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This chapter covers the crucial core of domestic partnership policies -- the definition of the relationship.
The heart of any domestic partnership policy is its description of the relationship the partners have created. Four kinds of descriptions are used (some policies use just one, some use all four). First, some policies have very general descriptions of the kind of emotional commitment the partners have to each other, a "hearts and flowers" declaration. See 6.3, The "Hearts and Flowers" Declaration.
Second, some policies say domestic partners must meet the basic requirements, like age and consent, for marriage; the marriage requirements. See 6.4, The Marriage Requirements.
Third, some policies describe some tangible things many people who live together do (for example, having joint checking accounts or rent receipts in both names), and say two people must have some or all of them to be partners; the "couple requirements."
Finally, some policies have the partners make promises to each other that they will provide for each other in some way, the "obligations." See 6.8, Financial Obligations.
Some policies, particularly a few pure registration policies, have almost no definition beyond the hearts and flowers declaration. The theory behind them is that since the registration has no legal significance, people should be free to design whatever relationship they wish.
However, three forces usually require some requirements and some obligations.
First, the arguments being made for the policy will usually recommend some requirements and obligations. Equality arguments, for example, often lead to policies which require that the relationship have characteristics people think typical of marriage and obligations like those which married people assume.
Second, the politics of your campaign may dictate some requirements and obligations, both to gain supporters and to respond to the opposition. Don't underestimate the importance of real obligations to convincing people that relationships need recognition.
Finally, and most important, if you have a valuable benefit like a health plan or a "free ride" pension, you'll need to have requirements and obligations to make it work.
Here is why health and "free ride" pension plans need obligations and requirements.
With a few rare exceptions, people don't get married so that they can get their partners coverage under health plans or pension continuations. There are two reasons for this. First, the legal consequences of marriage are considerable. For example, married people are usually responsible for each others' medical expenses, so while your partner gets coverage, you are on the hook for deductibles, co-payments, expenses not covered, etc. Married people generally have a right to half of each other's earnings. Some, but not all of these obligations can be changed by agreement. Second, and far more important, the social consequences of marriage are considerable. Society has so many conventions about marriage that by entering it, you inevitably make statements about your own values, and, most importantly, about the nature of your relationship. Most people are unwilling to make those statements unless they are in a primary, committed relationship with the person they marry.
Because people don't get married to qualify, a health or pension plan which allowed every employee to add any one person of his or her choosing to the plan (an "open" plan) would always be more expensive than a plan which allowed employees to add spouses. If a plan permits you to add anyone, you might well add a close friend who needed coverage, as long as your partner if you had one were covered elsewhere. You would be far less likely to do that if you have to marry your friend, especially if you had to divorce your spouse to do it. The open plan will have more people who were added because they needed coverage than the spouse plan. That means more people will actually need care (some people need coverage because they are self-employed; some need it because they are sick and, for example, can't work). That means the open plan will cost more.
If your domestic partnership policy is to work, and coverage for domestic partners is to cost the same as spouses, a domestic partner can't simply be anyone you name for the plan. It will have to be someone with whom you really have a committed somewhat spouse-like relationship. Requirements and obligations help describe that, and, like the social and legal consequences of marriage, they discourage cheating.
Many domestic partnership policies begin by describing the relationship as "intimate," "caring," "loving," "mutually supportive," "interdependent," etc. These declarations are important for two reasons. First, the idea usually is to register people who are members of a committed couple, not just good friends or roommates. The declaration discourages people who don't fit it.
For example, a San Francisco pension administrator worried that fire fighters might declare domestic partnerships with sons of coworkers to give them an unjustified pension continuation. After being told that partners had to swear they had "chosen to share one another's lives in an intimate and committed relationship," had to live together, and could not be married to anyone else, the administrator agreed it might not be a problem after all.
The declaration also gives domestic partnership one of its great advantages to LGBT couples: it provides convincing proof that two people aren't just roommates or good friends.
Domestic partnership policies typically have the same minimum age requirement that marriage does. This varies from state to state. They also typically say that you can have only one domestic partner, and that you can't be married to anyone (this seems sensible regardless of whether you think of domestic partnership as marriage substitute or as an alternative relationship).
Domestic partnership policies also tend to prohibit partnerships between people who are related so closely that they couldn't marry. To the extent this applies to parent\child, brother\sister and aunt-uncle\ niece-nephew relationships, this probably makes sense. If you want to include those relationships in a recognition or benefit plan, you don't need a new term to describe them. They are generally deliberately excluded from health and pension plans, and domestic partnership shouldn't be a way of bringing them in the back door.
Many laws incorporate these requirements by referring to them instead of describing them (for example, "the partners may not be related in way which would bar marriage). But since most people have no idea of what the requirements are, it is much better to describe them. See Model C - Declarations.
Domestic partnership plans aimed at equalizing marriage related benefits, or at providing a substitute for marriage often require domestic partners to have lots of the characteristics which the writers think are typical of couples. They tend to demand, for example, that to be domestic partners, people have to have integrated finances, as shown by joint bank accounts, and have to be jointly responsible for rent and mortgage payments.
Although many of these things are typical of married couples, few of them are actually required. Some people try to keep the requirements to those actually required for marriage, on the theory that others exclude important relationships and domestic partners should have to meet requirements married people don't have to meet.
The difficulty with minimizing couples requirements is that since you can't duplicate the social consequences of marriage, approximating some of its typical characteristics may be necessary both politically and to make benefit plans work. Some of those approximations are much more important to benefit plans and to the politics of selling a partnership policy than others are.
If you are designing a registration system that will (or might) be used in conjunction with a health plan, you may want to keep the registration system more flexible than the health plan would be. For example, you could put into the registration systems all the "couples requirements" that you think are necessary to make the policy politically acceptable, but leave out the additional requirements needed for a health plan. The health plan can then say that to qualify, you must register and then sign a declaration with the additional requirements. This lets the registration system be used with less benefit.
A shared place to live, although not required for married couples, is so typical of couples that it tends to be politically essential. It is also required by virtually every significant benefit plan.
The definition of living together of the two policies in Model B have three important features. First, as long as the couple has a shared living space, they allow either partner to keep a place of his or her own as well. That keeps a lot of nonmarital relationships from being excluded, and it is common enough in marriage to be politically acceptable most of the time.
Second, the definition says the parties don't both have to own or be named on the rental agreement, and don't have to both pay for the home. This is very important. Lots of people in nonmarital relationships move into one partner's home or apartment and don't change the title, for tax reasons, because the landlord might not consent, etc. Especially if one partner becomes ill, the other may pay all of the costs of housing. That shouldn't disqualify people from becoming domestic partners.
Finally, the definitions say the domestic partnership doesn't end if one partner leaves but intends to return. If your proposal has a "slob's dissolution" (see 7.9 Writing Policies - The System: Ending the Partnership), you need this to make sure the partnership isn't automatically ended if one partner leaves for open ended stay in, for example, a care facility or another city for a consulting job, etc.
The definition doesn't say anything about principal residences. If a specific benefits plan wants that, you can piggyback it onto a definition used for a registration or for a bundle of benefit plans.
Domestic partnership plans often say that couples must "share the common necessaries of life" or the "common necessities of life." The first phrase is taken from old law on marriages, and it means food, shelter, clothing, medical care and other essentials. The second phrase is an open-ended phrase with no particular meaning.
By themselves, both phrases are probably harmless. It is difficult to say what "sharing food and clothing" for example means. But if coupled with a vague joint obligation, both phrases can be very dangerous.
Even without the vague obligation, either phrase could be interpreted to mean the couple has to share the costs of food, shelter, etc., again a problem if one member isn't working, is an artist, is ill, etc. It is just good practice to avoid vague descriptions of the relationship. If you want people to live together, say so.
Some policies are much more specific about what the couple must share, requiring shared finances, joint bank accounts, etc. Some give long lists things of things and say the couple must have four or five. Since this kind of sharing isn't required of married couples, isn't done by a fair number, and isn't nearly as helpful in benefit plans as living together, none of it is necessary.
Most domestic partnership policies require the partners to make some promises of care and support to each other during the domestic partnership. These are usually very important to benefit plans. Some use very general language to describe the obligation, saying, for example, that the partners are "responsible for their common welfare," or "responsible for each other's basic welfare."
This is a very bad idea, for two reasons. First, the partners don't know what they are obligating themselves to. They may find out only if a creditor of one sues and claims a right to get paid by the other.
Second, this kind of general language could be interpreted to cover all sorts of creditors claims and serious costs like medical expenses. This is more likely if the definition also uses phrases like "sharing the basic necessaries."
Most health plans insist that if domestic partners are going to be included, the partners be responsible for each other's medical expenses that are not covered by the plan, just as married couples are. Fair as that may be when one partner gets coverage, people should know they are taking the obligation on. And it isn't fair to impose this obligation on people who are just registering are get none of the economic privileges married couples get.
A better approach is to use relatively specific language for the obligations, for example " the partners are jointly responsible for the cost of basic food and housing." See Model A - Basic Registration Systems and Model B - Basic Benefits or Recognition Systems. Note: the model defines joint responsibility to mean one partner has to provide for the other if she or he can't provide for her or himself. This avoids the problem of joint contributions if one person is sick, etc.
You can resolve the dilemma of not putting too many obligations on people who just register while making the system work for benefits plans either by "piggy backing" additional requirements in the benefit plan (see 7.2 Writing Policies - The System: Using a Registration System if You Can), or by putting a "floater" in the promise. A "floater" says that the obligations increase or decrease ("float") according to how the relationship is recognized. If a partner gets added to a health plan, the partners are responsible for each other's medical expenses, but not otherwise. See Model A - Basic Registration Systems. "Floaters" can be a potent political tool in arguments about the level of responsibility, since they say, in effect, "beyond a basic obligation, we'll take obligations on to the extent you recognize the relationship."
Many policies and registration systems say that you can't enter a new partnership for a set time after you leave the old one, usually six months. These are very important to health plans in particular. They are the best guarantee against someone dropping a real partner to add someone who isn't truly a partner but who needs the coverage. Since it usually takes at least that long to get divorced, most people don't object to them.
Some benefit plans, especially health plans, require that the relationship exist for six months to a year before a partner becomes eligible. Others say domestic partners can only be added to a plan once a year at an annual "open enrollment." There is no parallel restriction on married couples; employees can usually add spouses to a health plan immediately. But again, people rarely marry to qualify for health plans, and domestic partnership doesn't have the social disincentives that marriage does. This is a sensible way to be sure that, like spouses, only a small percentage of people become domestic partners to take advantage of the plan.
>> Next: 7. Writing Policies -- The System
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