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Civil Union Act To Take Effect In June

The Illinois Religious Freedom Protection and Civil Union Act (the “Act”) goes into effect on June 1, 2011. The purpose of the Act is “to provide adequate procedures for the certification and registration of a civil union and provide persons entering into a civil union with the obligations, responsibilities, protections, and benefits afforded or recognized by the law of Illinois to spouses.” The “religious freedom” in the Act is the fact that no “religious body” will be required to solemnize or officiate a civil union.

How is a civil union established? A civil union can be established by two persons of the same sex or the opposite sex. As with marriage, certain civil unions are prohibited. Minors, persons who are already married or in a civil union, and family members cannot enter into civil unions. The couple must complete an application. The application will be issued by the Director of Public Health, presumably sometime before June 1. The application must include: (1) the name, sex, occupation, address, social security number, date and place of birth of each party to the civil union; (2) name and address of the parents or guardian of each party; (3) whether the parties are related to each other and, if so, their relationship; and (4) in the event either party was previously married or entered into a civil union or a substantially similar legal relationship, provide the name, date, place and the court in which the marriage or civil union or substantially similar legal relationship was dissolved or declared invalid or the date and place of death of the former spouse or of the party to the civil union or substantially similar legal relationship.

The couple must bring the application to the County Clerk in the county of their residence. In addition to the application, the county will require an affidavit from the parties stating that they are not prohibited from entering into the civil union. Of course, there will also be a fee. Once these items have been completed, the county clerk will issue the couple a license and a certificate. The license becomes effective the day after it is issued and remains effective for sixty days. The certificate must be completed and returned to the County Clerk within ten days of the civil union. The certificate can be completed by anyone who is authorized to certify a marriage certificate, such as a judge, retired judge or religious officiant. In addition, in counties with a population of more than 2,000,000, the County Clerk can certify civil unions.

So, what does this mean for couples who enter a civil union? In Illinois, they are entitled to all of the rights of a married couple. These include property rights, such as inheritance and pension benefits, personal rights, such as making medical decisions, and other legal rights, such as not being required (or allowed) to testify against each other in court and being able to file a wrongful death action. These rights do not extend to benefits governed by the federal government, such as income and estate taxes, social security, etc. These rights will also likely be disregarded by states that do not authorize civil unions.

As you can see, the process of forming a civil union is nearly identical to the process for getting married. The process for terminating a civil union is identical to the process of terminating a marriage. Civil union partners must be divorced by a court in accordance with the Illinois Marriage and Dissolution of Marriage Act. Upon dissolution, the assets of a civil union will be divided in the same manner that marital assets are divided, and one party may be required to pay maintenance to the other.

Although the Act addresses many issues, as with married couples, civil union couples should still have basic legal documents – wills and powers of attorney for property and medical decisions. One spouse is not legally entitled to deal with the property of the other spouse without a power of attorney or guardianship, and neither will a civil union partner be entitled to do so. In addition, a civil union partner may own property in another state or may move and die in another state that does not acknowledge civil unions. Civil union couples should also consider “premarital” agreements.

So what does this mean to employers? An employer must treat a civil union partner in the same manner as a spouse. The same insurance benefits must be available to both types of couples. Employers must also check with their pension or retirement account administrators to determine how their plans are affected. Many plans are governed by federal laws, including ERISA, which preempt state laws, so this will be a complicated issue. As with any new law, answers to many questions will become clear over time, while some may need to be addressed by additional legislation.

by Sarah Delano Pavlik
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