California case: you’re registered when you’re not

California case: you’re registered when you’re not

We have seen that Tassie, Victoria and now the ACT have put in place (or are about to) a registration scheme for de facto and same sex couples.

One of the questions to be asked is: what if I thought I was registered because my partner told me so, but in fact I was never registered because my partner never bothered to register us despite saying otherwise?

Although there is no Australian caselaw on point, a case taken by Lambda Legal in California under the Domestic Partner Act says that you can assume that you are covered. Of course, the key question is that you are believed, and this will come down to your credibility and any corroborative evidence.

The case, Ellis v. Arriaga, involved exactly this scenario- Daniel Ellis filed a petition to dissolve his domestic partnership with David Arriaga, only for Mr Arriaga to defend it on the basis that the partnership had never been registered, and therefore could not be dissolved.

The California Court of Appeal held that under the California Domestic Partner Act,

a person’s reasonable, good faith belief that his or her domestic partnership was validly registered entitles that person to the rights and responsibilities of a registered domestic partner, even if the registration never took place.

The California Legislature’s stated purpose in enacting the Domestic Partner Act was to extend to registered domestic partners all the rights, benefits, and
obligations of married persons, with the exception of the rights, benefits, and obligations accorded only to married persons……..Under the equitable putative spouse doctrine, a person’s reasonable, good faith belief that his or her marriage is valid entitles that person to the benefits of marriage,even if the marriage is not, in fact, valid. …It … extends to those who intended to register their domestic partnerships under the Domestic Partner Act and had a reasonable,
good faith belief that the registration had occurred, despite the failure to properly
complete the registration. As a result, a person may plead and attempt to prove that he or she is entitled to the rights and responsibilities of a registered domestic partner under these circumstances.

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Family Law Section Law Council of Australia Award
Member of Queensland law society
Family law Practitioners Association
International Academy of Family Lawyers - IAFL
Mediator Standards Board