Legal Alerts-July 1999
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News from Abroad

Canada and Finland are both in the midst of some fascinating legal and legislative debates regarding same-sex couples. In many ways, these countries are far in advance of what is being fought over here at home. For this reason, it is especially instructive to listen to what is happening in foreign lands.

In Canada, the Supreme Court recently ordered the province of Ontario to amend its laws to allow same-sex couples full legal standing, on par with the rights of unmarried heterosexual couples. In the landmark case of M. v. H. (Supreme Court of Canada, May 20, 1999) the Court held that language limiting the province's definition of a spouse as a person of the opposite sex is unconstitutional. Wow!

The dispute arose in the context of a lesbian dissolution, where one partner sued after being denied the right to collect alimony from her ex-lover. It's critical to note that the applicable statute gives alimony rights not only to married couples, but also to a man or a woman who is "not married to each other and have cohabited continuously for a period of not less than three years." Because the statute grants alimony rights to unmarried long-term straight couples, the literal issue of "same-sex marriage" was not at stake in this case. Interestingly, however, it was the denial of a right to a financially-meaningful gay "divorce" that triggered this dispute, rather than a demand for same-sex marriage-type rights.

In response to the Court's decision that the heterosexual limitation on unmarried couples, the national Parliament is -- not surprisingly -- attempting to invalidate that Court decision. One of the Canadian political parties has proposed a motion in Parliament stating that marriage should only be for "one man and one woman, and passage of this motion is anticipated. Whether this motion will invalidate the Court's ruling remains to be seen. In the meantime, the provincial legislatures are faced with the daunting tasks of amending hundreds of statutes containing opposite-sex limitations on rights and benefits.

The full text of the Canadian decision can be found at

In Finland, the Justice Minister is backing a proposal to allow same-sex couples to register their "unions," just as married couples do. This would allow gay couples to obtain certain specified inheritance rights, survivor's pensions, social security benefits and some tax relief, and could also grant same-sex couples the same dissolution benefits as married couples receive. As currently proposed, however, the proposal would not allow same-sex couples to adopt children. Parliament is not expected to debate the proposal until next year.

New Developments in California's Child Custody Debates

As discussed in prior Legal Alerts, California law currently does not allow a non-biological partner to seek custody or visitation of a child she or he has co-parented, in the absence of a second-parent adoption. In response to this severe legal doctrine, activists and attorneys are working to develop new strategies to legalize same-sex families with children.

Two interesting developments are taking place this summer, one in the San Francisco Bay Area courts and the other in the Sacramento legislature.

In San Francisco, Judge Donna Hitchens has ruled that where one mom had carried the baby to term and the other mom had donated her egg for in vitro fertilization, both moms could be deemed legal parents. Accordingly, the Judge issued an order establishing parental status for both parents -- before the child was even born! Across the Bay in Alameda County, a similar order was granted in a similarly high-tech birth arrangement.

The benefit of this procedure is that there is no need for a second-parent adoption, and therefore no need for a site visit or any state involvement after the child is born. Moreover, the co-parenting arrangement is legalized before the child is born, thereby removing the uncertainty of having only a single legal parent at the birth of the child.

Take note: this approach will probably only work where both parents have participated biologically in the child's conception or birth. Moreover, it is a newly-evolving legal procedure, and its validity and viability in other jurisdictions is unknown.

In the California legislature, a bill has been proposed which would expressly allow non-biological and non-legal parents to seek visitation -- though not custody -- of children they have co-parented, without the need for a second parent adoption. The Assembly bill, a proposed new Section 3105 in the Family Code, would allow de facto parents (as defined in the bill) to seek visitation where the court finds that this would be in the best interest of the child. While the law would not by itself guarantee visitation by a non-legal parent, it would remove the "standing" bar which absolutely precludes a non-legal parent from making such a request, and allow a non-biological or non-legal parent to have her "day in court."

A Gift, a Loan, or an Exchange?

In my role as an advocate, and oftentimes when serving as a mediator or an arbitrator, one of the most difficult situations -- and one that quite frequently arises -- is that of the contested gift. In the typical situations, one partner has contributed more than his or her lover to a jointly owned property, or one partner has contributed cash to a property owned solely by his or her partner. Then, years later, a dissolution occurs, and the couple can't agree as to whether this payment was a gift, a loan, or an exchange.

These situations present painful conflicts -- legally, practically and emotionally. The legal problems arise when the names on the deed (or the bank or stock account) create a presumption as to who the owner or owners are, and one of the partners believes that there was an understanding or agreement contrary to that presumption. In most states a claimed oral or implied agreement can be invoked to try to overcome the presumption that the deed is correct and enforce the contrary claim, while in other states only a written agreement can rebut the written deed or account title.

The practical problems in this sort of dispute can be enormous. One person can hold up the sale of a house, there can be fights over who gets what share of a stock account, and as a result, the breaking-up process can be fraught with arguments, legal bills, and interminable delay. If the conflicts can't be resolved amicably, the legal disputes can eat up a hefty portion of the asset, and lost rental income or stock investment potential can seriously deplete both parties' net worth.

The emotional problems can be equally dire. These battles take several forms, depending on the particular factual dynamics of the break-up. If there's a legitimate belief that there was, in fact, an agreement which one partner is breaching, this will trigger a sense of betrayal and anger which can block most reasonable discourse. And, if one partner believes that his or her ex is unconsciously re-constructing what occurred to meet their immediate financial needs or emotional agendas, this too will create a terrible sense of betrayal. If one person contends that there was never any genuine agreement when the property was acquired, this by itself can engender a devastating sense of confusion, self-doubt and regret. Imagine hearing your ex-lover say to you "If only I had known how you envisioned our financial arrangement, I never would have stayed with you so long."

Keep in mind that since two people are involved in these battles, there are multiple levels of reality that need to be worked with in order to avoid these conflicts. First, each individual needs to be honest, brutally so, about his or her own expectations and understandings. If you are only contributing the down payment because you expect your partner to carry more of the monthly obligation, say so. If you are making a gift of the down payment and don't expect any reimbursement, have the courage to declare this from the outset. On the other hand, if you consider your contribution a loan which should be repaid if a conflict arises, state those terms loud and clear. Remember, a loan is something which gets paid back -- a gift isn't.

Coming to terms with your own feelings and opinions is fairly difficult, as you may discover that you -- or your partner -- are less generous or more needy than you had hoped. Mixed feelings are par for the course. But beyond this self-analysis, it is equally critical that you flesh out where the two of you stand jointly on these important issues. And, if it turns out that you have incompatible beliefs about financial matters, it is critical that you resolve these differences before you proceed with the transaction. If one partner is only willing to purchase the house if the down payment is a gift to the "family" and the other one insists on full repayment, it may be premature to close the deal.

The message of this Alert is that before you make any significant contribution to property in excess of what is legally yours on paper, you must enter into a conversation with your partner. You need to face the possibility that your love may not last forever, and that either death or dissolution will, one day, bring your relationship to an end. If you don't face these facts now and have a frank discussion of what your underlying assumptions are about your joint assets, a dissolution may end up being far nastier than it needs to be. Avoiding the issue in the hope that you will be together forever is only likely to create more problems, now and in the future.

For those wanting to do further research in these and other areas of interest, check out these valuable legal resources on the internet:
This is the site of Boston's Gay & Lesbian Advocates and Defenders, an excellent public-interest law firm serving the gay community. GLAD also recently issued Guidelines for resolving child custody disputes in our community.
This site features news on the efforts in France to establish a broad network of legal protections and financial benefits to domestic partners.,
This sites features current news and articles compiled by the National Center for Lesbian Rights
This site offers the monthly Lesbian/Gay Law Notes, a newsletter published by the New York lesbian/gay bar association:
The Queer Resources Directory is an excellent site, with links to a wide variety of political, social and legal groups.
This is the site of the Partners Task Force, a wonderful Seattle-based group which is working to expand support for same-sex couples.
This site offers an on-line academic publication, Sexual Orientation and the Law Journal, with articles on legal issues faced by lesbians and gay men.
This site contains a wealth of resources for couples including essays, access to decisions and statutes worldwide, and directories of attorneys.

Legal Disclaimer

General information provided at this site should not be treated as legal advice applicable in your particular situation. Every situation presents its own facts and circumstances, and the law may be very different depending upon where you live. By accessing this site, you are acknowledging that Frederick Hertz is not agreeing to act for you in any capacity nor providing you with any legal advice, and that you are not a client of Frederick Hertz. If you reside in California and wish to retain the services of Frederick Hertz, you may contact him at and make an appointment to meet with him.