Metropolitan News-Enterprise


Wednesday, September 13, 2006


Page 3


Court: Registration With State a Prerequisite to Petition in Family Court to Dissolve Domestic Partnership


By a MetNews Staff Writer


A women who registered with her partner as domestic partners with the county, but failed to register with the state, may not bring an action for dissolution of domestic partnership in family law court, the First District Court of Appeal ruled yesterday.

Div. One affirmed Mendocino County Superior Court Judge Eric L. Labowitz’s order striking Lena Velez’s petition for dissolution of her domestic partnership with Krista Smith.

Velez and Smith met in 1989 and began a relationship, the record showed. In 1994 and 1996 they filed declarations of domestic partnership with the City and County of San Francisco, the later time attending a public ceremony and receiving a domestic partnership ceremony certificate.

They acted and held themselves out as domestic partners, lived and purchased real property together, and purchased and shared personal property, including automobiles, pension benefits, insurance coverage and benefits and family pets. They were jointly responsible for household living expenses, and maintained joint bank accounts in which they commingled funds.

For a few years, after Velez became disabled with multiple sclerosis, Smith listed her as a dependent on tax returns. Velez was provided with health coverage by, and listed as an alternate payee of retirements benefits with, Smith’s employer, the San Francisco Fire Department.

But Smith and Velez never registered as domestic partners with the State of California.

In 2004 the relationship apparently soured and Smith filed a “Notice for Ending a Domestic Partnership” with the San Francisco county clerk, and sent a copy to Velez.

Velez responded by filing a petition for dissolution of domestic partnership in family law court, requesting dissolution of the domestic partnership, division of the accumulated partnership property, termination of jurisdiction to award support to Smith and consolidation with any related proceeding to determine the partnership rights of the parties.

Smith moved to strike the petition on the ground that the family law court lacked jurisdiction.  Labowitz found the petition to be “without legal basis,” and granted the motion.

On appeal Velez argued that she was entitled to proceed with her dissolution action under the Domestic Partnership Act which extended many of the rights and duties of marriage to persons registered as domestic partners. Velez argued that she and Smith acted as domestic partners and were registered as such with the City and County of San Francisco before the effective date of the Domestic Partner Act. She asserted that registration in accordance with state law is not a jurisdictional prerequisite to her dissolution action.

But Justice Douglas E. Swager, writing for the Court of Appeal and quoting prior case law, said:

 “The Legislature had granted domestic partners ‘legal recognition comparable to marriage both procedurally and in terms of the substantive rights and obligations granted to and imposed upon the partners,’ but only to ‘couples who meet the requirements of establishing a domestic partnership under the Domestic Partner Act and who have registered under that law.’”

Velez also argued that she had standing to proceed with the dissolution action as a “putative” domestic partner, based upon her good faith belief in the validity of her domestic partnership with Smith, and reliance upon it to maintain her healthcare benefits through Smith’s employer. Under the putative spouse doctrine, where a marriage is invalid due to a legal infirmity, an innocent party may be entitled to a declaration that the parties have the status of putative spouses, and may obtain a court-ordered division of property that would have been community property had the marriage been valid.

But Swager found that “the Legislature did not see fit to include” putative spouse provisions in the domestic partnership law.  Quoting prior case law, he said:

“Despite the most recent amendments to the domestic partnership laws, domestic partners are not in all respects treated the same as spouses. While the Domestic Partner Act expanded the rights and responsibilities of registered domestic partners, ‘the Legislature has not created a ‘marriage’ by another name or granted domestic partners a status equivalent to married spouses.’”

Justices William D. Stein and Sandra L. Margulies concurred in the opinion.

The case is Velez v. Smith, A110868.


Copyright 2006, Metropolitan News Company