California Appeals Court Recognizes "Putative" Domestic Partnership

A unanimous three-judge panel of the California Court of Appeal ruled on May 6 that when the legislature amended the state’s Domestic Partner Act to extend to registered partners virtually all the state law rights of married couples, it also extended to them the protection of the "putative spouse" doctrine, under which somebody who reasonably believes that they have a valid marriage will be treated as married by the courts. Ellis v. Arriaga, 2008 Westlaw 1946745 (4^th Dist. Ct. App., Div. 3).

Reversing a lower court ruling that had dismissed Darrin Ellis’s petition to dissolve his domestic partnership with David Arriaga, the appellate court found that if Ellis had reasonably relied on Arriaga’s promise to mail their executed partnership declaration to the Secretary of State for filing, then he could have access to the court procedures for dissolving the relationship, even though Arriaga never acted on his promise to mail the form.

Due to the way the case come up the appellate court, as an appeal of a dismissal by the trial court, the facts have not been fully developed, and are only sketchily described in the opinion for the court by Justice Richard Fybel. However, according to the brief filed with court on behalf of Ellis by Lambda Legal, Ellis and Arriaga differ about the facts, with Arriaga claiming that Ellis knew that their partnership declaration had never been submitted to the state for filing. That is irrelevant at this stage of the litigation, which focused solely on the legal question of whether Ellis could have access to the partnership dissolution process, under which the court will distribute the community property assets (including both real estate and personal property) of the relationship, without the form having actually been filed.

Arriaga filed a motion to dismiss the case in response to Ellis’s petition to initiate the dissolution proceeding on September 8, 2006. Ellis alleged that the parties had signed and notarized their declaration of domestic partnership on August 14, 2003, when they have been living together as partners for about two years, and that after they signed the papers in their lawyer’s office, Arriaga had undertaken to mail the papers to the California Secretary of State’s office for registration and filing. Arriaga argued that the dissolution process is made available under the statute to "registered domestic partners," so the court must dismiss Ellis’s petition because their partnership had never been registered. Orange County Superior Court Judge Mark Millard dismissed Ellis’s petition, finding that Ellis could not access the dissolution procedures in the absence of a registered domestic partnership.

In his opinion for the court, Justice Fybel reviewed the history of the putative spouse doctrine, which was first developed by the courts and later codified in a state statute. The doctrine was developed by the courts mainly to protect women who had been led to believe that they were lawfully married but then discovered, either upon the death of their husband or some other event where the legality of their marriage was relevant, that the marriage was void, sometimes because their husband was still legally married to a prior spouse. Fybel then reviewed the history of the Domestic Partner Act, noting particularly the legislature’s stated intent to confer on domestic partners the same California state law rights that are enjoyed by married couples.

"Given the intended reach of the Domestic Partner Act, we conclude that a person with a reasonable, good faith belief in the validity of his or her registered domestic partnership is similarly entitled to protection as a putative registered domestic partner, even if the domestic partnership was not properly registered," wrote Fybel. "The whole point of the putative spouse doctrine is to protect those whose marriage was not or could not be properly formalized, or was void, voidable, or otherwise invalid," Fybel continued. "The Domestic Partner Act was intended by the Legislature to extend to registered domestic partners the legal rights and responsibilities held by married couples to the extent permitted by law. The putative spouse doctrine is not a right or obligation accorded by federal law, the California Constitution, or voter initiative, and therefore is not excluded from the rights granted to registered domestic partners if they reasonably believed they were so registered."

The court did have one barrier to overcome in reaching this conclusion, Velez v. Smith, 142 Cal.App.4th 1154 (2006), in which another panel of the Court of Appeal held that the putative spouse doctrine could not be used by domestic partners. A lesbian couple had registered as partners back in the 1990s under San Francisco’s city domestic partnership ordinance. Before the state’s law went into effect in its current form on January 1, 2005, one of the women had filed a notice to dissolve their San Francisco partnership. Then, after the state law went into effect, the partner seeking dissolution filed a new petition in state court, seeking to make use of the new state procedures for dissolving domestic partnerships. In its decision finding no jurisdiction over the dissolution petition, the court of appeal rejected the application of the putative spouse doctrine on those facts, stating along the way that the state’s Domestic Partner Act did not include the putative spouse doctrine.

"To the extent Velez is inconsistent with our conclusion, we respectfully disagree with its conclusion regarding putative domestic partnerships," wrote Justice Fybel. "The court in Velez stated that if the Legislature had intended the putative spouse doctrine to apply to registered domestic partnerships, it would have expressly said so. .. However, the Domestic Partner Act was specifically designed by the Legislature to make the rights and responsibilities of registered domestic partners as similar to the rights and responsibilities of married couples as permissible under California law, without actually recognizing a right of gay and lesbian couples to marry. The Domestic Partner Act marked a sea change in the manner by which rights were extended by law to registered domestic partners."

This "sea change" was that in prior versions of the state law, partner had a short list of state law rights, but when the law was amended to its current form, the legislature abandoned the list approach and instead stated that partners should have the same state law rights (with a few noted exceptions) as married couples. Since married couples in California benefit from the putative spouse doctrine, the court of appeal concluded that domestic partners were entitled to this state law right as well.

Lambda Legal attorneys Tara L. Borelli and Jennifer C. Pizer represented Ellis on the appeal, which was not formally opposed by Arriaga. The Attorney General’s office appeared as friend of the court in support of Ellis’s appeal.