 limited to members of the same gender, this Act is not intended l3 to violate the rights of opposite gender couples who desire to l4 enter into a domestic partnership, since opposite gender couples 15 retain the right of marriage itself under chapter 572, Hawai`i 16 Revised Statutes. 17 SECTION 3. The Hawai`i Revised Statutes is amended by adding 18 a new chapter to be appropriately designated and to read as 19 follows: 20 "CHAPTER 21 DOMESTIC PARTNERSHIPS 22
____-1 Title. This chapter shall be known as the Domestic 23 Partnership Act. Page 4 S.B. No. 795 1
____-2 Definitions. For the purposes of this chapter: 2 "basic living expenses" means basic food and shelter. It 3 includes any other cost, such as medical care, if some or all of 4 the cost is paid as a benefit to one or both partners because 5 they have registered as domestic partners under this section. 6 "Declaration of domestic partnership" means a statement in a 7 form issued by the director that declares the intent of two 8 people to enter into a valid domestic partnership contract. By 9 signing it, two people swear under penalty of perjury that they lO meet the requirements for a valid domestic partnership contract. 11 "Department" means the department of health 12 "Director" means the director of health. 13 "Domestic partners" means two adults who are parties to a l4 valid domestic partnership contract and meet the requisites for a l5 valid domestic partnership contract as defined in section____-3. 16 "Domestic partnership" means a voluntary, written personal l7 undertaking, filed with the state of registration, by adults to 18 cohabit as a family, subject to the provisions of law. 19 "Joint responsibility" means that each partner agrees to 2O provide for the other's basic living expenses while the domestic 2l partnership is in effect if the partner is unable to provide for 2l himself or herself. It does not mean that the partners need 23 contribute equally or jointly to basic living expenses. Anyone Page 5 S.B. No. 795 1 to whom these expenses are owed may enforce the responsibilities 2 established by this chapter. 3
____-3 Requisites of a valid domestic partnership contract. 4 In order to make a valid domestic partnership contract it shall 5 be necessary that the parties: 6 (1) Reside in the same household; 7 (2) Consider themselves to be members of each other's 8 immediate family; 9 (3) Agree to be jointly responsible for each other's basic 10 living expenses; 11 (4) Agree to assume the rights and obligations specified in 12 section____-6; 13 (5) Neither be married nor a member of another domestic 14 partnership; 15 (6) Not be related by blood in a way that would prevent 16 them from being married to each other under chapter 17 572; 18 (7) Each be at least eighteen years old; 19 (8) Be of the same gender, one of whom has been a resident 20 of the State for at least twelve consecutive months 21 preceding the date of application for domestic 22 partnership; 23 (9) Each be competent to enter into a contract; and Page 6 S.B. No. 795 1 (10) Each sign a declaration of domestic partnership as 2 provided for in section___-5. 3
____-4 Domestic partnership certificates; agent to grant; 4 fee. (a) The department shall appoint, and at its pleasure 5 remove, one or more suitable persons as agents authorized to 6 issue domestic partnership certificates under this chapter in 7 each judicial circuit to persons meeting the requirements for 8 registration under section____-5. The agents may issue 9 certificates from any state facility when deemed necessary by the lO director. Any agent appointed under this subsection and 11 receiving an application for a domestic partnership certificate l2 shall collect from the applicant $____, of which the agent, l3 except those provided for in subsection (b), shall retain $____ l4 for the agent's benefit and compensation and shall remit $____ to 15 the director of finance. 16 (b) The department may appoint as regular employees under l7 the civil service and classification laws the number of suitable 18 persons as agents authorized to grant domestic partnership l9 certificates for whom provision has been made in the general 2O appropriation act. In the case of the agents, the full amount 21 collected from applicants shall be remitted to the director of 22 finance as a general realization of the State. Page 7 S.B. No. 795 1 (c) Every agent appointed under this section may administer 2 the oaths required by this chapter to be taken. 3 (d) The department or its authorized agent shall furnish to 4 each applicant for a domestic partnership certificate, 5 information related to venereal diseases, contraceptives, fetal 6 alcohol and drug syndroraes, and acquired immune deficiency 7 syndrome (AIDS), including the availability of anonymous testing 8 for HIV infection at alternate test site; provided that the 9 information is available. 10
____-5 Application; certificate; ijaitations. To secure a 11 certificate to become domestic partners, the persons applying for 12 the certificate shall appear personally before an agent 13 authorized to register domestic partnerships and shall file with l4 the agent an application in writing. The application shall be 15 accompanied by a declaration of domestic partnership signed and l6 sworn to by each of the persons certifying that they meet the l7 criteria set out in section____-3 and setting forth for each 18 person: 19 (1) Full name; 20 (2) Date of birth; 21 (3) Length of residency in Hawai`i; 22 (4) Full names of parents; Page 8 S.B. No. 795 1 (5) That all prior marriages and domestic partnerships, if 2 any, have been dissolved by death or dissolution; 3 (6) If either party has had a prior marriage or domestic 4 partnership, the date of death of the last prior spouse 5 or domestic partner, or date and jurisdiction in which 6 the last decree of dissolution was entered; and 7 (7) Any other information consistent with the standard 8 marriage license as recommended by the Public Health 9 Service, National Center for Health Statistics, may be 10 requested for statistical or other purpose subject to 11 the approval of and modification by the department; 12 provided that the information shall be provided at the 13 option of the applicant and no applicant shall be 14 denied registration for failure to provide the 15 information. 16 The agent shall endorse on the application, over the agent's 17 signature, the date of the filing thereof and shall issue a 18 certificate which shall bear on its face the date of issuance. l9 Every certificate shall be of full force and effect. 20 It shall be the duty of every person, legally authorized to 21 grant certificates for domestic partnerships, to promptly report 22 the issuance of every domestic partnership certificate to the 23 agent of the department in the district in which the certificate Page 9 S.B. No. 795 1 is issued, setting forth all facts required to be stated in such 2 manner and on such form as the department may prescribe. 3
____-6 Rights and obligations. Upon the issuance of a 4 certificate of domestic partnership, the parties named in the 5 certificate shall have the same rights and obligations under the 6 law that are conferred on spouses in a marriage relationship 7 under chapter 572. A "domestic partner" shall be included in any S definition or use of the terms "spouse", "family", "immediate 9 family", or "dependent" as those terms are used throughout the l0 laws of the State of Hawai`i and rules adopted pursuant thereto. 11
____-7 Limitations. The registered domestic partner of a l2 parent of a child shall not: 13 (1) Be entitled to the legal rights, duties, and 14 responsibilities of the natural father or mother, 15 unless those legal rights, duties, and responsibilities 16 have been terminated by a court or surrendered by the 17 natural father or mother in an adoption proceeding; 18 (2) Gain any parental rights to the child except through 19 adoption; or 20 (3) Be considered the natural parent for the purpose of 21 filling out the birth certificate of the child. 22
____-8 Dissolution of domestic partnerships. (a) 23 Exclusive original jurisdiction in matters of dissolution of Page 2 S.B. No. 795 1 domestic partnerships, subject to appeal according to law, is 2 conferred upon the family court of the circuit in which the 3 applicant has been domiciled or has been physically present for a 4 continuous period of at least three months preceding the 5 application therefor. No termination of a domestic partnership 6 may be granted for any cause unless either party to the domestic 7 partnership has been domiciled or has been physically present in 8 the State for a continuous period of at least six months next 9 preceding the application therefor. 10 (b) The dissolution of domestic partnerships shall be 11 considered under all applicable laws governing the dissolution of l2 marriage under chapter 580, except that the family court, by l3 decree of nullity, may declare void the domestic partnership l4 certification for any of the following causes, existing at the l5 time of certification: 16 (1) The parties were not at least eighteen years of age; 17 (2) A partner has a living spouse or other domestic 18 partner; 19 (3) Consent of the domestic partnership of the party 20 applying for annulment was obtained by force, duress, 21 or fraud, and there has been no subsequent 22 cohabitation; or Page11 S.B. No. 795 1 (4) A party is mentally incapable to consent to the 2 domestic partnership agreement. 3 (c) Any final decree of dissolution of domestic partnership 4 issued by the court shall not be effective until at least six 5 months after the date of service of a copy of summons and 6 petition or the date of appearance which ever occurs first as 7 required by section 58O~45. 8
____-9 Records and fees The director shall keep a record 9 of all declarations. The director shall set the amount of the lO filing fee for declarations, but in no case shall the fee be l1 higher than the fee for a marriage license. The fees charged l2 shall cover the State's costs of administering this section. 13
____-10 Preemptlon. This chapter shall supersede any state l4 law or political subdivision ordinance to the contrary. 15
____-11 Private solemnization not required. Nothing in 16 this chapter shall be construed to require any religious l7 organization to solemnize a domestic partnership that does not 18 recognize a domestic partner relationship within its ideology; l9 provided that any rights and obligations of domestic partners are ZO not obstructed or violated. 21
____-12 Rules of construction. In construing this chapter, 22 the court may seek guidance from, but is not bound by, the laws Page 12 S.B. No. 795 l and principles governing marriage and annulment, divorce, and 2 dissolution of marriage." 3 SECTION 4. Section 368-1, Hawai`i Revised Statutes, is 4 amended to read as follows: 5 "
368~1 Purpose and intent. The legislature finds and 6 declares that the practice of discrimination because of race, 7 color, religion, age, sex, sexual orientation, marital status, 8 including domestic partnership, national origin, ancestry, or 9 disability in employment, housing, public accommodations, or lO access to services receiving state financial assistance is ll against public policy. It is the purpose of this chapter to l2 provide a mechanism which provides for a uniform procedure for 13 the enforcement of the State's discrimination laws. It is the 14 legislature's intent to preserve all existing rights and remedies 15 under such laws." 16 SECTION 5. Section 58O~45, Hawa`ii Revised Statutes, is l7 amended to read as follows: 18 "
58O~45 Decree. If after a full hearing, the court is of 19 the opinion that a divorce ought to be granted from the bonds of 2O matrimony, or that a dissolution of a domestic partnership ought 2l to be granted, a decree shall be signed, filed, and entered, 22 which shall take effect from and after such time as may be fixed 23 by the court in the decree. The court, in its discretion, may Page 13 S.B. No. 795 1 waive a hearing on an uncontested divorce complaint or petition 2 to dissolve a domestic partnership and admit proof by affidavit. 3 In case of a decree dissolving the bonds of matrimony, such time 4 so fixed shall not be more than one month from and after the date 5 of the decree[.]; provided that in the case of the dissolution of 6 domestic partnership the effective date of the decree of 7 dissolution shall be not less than six months from the date of 8 service of a copy of the summons and petition or the date of 9 appearance of the respondent, whichever occurs first." 10 SECTION 6. If any provision of this Act, or the application 11 thereof to any person or circumstance is held invalid, the 12 invalidity does not affect other provisions or applications of 13 the Act which can be given effect without the invalid provision 14 or application, and to this end the provistons of this Act are 15 severable. 16 SECTION 7. This Act does not affect rights and duties that l7 matured, penalties that were incurred, and proceedings that were l8 begun, before its effective date. 19 SECTION 8. Statutory material to be repealed is bracketed. ZO New statutory material is underscored. 21 SECTION 9. This Act shall take effect upon its approval. 22 23 INTRODUCED BY: Senator McCartney SB795 ~~pau~~ ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ "I think there is a world market for maybe five computers." --Thomas Watson, chairman of IBM, 1943 ~~~~~ Fred and Martin 24 years, yet strangers before the law ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~