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This chapter covers the overall structure of domestic partnership policies and how to make them work.
There are two mechanisms for domestic partnership.
First, there are registration mechanisms. These set up a system for couples to create and end domestic partnerships. These are only set up by governments. Second, there are internal mechanisms. These are systems set up by institutions, most often employers, to tell the institution that a couple has created a domestic partnership.
Either type of system can be used with a recognition or a benefit policy. The employer or other institution can open its recognition system or benefit plan to couples who have registered, or it can make it available to anyone who uses an internal mechanism to establish that they are domestic partners.
Both systems share three characteristics. First, each has a definition or description of what a domestic partnership is. Second, each uses a document, usually called a declaration or affidavit of domestic partnership, to establish or prove the relationship. Finally, each has a system which uses the document, either simply to record the existence of the relationship (as with pure recognition systems) or to run a recognition or benefits system.
If you are designing a domestic partnership policy for anyone other than a government, (like an employer, a hospital or a museum, or a gym or an auto club, etc.), find out if your local government has a domestic partnership registration system. If it doesn't, see if it might be possible to get it to adopt one. If your city has a registration system, you can have the employer, hospital, etc., in which you are working adopt its definition of domestic partnership and its system for having the couples create partnership. Many businesses have adopted domestic partnership policies without using government registration systems, so you can do that if you need to. But there are two drawbacks to "internal" systems.
First, internal systems focus on the business's needs. This means they are often ambiguous about aspects of the partnership which can be very important, such as when it starts when it ends and exactly what its terms are. Internal systems are usually designed, for example, to tell a human resources department that an employee is in a partnership. This means that they tend not to say when the partnership was created.
Similarly, internal systems usually focus on telling the business when a benefit should end, but not necessarily when or if the partnership ended (for example, you might take your partner off your employers health plan if it requires a contribution to the premium and she or he gets a job with a plan that does not).
Worse, some are ambiguous about the specifics of the relationship. Like registration systems, internal systems usually set out requirements to be domestic partners. But they often set up minimum requirements that they say the partnership must meet. Unlike registration systems, they usually don't say the partners don't have any obligation to each other apart from those requirements.
All this means that if there is a disagreement about some obligation--when it started, when it ended, whether it was included--an internal system may not answer it. But for many domestic partners the paper from that system is the only document about the partnership they have. This ambiguity can be a serious problem if the internal system has requirements that the partners take on significant obligations to each other, or if the system suggests they may have without spelling them out.
Some employers shy away from government registration systems because they are typically based on a "basic" set of requirements, and the employers need more requirements for complex benefit plans like health plans and pension plans.
This problem can be solved by having the employer "piggy back" the additional requirements onto the registration system's definition. The employer simply requires that domestic partners be registered under the city's system and that when the partners request the benefit, they sign a declaration stating that they meet the other requirements.
While this may seem a little cumbersome, the use of the registration system eliminates the time and specificity problems created by most internal systems.
The other drawback to internal plans is that each tends to have its own description of domestic partnership. At some point, too many definitions may make working with domestic partnership unwieldy at best; for example, you shouldn't have to change the legal definition of your relationship because one of you changes jobs.
Under both internal and registration systems, the domestic partnership is actually created by the agreement of the partners; it is not created by the business or the government. The idea is that the government or business in effect says to the couple "If you meet these requirements (like an age or residency requirement) and have agreed to these things (like a support obligation) we will register your relationship (or put your partner on the health plan, etc.)."
The agreement format is very important. Most courts that have decided cases on the issue say two people can make agreements about their relationship, the same way they can make other types of contracts. It is very doubtful, however, that a city or a business could create any sort of relationship.
At the core of every domestic partnership system is a document, usually called a declaration or affidavit of domestic partnership. With registration systems, the declaration is usually the agreement by which the partners create the relationship. With internal systems, the declaration is usually a statement that the partners have made an agreement creating a domestic partnership at some point, a kind of "notice of an agreement."
Declarations for internal systems should say when the partnership was created. But they should be clear that the date marks when the relationship took on all the required characteristics and the partners made the agreement, not the date they became a couple. See Model A -- Basic Registration Systems.
Declarations typically have the partners say that they meet all of the requirements for domestic partnership. Registration declarations usually have the partners make whatever promises are required; internal systems typically have the partners say they have made the necessary promises. See Model A -- Basic Registration Systems.
Declarations should be written straightforwardly, so that anyone can understand them. The declaration should also list the requirements and promises instead of just referring to them as a group ("the requirements to be domestic partners). You want to be sure people who sign up understand what they are saying.
To be an agreement, a declaration has to be signed by both parties. Even with an internal system where the declaration is a "notice of an agreement," it makes sense to have both partners say they have agreed, especially since the declaration is often the only written record of the agreement. Most declarations are either sworn or notarized, or both. Requiring that the statement be sworn is some assurance that the people who sign it are serious.
Notarization is some assurance that neither signature was forged, since people have to appear in person before a notary and give proof of identification. Instead of requiring notarization, some registration systems require both partners to sign the declaration in front of the clerk who will file it. Notarization can also be way to establish an informal registration system.
Most registration systems have the partners file the declaration with a local official, usually a city or county clerk. Some give the partners a stamped copy, showing that the original was filed. Others give the partners a certificate saying that the declaration was filed.
Some registration systems restrict use to locals. If you plan to do this, make sure that registration is open to any couple that lives in the city, and any couple at least one of whom works in the city. Otherwise, local employers won't be able to use the registration system effectively.
In some states, filed declarations will be public records, available to anyone who wants to see them. This is a matter of concern to some couples, especially LGBT couples. Some worry because one or both are not "out" to family or at work; others worry that the system can be used to target LGBT couples for harassment.
Whether the declarations will be public records or not is usually a matter of state law, which you can't change by putting a confidentiality provision in your policy. Get your lawyer to find out. If the declarations will be public, make sure couples who go to sign up are warned, either on the declaration or in a flyer handout given to anyone who signs up. If you can't make the declarations confidential, think about providing an informal registration system.
A few registration systems allow couples to create domestic partnerships with an "informal" registration system. These usually require a sworn statement, a witness and notarization. See Model A -- Basic Registration Systems. Informal systems usually require that the witness be given a copy of the declaration. That, along with the notarization, provides at least some independent record of the partnership.
If you plan to advocate both a government registration system generally available to couples and some type of benefit for government employees, you might want to keep the policies separate even if you decide to campaign for both at the same time. The government benefit plan is likely to have requirements you won't want to include in a registration system open to everyone. You also want to make sure people understand that only government employees are eligible for the benefits plan.
If you plan to advocate a government registration system and a government recognition system that will use the same definition as the registration system, you may want to keep them together. Typical examples of recognition systems include jail visitation policies and hospital visitation policies. Hospital leave policies are a bit tricky, since you want domestic partners to have access, but not over a patient's objections or if it might be truly harmful. See Model D - Special Sections.
You can have your government agency adopt a general nondiscrimination policy; that is, a statement that it will treat domestic partners like spouses. This may make sense given the limited ways local government recognizes marriage. However, this kind of language can spark odious arguments about whether domestic partnerships are equal to marriage, and provide your opponents with fuel.
You could adopt a government system that also requires private businesses, including employers, landlords, etc., not to discriminate. As explained earlier (see 1.3 What's Possible: Basic Possibilities - Benefits Systems) state and local governments cannot require employers to include domestic partners in most benefit plans. They may be able to require recognition in recognition systems, or benefit plans which are not financially significant.
They also may be able to require other businesses, like gyms, clubs, etc., which have couples rates, to recognize domestic partnerships. This is largely a matter of what kind of power your government has. See 1.2 What's Possible: Basic Possibilities - Registrations. Mandatory nondiscrimination policies may be more trouble than they are worth. They almost automatically start odious equality debates, and they can make opponents out of business who would use the policy if it were voluntary.
Most registration systems set up a process for people to end domestic partnerships. Under all systems, either partner can end the relationship by sending a notice saying it is over to the other. If the declaration was filed, the notice that it is over should usually be filed.
Some systems say the notice should be sent to the address shown on the declaration, and then allow people to amend the declaration to update addresses. A lot of people may not bother with that kind of bureaucracy, and for most partnerships, where the partner will be easy to locate in fact, it seems unnecessary. It may be simpler and better just to say that you must give notice to your partner.
If the domestic partnership was used in any benefits or recognition systems, the domestic partner who told the system about the partnership has to tell it that the partnership is over. Usually, the partner must do that within a certain time, often 60 days of the day the partnership ends. Most laws provide that partnerships end automatically if a partner dies or gets married. In the first case, requiring a notice to end the partnership seems silly.
Ending the partnership if either partner marries is designed to deal with a delicate problem. Marriage is created by state law. If the partners were to agree when they created the domestic partnership that neither would marry unless the partnership were first dissolved, the policy might be subject to legal attack as interfering with the state created right to marry. Saying that the partnership ends automatically on marriage avoids the problem.
Some policies provide that the partnership ends if the partners stop living together. This is designed to take care of a very practical problem. Since domestic partnership doesn't have the social and legal consequences of marriage, there is a greater risk that people will end their relationships by separating, and won't bother with the ending notice. The problem is that if the partnership carries obligations, the obligations would continue, and one partner could find him or herself responsible for a former partner's debts long after the partnership had dissolved.
Domestic Partners are unlikely to foresee that possibility. Perhaps with a relationship to which society attaches the serious consequences and recognition which it gives to marriage, it makes sense to let people who don't follow the formalities suffer the consequences. With a relationship as scantily recognized as domestic partnership that seems less clear.
If you include a "slob's dissolution" provision, make sure you say in your "living together" definition that the relationship won't dissolve if one partner leaves but intends to return. See Model A -- Basic Registration Systems.
In addition to being clear about the obligations domestic partners have to each other, a good policy puts clear limits on those obligations. Couples who are domestic partners can have additional agreements between themselves, including legally enforceable agreements. They could agree, for example, to share earnings like married people do. However, the policy should make it clear that signing a declaration is evidence only of the obligations it describes, and that it neither creates nor implies any others. Neither a partner nor anyone else should be able to use it to suggest other obligations. See Model A -- Basic Registration Systems.
A registration policy should also make it clear that the promises the partners make to each other only cover obligations which are created while the partnership exists. See Model A -- Basic Registration Systems. Since internal policies don't generally address creation and ending the relationship, it is tough to include this limit in that kind of policy.
>> Next: Model Policy A -- Basic Registration Systems
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