HB 569-FN – AS INTRODUCED

2011 SESSION

11-0348

09/10

HOUSE BILL 569-FN

AN ACT establishing domestic union as a valid contract and extending certain rights to parties to a domestic union.

SPONSORS: Rep. Bolster, Belk 5; Rep. Cohn, Merr 6; Rep. Comerford, Rock 9; Rep. Waddell, Rock 15; Rep. Lambert, Hills 27; Rep. Pratt, Hills 7; Rep. Drisko, Hills 5; Rep. Ball, Hills 9; Rep. C. Christensen, Hills 19

COMMITTEE: Judiciary

ANALYSIS

This bill establishes domestic union as a valid contract and extends certain rights to parties to a domestic union.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

11-0348

09/10

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Eleven

AN ACT establishing domestic union as a valid contract and extending certain rights to parties to a domestic union.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Purpose. The purpose of this act is to:

I. Provide order in the community and protection of rights to persons entering into a contract of domestic union.

II. Provide eligible individuals the opportunity to obtain certain specified benefits, protections, and responsibilities.

III. Provide any 2 people, without consideration of their gender, the privilege to enter into a legally binding contract that commits the parties to mutual responsibilities and obligations.

IV. Reserve and establish marriage as a supremely cultural and individual right apart from government definition, while providing state recognition and regulation of domestic unions for the purpose of providing legal order in society and protection for couples and families under the law.

2 New Chapter; Contract of Domestic Union. Amend RSA by inserting after chapter 457-A the following new chapter:

CHAPTER 457-B

CONTRACT OF DOMESTIC UNION

457-B:1 Definitions. In this chapter:

I. “Domestic union” means that 2 eligible persons have established a legally recognized relationship in conformance with this chapter, have registered a record of the agreement to enter into that relationship, and shall receive the benefits and protections, and agree to be subject to the responsibilities and obligations, set forth in this chapter.

II. “Domestic union application” means a form to be completed in accordance with this chapter and submitted to a town or city clerk or the state registrar in order to register a contractual cohabitation.

III. “Domestic union certificate” means a document that certifies that the 2 persons named on the certificate have established and registered a contract to cohabit in this state in compliance with this chapter.

IV. “Party to a domestic union” means a person who has established and registered a domestic union pursuant to this chapter.

457-B:2 Requisites for a Valid Domestic Union.

I. For a domestic union to be established in New Hampshire, neither party shall be a party to another domestic union or a marriage.

II. No person shall enter into a domestic union with his or her mother, father, grandmother, grandfather, daughter, son, granddaughter, or grandson. A domestic union between persons prohibited from entering a domestic union as provided in this section is void.

III. No person shall enter into a domestic union who is under 18 years of age, unless such person is 14 years of age or older if male and 13 years or older if female and has the consent of his or her parent or guardian.

IV. No person shall enter into a domestic union who is under guardianship.

457-B:3 Benefits, Protections, and Responsibilities and Obligations of Parties to a Domestic Union.

I. A domestic union contracted under this chapter shall be the legal equivalent to marriage and civil unions under federal law and the laws of the states; provided that the domestic union meets the criteria for marriage in such other jurisdiction. A civil union recognized in another state shall be recognized as a domestic union in this state. Parties to a domestic union shall have all the benefits, protections, obligations, and responsibilities under law as specified in this chapter. Parties to a domestic union shall be responsible for the support of one another to the same degree and in the same manner as prescribed under this chapter.

II. The following is an exclusive list of legal benefits, protections, obligations, and responsibilities which shall apply to parties to a domestic union:

(a) The rights and responsibilities of parties to a domestic union, with respect to a child of whom either becomes the natural parent during the term of the domestic union, shall be as prescribed under this chapter, with respect to a child of whom either party becomes the natural parent during the contract.

(b) A party to a domestic union, relative to the other party to the domestic union, shall have the same rights granted and is subject to the same limitations or restrictions imposed and established by:

(1) RSA 78-B:2, XIII, relative to an exemption from property transfer taxes.

(2) RSA 88-A:5, V, relative to taxation in the same manner provided for a survivor.

(3) RSA 126-A:36 and RSA 126-A:37, relative to the state recovering expenses incurred in providing services.

(4) RSA 137-J, relative to written directives for medical decisions.

(5) RSA 151:21 through RSA 151:31, relative to the patients’ bill of rights.

(6) RSA 151:2, II(b), relative to exemption from licensure requirements for facilities maintained or operated for the sole benefit of persons related to the owner or manager by marriage.

(7) RSA 161-B:2, II, relative to exclusion from the definition of child for the purposes of support of dependent children.

(8) RSA 161-C:2, II, relative to exclusion from the definition of dependent child.

(9) RSA 161-H:1, I relative to exclusion from the definition of dependent child for purposes of the medical child support statute.

(10) RSA 161-I:2, VIII, relative to including spouse in the definition of a legally responsible person.

(11) RSA 162-A:4, II prohibiting the director of the business finance authority from participating in any matter in which his or her spouse has a financial interest.

(12) RSA 165:19, relative to a duty to support.

(13) RSA 167, relative to public assistance to blind, aged, or disabled persons, and to dependent children.

(14) RSA 168-A, relative to the uniform act on paternity.

(15) RSA 168-B, relative to surrogacy.

(16) RSA 170-B, relative to adoption.

(17) RSA 170-E:2, XIII and RSA 170-E:25, XIV, relative to being recognized as being related to a child in statutes addressing day care, residential care, child placing agencies, and residential care and child-placing agencies.

(18) RSA 205-A:1, VI, relative to including spouse in the definition of a family member for purposes of regulating manufactured housing parks.

(19) RSA 259:66-a, relative to including spouse in the definition of next of kin for motor vehicle law purposes.

(20) RSA 261:17 and RSA 261:45-a, establishing that a vehicle is presumed to be jointly held with right of survivorship.

(21) RSA 261:95, relative to allowing for the return of vehicle registration plates and obtaining a proportional refund.

(22) RSA 263:56 and RSA 264:26, relative to the investigation of and license revocation hearings related to fatal motor vehicle accidents and the status of next of kin.

(23) RSA 287-F:8, relative to preventing the cohabiting party of a lotto member officer from buying tickets or receiving a lotto payout.

(24) RSA 290, relative to burials and disinterments.

(25) RSA 291-A, relative to the uniform anatomical gift act.

(26) RSA 292:6-a, relative to requiring the board of directors of a charitable nonprofit corporation to have at least 5 voting members who are not related by blood or marriage.

(27) RSA 382-A:9-102(a)(62), relative to including a spouse in the definition of a “person related to” for the purposes of article 9 of the Uniform Commercial Code.

(28) RSA 458-A, RSA 458-B, RSA 458-C, and RSA 458-D, relative to the uniform child custody jurisdiction and enforcement act, income assignment, child support guidelines, and parental rights and responsibilities and child support impact seminars.

(29) RSA 460:2-a, relative to antenuptial agreements.

(30) RSA 464-A, relative to guardians and conservators.

(31) RSA 477, relative to conveyances of realty and interest therein.

(32) RSA 480, relative to the homestead right.

(33) RSA 491:7 and RSA 491:14, relative to the jurisdiction and equity procedure of the superior court.

(34) RSA 506:2, applying the statute of frauds to agreements.

(35) RSA 529:20-a, relative to notice of homestead exemption in the levy of executions on real estate.

(36) RSA 546-A, relative to uniform civil liability for support.

(37) RSA 546-B, relative to the uniform interstate family support act.

(38) RSA 551 through RSA 554, relative to wills, probate of wills, administrators and their appointment, and inventory, accounts, and dealing with assets.

(39) RSA 560, relative to the rights of a surviving spouse.

(40) RSA 611-B, relative to the office of the medical examiner.

(41) RSA 639:4, relative to criminal penalties for non-support.

(42) RSA 651:4-a, relative to the rights of the next of kin of the victim of a crime.

(43) RSA 651:62, III, relative to the definition of economic loss.

(44) RSA 651-A:11 and RSA 651-A:11-a, relative to a right of the next of kin to notice of a parole hearing and to appear and express his or her view when the victim of the crime has died.

457-B:4 Domestic Union Applications and Certificates; Filing.

I. The secretary of state shall provide domestic union license application and certificate forms to all town and city clerks. The secretary of state shall keep a record of all registered domestic unions.

II. There shall be a domestic union application which shall be the form that is used to record that the domestic union contract has been entered into and to record who witnessed the execution of the domestic union. The application shall be completed by the parties. The application shall be submitted to the clerk of the town or city where the contract is entered into in accordance with the provisions of this chapter or to the state registrar. The domestic union certificate shall be the official copy of the domestic union certificate and it shall be issued when the domestic union is registered with the department of state, division of vital records.

III. The domestic union application shall include the following information and shall be in the form specified by the secretary of state. Blank domestic union applications shall be available from the secretary of state, the state registrar, and from town and city clerks. The domestic union application shall be completed by the parties to the agreement. The information supplied by each party shall include his or her full name; his or her usual residence by street and number, city, town or location, county, and state; his or her birthplace; his or her date of birth; his or her social security number; the date and the city or town where the domestic union is entered into; the name of the town or city clerk or state registrar who takes the oath of the parties entering into the agreement; signature and the date signed, and certification that the information provided is correct to the best of his or her knowledge and belief and that he or she is free to enter into a domestic union under the laws of New Hampshire.

IV. The clerk of the town or city or the state registrar shall complete the following statistical and legal information on the domestic union application or in the electronic record of that application for each party with the information supplied by the party if previously married or previously a party to a domestic union.

V. Once all of the information on the domestic union application has been obtained, the clerk of the town or city or the state registrar shall transfer the information from the domestic union application, the date that the domestic union certificate is issued, the name of the clerk or the state registrar, and the name of the city or town of issuance into the state’s vital records system. The clerk shall then issue a domestic union certificate bearing this information in the form established by the secretary of state. The domestic union shall be effective on the date the domestic union certificate is issued.

VI. Upon request of either party, the name of a legal guardian shall be substituted on the domestic union certificate for a natural parent’s name.

VII. A domestic union may be solemnized in the faith and manner selected by the parties. Information regarding any solemnization may be included by the parties on the domestic union certificate, but is not required and does not affect its validity.

VIII. When listing the birthplace on the domestic union application, if the person is known to have been born in the United States, but the state is unknown then “U.S. - Unknown” shall be entered, and, if the person is known to have been born in a foreign country, but the country is unknown, “Foreign Unknown” shall be entered. If no information is available regarding place of birth, “Unknown” shall be entered.

IX. The town or city clerk or state registrar shall record the following on the domestic union application after the domestic union agreement has been entered into: the date the parties entered into the domestic union agreement; the city, town, or location and county where the agreement was entered into; certification that each party made the required oath or affirmation; that the information entered by the clerk or state registrar is correct to the best of his or her knowledge; the signature of the clerk or state registrar; and the typed, stamped, or printed name of the clerk or state registrar.

457-B:5 Fee. The fee for registering a domestic union and receiving a domestic union certificate shall be $45 to be paid by the parties entering into the agreement. The clerk or the state registrar shall forward $38 from each fee to the department of health and human services for the purposes of RSA 173-B:15. The clerk shall retain the remaining $7 as the fee for making the records of notice, issuing the certificate, and forwarding the $38 portion of the fee.

457-B:6 Record of Domestic Union Application; Penalty for Material Misrepresentation.

I. The clerk or the state registrar shall retain the completed domestic union application in his or her office. If the application is registered directly with the state registrar, the state registrar’s office shall provide the clerk of the town or city where the agreement was entered into with a paper or electronic record of the domestic union certificate.

II. A person submitting a domestic union application to a clerk or the state registrar to register a domestic union and obtain a domestic union certificate who makes a material misrepresentation shall be guilty of perjury.

457-B:7 Evidence of Domestic Union. The original or a certified copy of the domestic union certificate issued by a clerk or the state registrar shall be presumptive evidence of the domestic union in all courts.

457-B:8 Modification of Domestic Union Terms. Parties to a domestic union may modify the terms, conditions, or effects of their domestic union in the same manner as an antenuptial agreement or other agreement recognized and enforceable under the law.

457-B:9 Dissolution of Domestic Unions. The superior court shall have jurisdiction over all proceedings relating to the dissolution of domestic unions.

457-B:10 Construction. This chapter shall be construed narrowly in order to secure to eligible persons the option of the legal status of domestic union with only enumerated benefits, protections, obligations, and responsibilities established by this chapter.

457-B:11 Severability. The provisions of this chapter are severable. If any provision of this chapter is invalid, or if any application thereof to any person or circumstance is invalid, the invalidity shall not affect other provisions or applications which can be given effect without the invalid provision or application.

3 Chapter Heading. Amend the chapter heading of RSA 457 to read as follows:

CHAPTER 457

[MARRIAGES] DOMESTIC UNIONS

4 Minimum Age for Domestic Union. Amend RSA 457:4 to read as follows:

457:4 [Marriageable] Minimum Age. No male below the age of 14 years and no female below the age of 13 years shall be capable of contracting a valid [marriage that is entered into by one male and one female] domestic union, and all [marriages] domestic unions contracted by such persons shall be null and void. No male below the age of 18 and no female below the age of 18 shall be capable of contracting a valid [marriage] domestic union between persons of the same gender, and all [marriages] domestic unions contracted by such persons shall be null and void.

5 Age of Consent. Amend RSA 457:5 to read as follows:

457:5 Of Consent. The age of consent shall be in the male and in the female, 18 years. Any [marriage] domestic union contracted by a person below the age of consent, except as hereinafter provided, may in the discretion of the superior court be annulled at the suit of the party who at the time of contracting such [marriage] domestic union was below the age of consent, or at the suit of his or her parent or guardian, unless such party after arriving at such age shall have confirmed the [marriage] domestic union.

6 Petition by Party Under Age. Amend RSA 457:6 to read as follows:

457:6 Petition by Party Under Age. If special cause exists rendering desirable the [marriage] domestic union of a person resident in this state, or the [marriage] domestic union of a person who is a nonresident in this state who applies for permission to [marry] enter a domestic union with a resident in this state, either person being below the age of consent and above the ages specified in RSA 457:4, the parties desiring to contract such [marriage] domestic union, with the parent or guardian having the custody of such party below such age, if there be such parent or guardian, may apply in writing to a justice of the superior court, or to the judge of probate of the county in which one of them resides, for permission to contract such [marriage] domestic union. No waiver shall be granted to persons below the age of consent if both parties are nonresidents.

7 Granting of Permission. Amend RSA 457:7 to read as follows:

457:7 Granting of Permission. Such justice or judge shall at once hear the parties, and, if satisfied that special cause exists making such [marriage] domestic union desirable, shall grant permission therefor, which shall be filed with the court and shall be reported to the division of vital records. The division shall note the fact of the granting of such permission upon the certificate and upon all copies thereof which are by law required to be kept.

8 Prohibitions. Amend RSA 457:8 to read as follows:

457:8 Prohibitions. No town or city clerk shall issue any certificate for the [marriage] domestic union of any person below the age of consent, [and no magistrate or minister of religion shall solemnize the marriage of any such person,] if such clerk[, magistrate or minister] knows or has reasonable cause to believe that such person is below such age, unless permission for such [marriage] domestic union has been given under this subdivision. [No magistrate or minister of religion shall solemnize any marriage by proxy.]

9 Certified Copy of Record. Amend RSA 457:38 to read as follows:

457:38 Certified Copy of Record. A copy of the record of a [marriage] domestic union, certified by a city or town clerk or by the registrar of vital records, shall be received in all courts and places as evidence of the fact of the [marriage] domestic union.

10 Cohabitation. Amend RSA 457:39 to read as follows:

457:39 Cohabitation, etc. Persons cohabiting and acknowledging each other as [husband and wife] parties to a domestic union, and generally reputed to be such, for the period of 3 years, and until the decease of one of them, shall thereafter be deemed to have been [legally married] parties to a legal domestic union.

11 Civil Actions. Amend RSA 457:40 to read as follows:

457:40 In Civil Actions. In all civil actions, except actions for criminal conversation, evidence of acknowledgment, cohabitation, and reputation is competent proof of [marriage] domestic union.

12 Criminal Cases. Amend RSA 457:41 to read as follows:

457:41 In Criminal Cases. In actions for criminal conversation, and in indictments for adultery, bigamy, and the like, there must be proof of a [marriage] domestic union in fact.

13 Parents. Amend RSA 457:42 to read as follows:

457:42 [Marriage] Domestic Union of Parents. Where the parents of children born before [marriage] domestic union afterwards [intermarry] enter a domestic union, and recognize such children as their own, such children shall be legitimate and shall inherit equally with their other children under the statute of distribution.

14 Subdivision Heading. The subdivision heading preceding RSA 457:43 is repealed and reenacted to read as follows:

Recognition of Domestic Unions

15 Recognition of Domestic Unions; Residents. Amend RSA 457:43 to read as follows:

457:43 Residents. If any person residing and intending to continue to reside in this state is prohibited from contracting [marriage] a domestic union under the laws of this state and goes into another jurisdiction and there contracts a [marriage] domestic union prohibited and declared void by the laws of this state, such [marriage] domestic union shall be null and void for all purposes in this state, with the same effect as though such prohibited marriage had been entered into in this state.

16 Recognition of Domestic Unions; Nonresidents. Amend RSA 457:44 to read as follows:

457:44 Nonresidents. No [marriage] domestic union shall be contracted in this state by a party residing and intending to continue to reside in another jurisdiction if such [marriage] domestic union would be void if contracted in such other jurisdiction, and every [marriage] domestic union contracted in this state in violation hereof shall be null and void.

17 Subdivision Heading. Amend the subdivision heading preceding RSA 457:45 to read as follows:

Civil Union Recognition; Obtaining Legal Status

of [Marriage] Domestic Union

18 Civil Union Recognition. Amend RSA 457:45 to read as follows:

457:45 Civil Union Recognition. A civil union legally contracted outside of New Hampshire shall be recognized as a [marriage] domestic union in this state, provided that the relationship does not violate the prohibitions of this chapter and RSA 547-B.

19 New Section; Obtaining Legal Status of Domestic Union. Amend RSA 457 by inserting after section 46 the following new section:

457:47 Obtaining Legal Status of Domestic Union.

I. No new marriages shall be established on or after January 1, 2012. Two consenting persons who are parties to a valid marriage entered into prior to January 1, 2012 pursuant to this chapter may apply and receive a domestic union certificate under RSA 457-B, provided that the parties are otherwise eligible to enter a domestic union and the parties to the domestic union are the same as the parties to the marriage. Such parties may also apply by January 1, 2013 to the clerk of the town or city in which their marriage is recorded to have their marriage legally designated and recorded as a domestic union, without any additional requirements of payment of fees, provided that such parties’ marriage was not previously dissolved or annulled. Upon application, the parties shall be issued a domestic union certificate, and such domestic union certificate shall be recorded with the division of vital records administration. Any marriage shall be dissolved by operation of law by any domestic union of the same parties to each other, as of the date of the domestic union stated in the certificate.

II. Two persons who are parties to a marriage established pursuant to RSA 457 that has not been dissolved or annulled by the parties or merged into a domestic union in accordance with paragraph I by January 1, 2013 shall be deemed to be in a domestic union under this chapter on January 1, 2013 and such marriage shall be merged into such domestic union by operation of law on January 1, 2011.

20 Repeal. The following are repealed:

I. RSA 457:1 through 457:3, relative to marriage, relationship.

II. RSA 457:22-29, relative to documentation of marriages.

III. RSA 457:31-37, relative to solemnization of marriages.

IV. RSA 457:46, relative to obtaining legal status of marriage.

21 Effective Date. This act shall take effect January 1, 2012.

LBAO

11-0348

Revised 02/23/11

HB 569 FISCAL NOTE

AN ACT establishing domestic union as a valid contract and extending certain rights to parties to a domestic union.

FISCAL IMPACT:

The Department of State states this bill will increase state general fund expenditures by $50,500 in FY 2012. There will be no fiscal impact on state revenues, or county and local revenues or expenditures.

METHODOLOGY:

The Department of State states this bill would repeal same sex marriage and establish domestic unions. The Department states if this bill were to pass it would require the printing of new forms to reflect the changes. The Department estimates it would incur the following costs in FY 2012 to implement the changes in this bill:

The Department of Health and Human Services and New Hampshire Municipal Association state this bill will have no fiscal impact.