Civil Union in New Jersey from a Vital Statistics Perspective
Joseph A. Komosinski
New Jersey was one of the first states to adopt legislation prohibiting discrimination based on sexual orientation and to establish the formal recognition of same sex couples in January 2004 via the Domestic Partnership Act. Domestic partnership was implemented on July 12, 2004 and has resulted in the registration of 4,632 domestic partnerships to date. This total is comprised of 2,726 female/female couples, 1,802 male/male couples, and 104 male/female couples 62 years of age or older. These couples were granted rights and benefits afforded them under the Domestic Partnership Act, however, the rights and benefits did not mirror those of heterosexual couples united in marriage.
In the landmark decision of Lewis v. Harris set forth by the New Jersey Supreme Court (October 25, 2006) the court held that the equal protection guarantee of Article 1, paragraph 1 of the State Constitution was violated by denying rights and benefits to committed same-sex couples which were statutorily given to heterosexual couples. The Court stated that the “State can fulfill that constitutional requirement in one of two ways. It can either amend the marriage statutes to include same-sex couples or enact a parallel statutory structure by another name, in which same-sex couples would not only enjoy the rights and benefits, but also bear the burdens and obligation of civil marriage.” Id. at 463.
In response to the Court’s ruling the Legislation provided same-sex couples with the same rights and benefits as heterosexual couples who chose to enter into marriage by establishing the Civil Union Act which amends the marriage statutes to include the unions entered into by same-sex couples and becomes effective on February 19, 2007.
Under the amendments to the existing marriage statutes the Legislation defines a Civil Union Couple as two persons who have established a civil union pursuant to the Civil Union Act and defines “Civil Union” to mean the legally recognized union of two eligible individuals of the same sex who have established pursuant to the Civil Union Act.
In order to be deemed eligible to enter into a civil union the two persons must be of the same sex, and be at least 18 years of age, except as provided by statutory language permitting minors under the age of 18 with parental consent or under the age of 16 with parental consent and judicial approval. The two persons must not be party with another person to a union recognized by the state; marriage, civil union or domestic partnership. Same-sex couples currently registered in a domestic partnership may enter into a civil union with the same partner and such entry into a civil union will terminate the previous domestic partnership. Unlike Domestic Partnership there is no requirement that the couple reside in New Jersey or be a member of the State Retirement Plan.
Couples were permitted to obtain applications for Civil Unions prior to the enactment date but could not file the application until 12:01 AM on Monday February 19, 2007. The application for a Marriage or Civil Union can be obtained from any local registrar’s office or online from the State Registrar’s Office at: http://www.state.nj.us/health/vital/forms.shtml .
Couples who are residents of the State and seek to apply for a Marriage or Civil Union license may file the application in the municipality in which either party resides and the resulting license is valid for use in any municipality in the State of New Jersey. If neither party is a resident of the State, the application must be files in the municipality in which the proposed Marriage or Civil Union ceremony is to be performed and the resulting license is valid only in the issuing municipality.
The fee for applying for a Marriage or Civil Union license is $28, collected at the time of application. Once filed an application is valid for a period of six months, except that if, at the time of application, the couple indicates a request to have the six month period extended to a maximum of one (1) year.
A Marriage or Civil Union license cannot be issued to a minor under the age of 18 years, unless the parents or guardian of the minor certify in the presence of two reputable witnesses, their consent which shall be delivered to the licensing officer. If either of the individuals required to provide consent is of unsound mind their consent shall not be required. When a minor is under the age of 16, the consent required above must be approved in writing by any judge of the Superior Court, Chancery Division, Family Part and said approval must be filed with the licensing officer.
Following the 72 hour waiting period the Marriage or Civil Union license may be issued and is valid for a period of 30 days. A Superior Court judge has the authority to waive all or part of the 72 hour waiting period in cases of emergency, upon satisfactory proof.
Each judge of the United States Court of Appeals of the Third Circuit, each judge of a federal district court, United States magistrate, judge of a municipal court, judge of the Superior Court, judge of a tax court, retired or active judge of the Superior Court or Tax Court, the former County Court, the former County Juvenile and Domestic Relations Court, or the former County District Court was has resigned in good standing, surrogate of any county, county clerk and any mayor or deputy mayor when authorized by the mayor, or chairman of any township committee or village president of this state and every minister of every religion are hereby authorized to solemnize marriage or civil union between such persons as may lawfully enter into matrimonial relation or civil union and every religious society, institution or organization in this State may join together in marriage or civil union such persons according to the rules and customs of the society, institution or organization.
There is no requirement that a public official with the authority to solemnize marriages and civil unions do so, however, Attorney General Rabner’s Legal Opinion advises that public officials who elect to exercise their authority to solemnize marriages must also solemnize civil unions. Furthermore, the legal opinion advised the position of the Attorney General and the courts that religious institutions are not places of public accommodation under the Law Against Discrimination and as the performance of a religious ceremony is not necessary for the solemnization of either a marriage or a civil union, the fact that some religious figures may solemnize marriage, but not civil unions, will not affect the equal availability of marriages and civil unions under the law.
Couples requesting to renew their vows/place on file a certificate of Remarriage or Reaffirmation of Civil Union may do so provided the couple can provide proof that they previously entered into a Marriage or a Civil Union.
The dissolution of Civil Unions follows the same procedures and are subject to the same substantive rights and obligations that are involved in the dissolution of a marriage. The laws of domestic relations, including annulment, premarital agreements, separation, divorce, child custody and support, property division and maintenance and post-relationship spousal support, shall apply to civil union couples. Civil Union Couples may modify the terms, conditions or effects of their civil union in the same manner and to the same extent as married persons who execute an antenuptial agreement or other agreement recognized and enforceable under the law, setting forth particular understandings with respect to their union.
The rights of Civil Union couples with respect to a child of whom either 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 in a civil union couple becomes the parent during the marriage
Effective with the implementation of the Civil Union Act, Domestic Partnerships may only be registered by individuals who are each 62 years of age or older and meet all other requirements for being deemed eligible to register a Domestic Partnership. Domestic Partnerships may be registered by same sex or opposite sex couples. The fee for filing the Affidavit of Domestic Partnership is $28, collected at the time of application.
Civil Union couples shall have all the same benefits, protections and responsibilities under the law, whether they derive from statute, administrative or court rule, public policy, common law or any other source of civil law, as are granted to spouses in a marriage.
Whenever any law, rule, regulation, judicial or administrative proceeding or otherwise, reference is made to “marriage,” “husband,” “wife,” “spouse,” “family,” “immediate family,” “dependent,” “next of kin,” “widow,” “widower,” “widowed” or another word which in a specific context denotes a marital or spousal relationship, the same shall include a civil union.
A civil union relationship entered into outside of this State, which is valid under the laws of the jurisdiction under which the civil union relationship was created, shall be valid in this State.
Same sex couples who entered into a Domestic Partnership can enter into a civil union with the same partner by means of the civil union process established above. Once the couple enters into the Civil Union their previous Domestic Partnership is terminated and the rights of civil unions apply.
Same sex couples who entered into a Domestic Partnership and elect not to enter into a Civil Union are afforded the rights of Domestic Partners (Notice of Rights and Obligations) and not the rights of Civil Union couples. Their Domestic Partnership remains in effect as it was registered under the requirements of the law in place at the time they registered.
Prior to implementation of the Civil Union Act a female was afforded the right to assume the husband’s name following marriage, the husband wishing to assume the wife’s name or hyphenate his name was required to do so via a legal name change. Following enactment of the Civil Union Act, the Civil union couple may assume the name of their partner or each assumes the hyphenated version of the two names. Conversely, to ensure equal treatment under the law, a husband may assume the wife’s name or the hyphenated version of the two names, the same shall apply to the wife. Please note the hyphenated name is a description and does not require that a hyphen be inserted between the surnames. Domestic Partners are not permitted to assume the name of their partner, this must be executed via a court ordered legal name change.
The Civil Union Act established the New Jersey Civil Union Review Commission to evaluate the implementation, operation and effectiveness of the act; determine if additional protections are needed; collect information about the recognition and treatment of civil unions by other states and jurisdictions including the procedures for dissolution; evaluate the effect on same-sex couples, their children and other family members of being provided civil unions rather than marriage; evaluate the financial impact on the State of New Jersey of same-sex couples being provided civil unions rather than marriage; and review the Domestic Partnership Act and make recommendations whether this act should be repealed.
Any questions regarding the process for entering into a Civil Union or recording a Certificate of Civil Union can be addressed by contacting the State Bureau of Vital Statistics and Registration at (609) 292-4087, extension 505 or 506.