Text of HI SB 231 (2012)

THE SENATE S.B. NO. 231 TWENTY-SIXTH LEGISLATURE, 2011 STATE OF HAWAII A BILL FOR AN ACT relating to civil unions. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII: SECTION 1. The legislature recognizes that the State has an essential duty to its people to provide equal protection under the law pursuant to article I, section 5 of the Hawaii State Constitution. The State did not create marriage or the traditional nuclear family; rather the State, over time, has woven into our laws a collection of rights and benefits to support and sanction traditional marriage. This collection of rights and benefits has provided substantial advantages to married couples, but the duty of equal protection mandates that these rights and benefits may not be exclusive or be denied to similarly situated individuals in loving and committed relationships who are not eligible to marry or for whom marriage is not feasible. Accordingly, to meet our constitutional obligation of equal protection to Hawaii's people, the legislature believes that the same rights, benefits, protections, and responsibilities under state law, whether derived from statutes, administrative rules, court decisions, the common law, or any other source of Hawaii law, that are currently granted to married couples must also be extended to certain other individuals in loving and committed relationships. The legislature also acknowledges the traditional and special role of marriage in our society and seeks to protect it by establishing a new and separate status for these other loving and committed relationships. In order to both respect traditional marriage and provide equity to other couples, it is the intent of the legislature to recognize civil unions in Hawaii. The purpose of this Act is to provide such equality of rights, benefits, protections, and responsibilities to loving and committed relationships between certain other individuals who are not eligible to marry or for whom marriage is not feasible by recognizing and adopting civil unions in Hawaii. By establishing the status of civil unions in our State, it is not the legislature's intent to revise the definition or eligibility requirements of marriage under chapter 572, Hawaii Revised Statutes. PART I CIVIL UNIONS; POLICY SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows: "Chapter civil unions § -1 Definitions. As used in this chapter, unless the context otherwise requires: "Agent" means the person or persons appointed as an agent or agents by the department pursuant to section ‑7. "Civil union" means a union between two individuals established pursuant to this chapter. "Department" means the department of health. "Director" means the director of health. "Partner" means an individual who is a party to a civil union established pursuant to this chapter. § -2 Rights, benefits, protections, and responsibilities. Partners to a civil union lawfully entered into pursuant to this chapter shall have all of the same rights, benefits, protections, and responsibilities under law, whether derived from statutes, administrative rules, court decisions, the common law, or any other source of Hawaii law, as are granted to those who contract, obtain a license, and are solemnized pursuant to chapter 572, including but not limited to the rights, benefits, protections, and responsibilities described in the following: (1) Chapter 87A, relating to the Hawaii employer-union health benefits trust fund; (2) Chapter 431, the insurance code; (3) Chapter 572D, the uniform premarital agreement act; and (4) Chapter 580, relating to annulment, divorce, and separation. The foregoing is not intended to constitute an exhaustive list of rights, benefits, protections, and responsibilities applicable to partners to a civil union. § -3 Other jurisdictions. All unions entered into in other jurisdictions between two individuals not recognized under section 572-3 shall be recognized as civil unions, provided that the relationship meets the eligibility requirements of this chapter, has been entered into under the laws of that jurisdiction, and can be documented. § -4 Applicability to other laws. A party to a civil union shall be included in any use of the terms "spouse", "husband", "wife", "widow", "widower", "family", "immediate family", "dependent", "next of kin", and other terms that denote or describe the spousal or family relationship, including but not limited to "married" and "marriage" and related terms, as those terms are used throughout the law, unless the context clearly indicates otherwise. § -5 Eligibility to enter into a civil union. A person shall be eligible to enter into a civil union only if: (1) The person is not a partner in another civil union or a spouse in a marriage; (2) The person is at least eighteen years of age; (3) The person's consent has not been obtained by force, duress, or fraud; (4) The person is not afflicted with a loathsome disease concealed from, and unknown to, the other proposed partner in the civil union; and (5) The person does not stand in relation to the other proposed partner in the civil union as ancestor and descendant of any degree whatsoever, siblings of the half as well as to the whole blood, uncle and niece or nephew, aunt and niece or nephew, whether the relationship is the result of the issue of parents married or not married to each other. § -6 Persons under control of conservator or guardian. (a) No civil union license may be issued to any applicant under the supervision or control of a conservator or guardian, appointed in accordance with chapter 560, unless the written consent of the conservator or guardian, signed and notarized, is filed with the agent. (b) Any person who enters into a civil union without the consent provided for in subsection (a) shall acquire no rights by that civil union in the property of any person who was under the control or supervision of a conservator or guardian at the time the civil union was entered into. § -7 Civil union license; agent to grant; fee. (a) The department shall appoint, and at its pleasure remove, one or more suitable persons as agents authorized to grant civil union licenses under this chapter in each judicial circuit; provided that the agent or agents appointed under section 572-5(a) shall also grant licenses in accordance with this section. The agents may issue licenses from any state facility when deemed necessary by the director. Any agent appointed under this subsection and receiving an application for a civil union license shall collect from the applicant for the license $60, of which the agent, except those provided for in subsection (b), shall retain $9 for the agent's benefit and compensation and shall remit $51 to the director of health. Remittances collected under this subsection shall be deposited and apportioned in the same manner as prescribed in section 572-5(a). (b) The department may appoint, as regular employees under the civil service and classification laws, the number of suitable persons as agents authorized to grant civil union licenses for whom provision has been made in the general appropriation act; provided that the agent or agents appointed under section 572-5(b) shall also grant licenses in accordance with this section. In the case of these agents, the full amount collected from applicants shall be remitted to the director of health. Remittances collected under this subsection shall be deposited and apportioned in the same manner as prescribed in section 572-5(b). (c) Every agent appointed under this section shall administer the oaths required by this chapter to be taken. (d) The department or its authorized agents shall furnish to each applicant for a civil union license a brochure explaining rubella, the risks of infection with rubella during pregnancy, and how to seek testing and immunization. The department or its authorized agents shall also furnish to each applicant for a civil union license information, to be provided by the department, relating to population stabilization, family planning, birth control, fetal alcohol and drug syndromes, and acquired immune deficiency syndrome (AIDS), including the availability of anonymous testing for human immunodeficiency virus (HIV) infection at alternate test sites, provided that the information is available. (e) In addition to the fee prescribed under subsection (a), the agent, except those provided for in subsection (b), shall collect from the applicant for the license a surcharge of $5, of which the agent shall retain the full amount for the agent's additional benefit and compensation. § -8 Application; license; limitations. (a) To secure a license to enter into a civil union, the persons applying for the license shall appear personally before an agent authorized to grant civil union licenses and shall file with the agent an application in writing. The application shall be accompanied by a statement signed and sworn to by each of the persons, setting forth: the person's full name, date of birth, social security number, and residence; their relationship, if any; the full names of parents; and that all prior marriages or civil unions, if any, have been dissolved by death or dissolution. If all prior marriages or civil unions have been dissolved by death or dissolution, the statement shall also set forth the date of death of the last prior spouse or civil union partner or the date and jurisdiction in which the last decree of dissolution was entered. The statement shall also contain a provision attesting that each prospective partner consents to the jurisdiction of the family courts of Hawaii for the purpose of an action to obtain a decree of annulment, divorce, or separation concerning the civil union, or any other order authorized under chapter 580, or for any other proceeding related to the partners' rights and obligations, even if one or both partners do not reside in, or maintain a domicile in, this State. Any other information consistent with the standard marriage or civil union certificate as recommended by the Public Health Service, National Center for Health Statistics, may be requested for statistical or other purposes, subject to approval of and modification by the department; provided that the information shall be provided at the option of the applicant and no applicant shall be denied a license for failure to provide the information. The agent shall indorse on the application, over the agent's signature, the date of the filing thereof and shall issue a license which shall bear on its face the date of issuance. Every license shall be of full force and effect for thirty days commencing from and including the date of issuance. After the thirty-day period, the license shall become void and no civil union solemnization shall be performed thereon. It shall be the duty of every person, legally authorized to grant licenses to enter into a civil union, to immediately report the issuance of every civil union license to the agent of the department in the district in which the license is issued, setting forth all facts required to be stated in the manner and on a form as the department may prescribe. § -9 Applicant apparently under age. If any applicant for a license to enter into a civil union appears to any agent to be under the age of eighteen years, the agent shall, before granting a license to enter into the civil union, require the production of a certificate of birth or other satisfactory proof showing the age of the applicant. § -10 Solemnization; license to perform; no requirement to join persons in a civil union. (a) A civil union shall become valid only upon completion of a solemnization by a person licensed in accordance with this section. (b) A license to solemnize civil unions may be issued to, and the civil union rite may be performed and solemnized by any minister, priest, or officer of any religious denomination or society who has been ordained or is authorized to solemnize civil unions according to the usages of the denomination or society, or any religious society not having clergy but providing solemnization in accordance with the rules and customs of that society, or any justice or judge or magistrate, active or retired, of a state or federal court in the State, upon presentation to the person or society of a license to enter into a civil union, as prescribed by this chapter. The person or society may receive the price stipulated by the parties or the gratuity tendered. (c) Nothing in this section shall be construed to require any person authorized to perform solemnizations under chapter 572 or civil unions under this chapter to solemnize a civil union, and no authorized person who fails or refuses for any reason to join persons in a civil union shall be subject to any fine or other penalty for the failure or refusal. (d) No agent may solemnize a civil union; nor may any assistant or deputy of the agent solemnize a civil union. (e) No person shall solemnize a civil union without first having obtained a license from the department. § -11 Record of solemnization; civil unions, reported by whom; certified copies. (a) Recordkeeping. Every person authorized to solemnize a civil union shall make and preserve a record of every civil union solemnized by the person, comprising the names of the persons entering into the civil union, their place of residence, and the date of their civil union. Every person authorized to solemnize a civil union, who neglects to keep a record of any civil union solemnized by that person shall be fined $50. (b) Civil unions, reported by whom. It shall be the duty of every person who is legally authorized to perform the civil union solemnization to report within three business days every civil union solemnization, performed by the person, to the agent of the department in the district in which the civil union takes place setting forth all facts required to be stated in a standard certificate of civil union, the form and contents of which shall be prescribed by the department. (c) Certified copies of certificate of civil union. The department shall deliver one certified copy of the certificate of civil union or the contents or any part thereof as provided in section 338-13 to the persons who entered into the civil union. The certificate shall be prima facie evidence of the fact of the civil union in any proceeding in any court. The department shall upon request, furnish to any applicant additional certified copies of the certificate of civil union or any part thereof. Copies of the contents of any certificate on file in the department, certified by the department, shall be considered for all purposes the same as the original. The department may prescribe reasonable fees, if any, to be paid for certified copies of certificates. § -12 Revocation or suspension of licenses to solemnize. Any license to solemnize civil unions issued pursuant to section ‑10 may be revoked or suspended by the department, if the holder of the license has failed to comply with the applicable provisions of this chapter or of the rules of the department or no longer qualifies to solemnize civil unions under the applicable provisions of this chapter or of the rules of the department. § -13 Delivery of records to department; penalty. Whenever any agent authorized to grant civil union licenses ceases to be an agent, or is directed to cease granting civil union licenses by the department, or leaves the State, the agent shall deliver to the department all the agent's records of civil union licenses. Upon the death of the agent, the records shall be delivered to the department by the agent's personal representative or other legal representative. Whenever any person holding a license to perform the civil union solemnization is directed to do so by the department, or whenever the license is canceled or otherwise terminated, or upon the departure from the State of the person, the person shall deliver to the department all the person's records of civil unions, or upon the death of the person, the records shall be delivered to the department by the person's personal representative or other legal representative. Any person violating this section shall be fined not more than $500. § -14 Rules and regulations. The director of health may adopt rules and regulations as may be necessary or appropriate to carry out the provisions of this chapter." PART II CONFORMING AMENDMENTS SECTION 3. Chapter 231, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows: "§231‑ Effect of civil union. Notwithstanding federal law to the contrary, all provisions of the Internal Revenue Code operative for the purpose of this chapter that apply to a husband and wife, spouses, or person in a legal marital relationship shall also apply with the same force and effect to partners to a civil union as if they were "husband and wife", "spouses", or other terms that describe persons in a legal marital relationship." SECTION 4. Chapter 235, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows: "§235‑ Effect of civil union. Notwithstanding federal law to the contrary, all provisions of the Internal Revenue Code operative for the purpose of this chapter that apply to a husband and wife, spouses, or person in a legal marital relationship shall also apply with the same force and effect to partners to a civil union as if they were "husband and wife", "spouses", or other terms that describe persons in a legal marital relationship." SECTION 5. Chapter 236D, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows: "§236D‑ Effect of civil union. Notwithstanding federal law to the contrary, all provisions of the Internal Revenue Code operative for the purpose of this chapter that apply to a husband and wife, spouses, or person in a legal marital relationship shall also apply with the same force and effect to partners to a civil union as if they were "husband and wife", "spouses", or other terms that describe persons in a legal marital relationship." SECTION 6. Section 572C-4, Hawaii Revised Statutes, is amended to read as follows: "[[]§572C-4[]] Requisites of a valid reciprocal beneficiary relationship. In order to enter into a valid reciprocal beneficiary relationship, it shall be necessary that: (1) Each of the parties be at least eighteen years old; (2) Neither of the parties be married, a partner in a civil union, nor a party to another reciprocal beneficiary relationship; (3) The parties be legally prohibited from marrying one another under chapter 572; (4) Consent of either party to the reciprocal beneficiary relationship has not been obtained by force, duress, or fraud; and (5) Each of the parties sign a declaration of reciprocal beneficiary relationship as provided in section 572C‑5." SECTION 7. Section 572C-7, Hawaii Revised Statutes, is amended as follows: 1. By amending its title to read: "[[]§572C-7[]] Termination of reciprocal beneficiary relationship; filing fees and records; termination upon marriage[.] or civil union." 2. By amending subsections (c) and (d) to read: "(c) Any marriage or civil union license subsequently issued by the department to any individual registered as a reciprocal beneficiary shall automatically terminate the individual's existing reciprocal beneficiary relationship. (d) If either party to a reciprocal beneficiary relationship enters into a legal marriage[,] or civil union, the parties shall no longer have a reciprocal beneficiary relationship and shall no longer be entitled to the rights and benefits of reciprocal beneficiaries." SECTION 8. Chapter 584, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows: "§584‑ Child of parents in a civil union. The rights and obligations of civil union partners with respect to a child of whom either partner becomes the parent during the term of the civil union shall be the same as those of a married couple with respect to a child of whom either spouse or partner becomes the parent during the marriage, including the presumption that a partner of a civil union is presumed to be the natural parent of a child conceived by the other partner where the biological parent and the nonbiological partner are or have been in a civil union and: (1) The child is born while the civil union is in effect, or within three hundred days after the civil union is terminated by death, annulment, declaration of invalidity, or divorce, or after a decree of separation is entered by a court; or (2) The nonbiological partner has shown indicia of commitment to be a parent to the child." SECTION 9. Section 580-1, Hawaii Revised Statutes, is amended to read as follows: "§580-1 Jurisdiction; hearing. Exclusive original jurisdiction in matters of annulment, divorce, and separation, subject to section 603-37 as to change of venue, and subject also to appeal according to law, is conferred upon the family court of the circuit in which the applicant has been domiciled or has been physically present for a continuous period of at least three months next preceding the application therefor. No absolute divorce from the bond of matrimony shall be granted for any cause unless either party to the marriage has been domiciled or has been physically present in the State for a continuous period of at least six months next preceding the application therefor. A person who may be residing on any military or federal base, installation, or reservation within the State or who may be present in the State under military orders shall not thereby be prohibited from meeting the requirements of this section. Notwithstanding the foregoing, the family court of each circuit court shall have jurisdiction over all proceedings relating to the annulment, divorce, and separation of a civil union entered into in this State, even if neither civil union partner is a resident of, or maintains a domicile in, Hawaii at the time the proceedings are filed." SECTION 10. Section 580-3.5, Hawaii Revised Statutes, is amended to read as follows: "[[]§580-3.5[]] Personal judgment against absent defendant. (a) In any proceeding in the family court, the court shall have the power to render a personal judgment against a party who is outside of this State and over whom jurisdiction is acquired by service of process in the manner set forth in section 580-3(b) or (c), if the party was personally served with a copy of the summons or order to show cause and complaint or other pleading upon which the judgment is based and if the party was a domiciliary of this State (1) at the time that the cause of action which is the subject of the proceeding arose, or (2) at the time of the commencement of the proceeding, or (3) at the time of service. (b) Notwithstanding subsection (a), in any proceeding in the family court, the court shall have the power to render a personal judgment against a party who is outside of this State and over whom jurisdiction is acquired by service of process in the manner set forth in section 580-3(b) or (c), if the party was personally served with a copy of the summons or order to show cause and complaint or other pleading upon which the judgment is based and if the parties to the proceeding entered into a civil union in this State pursuant to chapter , which civil union is the basis of the proceeding." SECTION 11. Section 584-1, Hawaii Revised Statutes, is amended to read as follows: "[[]§584-1[]] Parent and child relationship defined. As used in this chapter, "parent and child relationship" includes the legal relationship existing between a child and the child's natural mother, between a child and father or mother whose relationship as parent and child is established under this chapter, or between a child and the child's adoptive parents, incident to which the law confers or imposes rights, privileges, duties, and obligations." SECTION 12. Section 572-1.6, Hawaii Revised Statutes, is repealed. ["[§572-1.6] Private solemnization not unlawful. Nothing in this chapter shall be construed to render unlawful, or otherwise affirmatively punishable at law, the solemnization of same-sex relationships by religious organizations; provided that nothing in this section shall be construed to confer any of the benefits, burdens, or obligations of marriage under the laws of Hawaii."] PART III GENERAL PROVISIONS SECTION 13. In codifying the new sections added by section 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the numbers used in designating the new sections in this Act. SECTION 14. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date. SECTION 15. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored. SECTION 16. This Act shall take effect upon its approval; provided that the new sections designated as sections ‑2, ‑3, ‑8, and ‑10, Hawaii Revised Statutes, as established by section 2 of this Act, and sections 6, 7, and 12 of this Act shall take effect one hundred twenty days after the date of approval of this Act; provided further that sections 3, 4, and 5 of this Act shall apply to taxable years beginning after December 31, 2011. INTRODUCED BY: _____________________________ Report Title: Civil Unions Description: Extends the same rights, benefits, protections, and responsibilities of spouses in a marriage to partners in a civil union. The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.