The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.
Issue link: https://kentuckybenchandbar.epubxp.com/i/245872
FEATURE: LGBT "CAN YOU CREATE A LEGAL BOND FOR SAME-SEX COUPLES IN KENTUCKY?" By: Madeleine T. Baugh Kentucky prohibits same-sex marriage by constitutional amendment and by statute.1 The constitutional amendment not only prohibits same-sex marriage, it also prohibits any legal status identical or substantially similar to marriage for unmarried individuals. In addition, a marriage between members of the same sex which occurs in another jurisdiction is void as against public policy in Kentucky.2 So can we as Kentucky attorneys nevertheless assist our clients who live in committed, albeit unmarried, relationships with a member of the same sex in creating a legally enforceable bond between them? Can we as attorneys assist our clients who have been legally married in a state that permits same-sex marriage in creating a legally enforceable bond in Kentucky? If the bond is contractual in nature, the answer should be a qualified yes. 12 Competent adults may mutually agree to undertake mutual, concrete obligations to one another with adequate and legal consideration. However, this author has found no reported cases in Kentucky directly addressing such contracts between same-sex couples. Our clients should be told and made to acknowledge that such contracts are untested in Kentucky courts. B&B; • 1.14 Kentucky courts do recognize the ability of unmarried couples who cohabit to contract with each other and to establish business partnerships and joint ventures with one another. However, there is no direct line of case law regarding its application to same-sex couples Unlike married persons, no statutory set of default rules exist for unmarried persons, so the court looks to a variety of general legal principles, from contract and partnership law as well as general property law, to determine the outcome of any dispute. Given the wide variety of legal rules that may apply, some uncertainty exists on the outcome of any given case." 3 Can we argue that same-sex couples are unmarried couples under Kentucky law? In 1997, the Kentucky Court of Appeals recognized same-sex couples as unmarried couples in an intimate relationship under domestic violence statutes in Ireland v. Davis, 957 S.W.2d 310 (Ky. App. 1997). John Ireland appealed an order of the Fayette Circuit Court affirming the order of the Fayette District Court dismissing a domestic violence order (DVO) it had entered against his partner, Blake Allen Davis. Ireland had obtained a DVO against Davis from Fayette District Court. Later, when Ireland filed an affidavit alleging that Davis had violated the terms of the DVO, one judge signed a show cause warrant and another judge set it aside, dismissing the entire domestic violence proceeding on the ground that the Court lacked jurisdiction under the domestic violence statutes (KRS 403.715 - .785) because Ireland and Davis were of the same gender. After Fayette Circuit Court affirmed the dismissal order of the Fayette District Court, Ireland appealed to the Kentucky Court of Appeals. The Court of Appeals reversed the orders of both courts and remanded the case to Fayette District Court for reinstatement of the domestic violence proceedings. The Court held that the domestic violence statutes afford protection to same-sex couples, just as they do to other enumerated couples in KRS 403.725, rejecting the arguments that the domestic violence statute did not apply to same-sex couples. The Court stated that "When the domestic violence statutes were amended in 1992, the General Assembly extended protection from domestic violence to a new class of individuals – members of an unmarried couple who either are living together or have lived together, but who do not have a child in common" Ireland, supra. The Court found the language of the statute to be unambiguous, even though it is gender-neutral and does not specifically include or specifically exclude same-sex couples from its scope. Further, it stated that the General Assembly did not give preferential treatment to same-sex couples or homosexuals; rather it provided for equal treatment under the law for samesex or homosexual victims of domestic violence.4 In Ireland the statute provided the framework for its decision, but the Court recognized the same-sex couple as an unmarried couple living together or having lived together without same-sex couples having been specifically named in the statute. The Court recognized the same-sex couple as unmarried cohabitants.5 Kentucky does not provide by statute or by common law for contractual rights or obligations to be implied from the existence of unmarried cohabitation.6 Kentucky courts have taken great care over time not to obviate by judicial fiat Kentucky's statutory and common law decisions against the recognition of common law marriage between a heterosexual couple.7 Kentucky courts will surely take similar care not to create any legal status identical or substantially similar to marriage for same-sex couples in contravention of Ky. Const. 233A and the statutes prohibiting same-sex marriage. The Supreme Court of Kentucky in