Bookmark and Share

A glimpse into the legalities shaping same-sex marriages

Society's definition of a family is beginning to become more inclusive of the array of diverse structures that are emerging, including single mothers, single fathers, and grandparents raising children. However, still today, lesbian or gay couples are rarely classified within the realm of a normal, functional family. On the other hand, lesbian and gay couples often consider themselves to be families. Throughout recent decades, same-sex couples have sought to attain societal recognition of their varied family structures. This all began in the early 1970s, when lesbian and gay couples began applying for marriage licenses or taking other steps to legally bind their relationship. Yet the majority of these inchoate efforts led to failure.

By the mid-1980s, the emphasis had changed to seeking "domestic partnership" recognition for same-sex couples instead of striving for the opportunity to marry, although there are still groups seeking to make marriage available to gays and lesbians in our society. Concurrently, the desire to marry has again emerged. Some couples are applying to the state for marriage licenses and suing their states when their requests are denied. Many others are participating in their own private ceremonies that are sanctioned by their friends, families and spiritual communities.

An interesting paradox reflects the fact that some within the lesbian and gay community foster a general ambiguity over the marriage issue. The community consists of a tremendous number of people of every conceivable age, race, religion, lifestyle, income and opinion. It is impossible to persuade such a diverse group of people to support an issue with all of their political weight. Some may argue that regardless of any individual's desire to get married, the community as a whole should support official recognition of their right to do so. Yet there are those who criticize marriage as a sexist and patriarchal institution that should be avoided. Some do not wish to risk any potential repercussions involved in supporting or absconding the marriage issue while others are simply ambivalent about what they believe.

What about marriage?

Marriages between two people of the same sex are currently legal only in Hawaii. In all other states, couples must be of the opposite sex in order to form a marriage that is legally bound. Recently, the state courts in Hawaii judged that the state's constitution prohibits denying a marriage license based on the sex of the applicants. This controversial decision was considered a milestone victory for gays and may pave the way for similar actions in other states.

Even though most states do not allow same-sex marriages, many companies and other organizations are adopting policies accepting same-sex relationships. Such policies range from fair housing regulations to granting traditional marital benefits, such as insurance coverage, to same-sex partners. Some cities have even created a "domestic partnership" category, as mentioned previously, for both gay and heterosexual couples who live together unmarried. Such laws provide some of the same legal rights for these couples as for married couples, such as health insurance coverage for the partner, family leave to care for the partner, bereavement leave, etc.


The living together contract…
A contract is, by definition, a general agreement to do or not do something. Marriage fits into this type of contractual relationship. Saying "I do" commits a couple to a set of state laws and rules governing, among other things, the couple's property rights if they split up. Unlike married couples, however, gay and lesbian couples do not automatically agree to any contractual agreement when they start a relationship. It is wise to then think about creating a contract when settling in with someone in order to facilitate an amicable break up, should one occur. Implementing a contract will help the couple figure out what is intended within the relationship and should, ideally, lessen any disagreements or misunderstandings even when things are going well. The following is an outline of some of the legal rules and practical concerns involved.

Legal rules surrounding living together contracts:
For the most part, courts and judges have made legal rules governing living together contracts. The leading court case involving this type of contractual agreement is titled Marvin v. Marvin, and involved the actor Lee Marvin and the woman he lived with, Michele Triola Marvin. (She used his last name even though they were not married.) As a result of this case, the California Supreme Court announced new legal principles involving the right of unmarried couples to make contracts. First, the court ruled that marital property laws do not apply to couples that are not legally married. The court then recognized that unmarried couples are a fundamental aspect of our society and are continually growing. As a result, contracts must now support four basic principles in order to be considered in any court decision:

Although the Marvin case only applies to decisions in California, other states have upheld similar applications of these principles to contracts made by gay or lesbian partners. Yet each court will follow different legal rules depending on the state within which it resides. Many states enforce contracts between gay and lesbian partners yet do so with restrictions, such as only accepting those contracts bound in writing.


When is a living together contract necessary?
If the terms of a relationship are constructed to be brief or if there are no assets involved, a contract is not necessary. Yet in a long-term and more serious type of relationship, whether the love and commitment to each other is fresh or it has been a 20 year adventure, the legal consequences surrounding gay or lesbian relationships should be considered. If plans exist to combine assets or share expenses, it is wise to put the agreement in writing, especially if significant amounts of money or property are involved. If the situation is different and there are little or no assets or property to consider, a contract can still be a benefit by planning out how to handle money and property when it arrives. Also, putting more emphasis on the practical issues of day-to-day living together will do much to pave the road to the long-term happiness that lies ahead.


What should be included?
A living together contract can cover every minute detail within the relationship, or it can be specific, covering only certain aspects. It is important to design the contract to say exactly what both parties involved desire. A simple and ultimately functional record using common wording works well to establish validity among the partners.

If, in creating this type of contract, the primary function is to include the specific daily details of the relationship, it is often good to make two separate agreements in order to reduce any ambiguity in the future. One should pertain only to property and finances so that if one person ever sues the other in court, the property and finance terms should be the only ones a judge ever sees. The second agreement should include the daily issues encountered by the couple, mapping out private details such as stating who will do the dishes, who will be in charge of yard work, etc. A court will usually refuse to uphold this kind of deeply personal agreement. As a result, if only one agreement is created that includes the personal as well as financial clauses, a court might get distracted by the personal clauses, declare the contract illegal, or choose to ignore the more important financial provisions.


Property and finances clauses
The living together agreement should cover all property, including the property owned before the beginning of the relationship as well as the property accumulated during it.

Making an agreement about the property brought into the relationship may seem unnecessary, but it's not. In the future, it may prove to be very difficult to think about trying to separate individual assets when the couple has spent the time of their relationship referring to everything jointly.

Many people will want to keep separate the property they inherit or receive by gift. Others will want to incorporate the property into the relationship. If something is given to both partners, the possession is thereby legally owned by both. This includes gifts received at any union ceremonies or anniversary parties, even if given by a relative or friend of just one partner.

Many people determine ownership based on who purchased the specific items utilizing the basic understanding that whoever makes the purchase controls the property. Other people pool everything they buy. Some items may be separately owned, some may be split in half, and some shared in proportion to how much money each contributed toward the cost of the item.

What about expenses incurred during the relationship?
At the onset of a relationship, it is a good idea to attempt to determine how each member of the couple will distinguish the boundaries surrounding the daily costs for food, bills, laundry, or similar issues, especially if expenses should go up or incomes go down. Some suggestions of how to share expenses within a relationship include:

Take a time-out!
A time-out period can help to remind the couple of the ultimate commitment should stress threaten the stability of the relationship. Although it's not always relevant judicially, it's a very efficient expression of intention. It can be as simple as stating that if one person wants to leave the relationship, they promise to take some time to cool off before making their absolute decision. A cooling off provision can break a monotonous situation, thereby providing extra time to try to mend the problems. For example, in the event that either person is seriously considering ending the relationship, that person must first take a break from the situation for a given period of time before coming to a final decision. If the decision entails breaking off the relationship, a little more time should be allowed to pass before property would be divided to ensure the conclusion is final. Another helpful item to include could be the prospect of counseling sessions, which should be attempted should one or both partners have a wish to try it out.

Around the globe…
Much attention has been given to same-sex marriages within the United States, leading many people to believe that America is on the verge of accepting and supporting this important and international civil rights movement. Ironically, this is not the case. While no country in the world gives same-sex couples the full protection granted to heterosexual couples, a number of countries have made significant provisions in their legal rhetoric, as depicted in the following list:
Belgium: Same-sex couples are entitled to inheritance rights through their legal discourses.
Canada: The Canadian Supreme Court has ruled that if certain protections are offered to spouses within heterosexual couples, they must also be offered to same-sex couples. Although the right to marry has been left undecided, a poll taken after the decision showed that the majority of Canadians support the right of same-sex couples to have legally recognized marriages.
Denmark: In 1989, Denmark became the first country to allow same-sex couples to form registered partnerships, which gives them status and benefits similar to those found within a marriage. Yet these registered couples are not granted the permission to adopt children.
France: Registered partnerships are allowed, which include tax benefits, public insurance and pension benefits, as well as inheritance and lease protections. In addition, any property that has been acquired together is considered jointly owned unless an agreement states otherwise.
Hungary: Same-sex couples are covered by the nation's common law marriage rules, yet do not have the right to register under Hungary's marriage law. They are entitled to some of the same rights, yet are not permitted to register for those rights legally. This leads to a rather ambiguous interpretation of advancement in this nation.
Iceland: Iceland's law allows same-sex couples to register their partnerships in order to receive many of the rights of marriage, with the exception of being able to adopt children.
Italy: Select cities, such as Pisa and Florence, permit couples within a same-sex relationship to register as domestic partners.
Netherlands: A nationwide partner registration law is in existence in this country. Registered same-sex couples receive all the rights of heterosexual married couples, including pension, social security, and inheritance rights.
Norway: Registered partnerships are permitted.
Spain: Many cities allow same-sex couples to register as domestic partners.
Sweden: Sweden's law allows same-sex couples to register their partnerships in order to receive many of the rights of marriage, but registered couples cannot adopt children.

Created April 6, 2003, last updated December 1, 2007