Answers to frequently asked questions about the new law and what it means for same-sex couples who live and work in, or visit, Hawai’i.
The Hawaiʻi Marriage Equality Act of 2013 (“Marriage Act”) passed the state legislature and was signed by Governor Abercrombie on November 13, 2013. The law takes effect on December 2, 2013. Below are answers to frequently asked questions about the new law and what it means for same-sex couples who live and work in, or visit, Hawaiʻi. These answers give general information not legal advice for any specific person or circumstances. Marriage is a serious legal commitment as well as an expression of love and personal dedication. Before getting married, couples should educate themselves about the legal consequences of marriage and should consult an attorney (and possibly a financial advisor or tax professional) if they have questions about their particular circumstances. At the end of this document, you will find contact information for organizations that can answer additional questions and help you find an attorney.
WHAT DID THE MARRIAGE EQUALITY ACT DO?
The Marriage Act allows same-sex couples to exercise the freedom to marry in Hawaiʻi on the same terms as different-sex couples. This means that same-sex couples will be eligible for the full range of rights, benefits, and protections granted to married couples under both state and federal law. The Act left in place the existing civil union law and the reciprocal beneficiaries law. If you and your partner have entered a civil union or are registered as reciprocal beneficiaries and wish to remain in that status, you are free to do so. However, if you decide to marry, your civil union or reciprocal beneficiary status will be terminated automatically when you get married.
In addition, the Marriage Act reiterates constitutional rights of religious freedom for clergy and faith communities, making clear that religious societies retain control over their religious practices and are free to determine their own rules about who they will marry. It further states that religious organizations may refuse to provide goods, services, or facilities for weddings that are inconsistent with their religious tenets.
WHEN CAN WE GET MARRIED?
The Marriage Act goes into effect on Monday, December 2, 2013. According to the Hawaiʻi Department of Health, same-sex couples can begin applying for marriage licenses on that date. Visit the Department of Health website for more information about timing and requirements for marriage licensing and ceremonies. You also may call the Health Department at (808) 586-4545.
WHO CAN GET MARRIED IN HAWAIʻI?
You may get married in Hawaiʻi if you both are at least 18 years old, neither of you is currently in a marriage or civil union, or registered as reciprocal beneficiaries, with someone other than the person you plan to marry. You cannot be more closely related than first cousins and if either of you is under supervision of a conservator or legal guardian, the conservator or guardian must consent. As with different-sex couples, if you are at least 16 but not yet 18, you can marry with parental permission or a court order. And if you are just 15, you can only marry with permission from your parents and a court order. You do not need to be a Hawaiʻi resident to marry in Hawaiʻi.
CAN WE STILL ENTER INTO A CIVIL UNION NOW THAT WE HAVE THE OPTION OF MARRIAGE?
Yes. The Marriage Act does not invalidate the Hawaiʻi civil union law. Visit the Hawaiʻi Department of Health website for more information about applying for a civil union license.
On the other hand, now that same-sex couples may marry in Hawaiʻi, they no longer are eligible to register as reciprocal beneficiaries because that status is available only to pairs of individuals who cannot marry. However, reciprocal beneficiary registrations will remain valid for same-sex partners who registered as reciprocal beneficiaries in the past and do not change their legal status now.
WHAT IF WE WANT TO MARRY BUT WE ALREADY ENTERED A CIVIL UNION OR REGISTERED AS RECIPROCAL BENEFICIARIES IN HAWAIʻI?
Your existing civil union or reciprocal beneficiary registration does not limit your ability to marry the same partner. If you want to marry your current civil union partner or reciprocal beneficiary, you do not have to dissolve your civil union or registration to enter into a marriage. Once your marriage is solemnized, your civil union or reciprocal beneficiary registration will terminate automatically and the rights you had from the prior status will continue with your marriage.
If you wish to marry someone other than your civil union partner or reciprocal beneficiary, you must first dissolve your civil union or terminate your registration. If the dissolution or termination is done within 30 days of your application for a marriage license, you will need to bring proof of the dissolution or termination to the marriage license agent.
Should you wish to remain in your civil union or reciprocal beneficiary registration and not marry, you can do so and your existing legal status will not be affected by the Marriage Act.
CAN WE MARRY IN HAWAIʻI IF WE ALREADY ENTERED INTO A CIVIL UNION OR A REGISTERED DOMESTIC PARTNERSHIP ELSEWHERE?
Yes, a couple that already have committed to each other in a civil union or registered domestic partnership (RDP) can marry each other. If you encounter any difficulty getting a license agent to grant you a marriage license because you already have a civil union or RDP, contact Lambda Legal’s Help Desk. If you entered into a marriage, civil union, or RDP in another state and now want to marry a different person, you must first dissolve the previous marriage, civil union, or RDP.
WHAT STEPS DO WE TAKE TO GET MARRIED?
First you must find someone to perform your marriage ceremony. Your “performer” must be licensed by the State of Hawaiʻi. As long as your performer is licensed, you do not need to select a performer from that list. However, if you select a performer from that list you are eligible for a temporary online marriage certificate three days after your ceremony, while you wait for your certified marriage certificate to be mailed to you (a process that typically takes about three weeks).
Next, you must apply for a marriage license. You can find an online application here. For same-sex couples this application will be available as of December 2, 2013. You can submit the application online, including payment of the $65.00 fee, or print out a PDF and bring it with you in person to a marriage license agent.
You and your partner must appear together in person before a marriage license agent to get your marriage license.
When you meet with your marriage license agent, you should bring with you:
- Proof of age
- A completed official application (available online). The application cannot be sent by email or U.S. mail. It must be given to the license agent in person with your proof of identification and age.
- $65.00 to pay for the license fee and administrative cost (this can be paid online or in person).
Your marriage license is issued when your application is approved by the marriage license agent. Once the license is issued there is no waiting period before the marriage can take place. The marriage license is valid throughout the State of Hawaiʻi for thirty days from the date of issuance.
Your marriage ceremony is called a “solemnization.” After your ceremony has taken place, your performer will confirm with the Department of Health that the solemnization has occurred. You will be mailed a certified copy of your marriage certificate after the Department of Health has recorded your marriage.
CAN I CHANGE MY NAME WITH MY MARRIAGE?
Yes, but it requires several steps. You should obtain a certified copy of your marriage certificate from the office of your marriage license agent. Using this document, you can apply to government agencies and businesses to update your records with your new name. First, bring a copy of your marriage certificate to your local Social Security Administration office. With your new Social Security card and marriage license you can apply for a new driver’s license and other identification.
IF WE DON’T GET MARRIED, BUT WE HAVE A CIVIL UNION OR RDP FROM ANOTHER STATE, HOW WILL HAWAIʻI TREAT OUR RELATIONSHIP?
Under Hawaiʻi’s civil union law, RDPs and civil unions from other states are treated as civil unions, so long as those unions were validly entered, the couple meets the requirements for a Hawaiʻi civil union, and the union can be documented. This is not changed by the Marriage Act. The rights and duties of civil union partners are the same as for spouses under Hawaiʻi law.
WE GOT MARRIED IN ANOTHER STATE, BUT OUR MARRIAGE WAS TREATED AS A CIVIL UNION WHEN WE CAME HOME TO HAWAIʻI. HOW WILL OUR OUT-OF-STATE MARRIAGE BE TREATED NOW?
One aim of the Marriage Act was to “ensure that there is no legal distinction between same-sex married couples and opposite-sex married couples with respect to marriage under the laws of this State.” Thus, just as with different-sex couples, so long as your out-of-state marriage is consistent with the laws and public policy of Hawaiʻi, your marriage now will be fully recognized under Hawaiʻi law. There is no need to marry again.
ONCE WE’RE MARRIED, WILL WE STILL NEED A SECOND-PARENT OR STEPPARENT ADOPTION TO SECURE OUR CHILD’S RELATIONSHIP WITH THE NON-BIOLOGICAL PARENT?
Even though spouses are both legally presumed to be parents of children born into a marriage and that presumption applies to same-sex spouses, too, we still encourage non-biologically related parents to obtain second-parent or stepparent adoptions as further security for their parent-child relationships. This is particularly important when traveling in other states that do not, or may not, respect your marriage or the legal presumptions of parentage it creates.
WHAT RIGHTS AND OBLIGATIONS DO SAME-SEX SPOUSES HAVE IN HAWAIʻI?
Once you are married, you will have all of the rights and responsibilities of marriage under both Hawaiʻi law and federal law. The following examples illustrate categories of rights and responsibilities without trying to be complete.
Under State Law:
Family Law Rights and Responsibilities
- Duties of joint financial support and liability for family debts incurred during the relationship;
- Access to stepparent and joint adoption;
- Legal presumption that both spouses are parents of children born into the marriage — but adoption is still important, especially for interstate travel;
- Dissolution of the marriage in family court to manage a fair division of the assets and debts of the relationship;
- Right to seek financial support from each other upon breakup;
- Access to custody, visitation and support orders concerning children upon breakup;
- Protection under domestic violence and crime victim laws.
Medical and Death-Related Rights
- Hospital visitation and medical decision-making;
- Priority to administer deceased spouse’s estate, to authorize anatomical gifts and release of spouse’s medical records, and to make funeral arrangements;
- Right to seek money damages for spouse’s wrongful death, lost financial support and companionship;
- Right to inherit in the absence of a will;
- Protection against duty to repay public medical costs upon death of spouse; and
- For State employees, spousal health insurance and other family benefits.
Other Rights and Responsibilities
- Right to file joint state income tax returns and state tax exemption regarding value of spousal health insurance;
- Right to hold real property in “tenancy by the entirety” (which offers some protection against creditors);
- Some workplace benefits, including sick leave to care for ill spouse and where work injury causes death, funeral and burial expenses, and death benefits;
- Protections under state insurance laws;
- Right not to testify against spouse;
- Many other state law rights and responsibilities too numerous to list here.
Under Federal Law:
There are more than 1,100 places in federal law where a protection or responsibility is based on marital status. These include but are not limited to the ability to file joint federal income tax returns; exemption from income tax on employer-provided spousal health insurance; Social Security survivors’ and spousal benefits; exemption from inheritance tax; spousal protections in bankruptcy; spousal benefits for military personnel and veterans; immigration rights; employment protections under the Family Medical Leave Act; spousal protections and obligations under the Medicare, Medicaid, Supplemental Security Income (SSI), and other federal benefit programs; and the array of spousal protections and benefits for which current and former civilian employees of the federal government may be eligible.
For more information regarding federal rights and obligations now that federal law treats married people the same regardless of sex and sexual orientation, please read our After DOMA FAQs.
Note that, at the present time, the federal protections and obligations based on marriage usually are not the same for partners in a civil union. If federal protections or obligations are of concern to you or your partner, the need for a protection or to avoid an obligation may be a reason to choose between marriage and civil union, or to choose neither. The law in this area continues to evolve. You should consult an attorney for advice about your particular circumstances.
HOW WILL SAME-SEX SPOUSES WHO MARRY IN HAWAIʻI BE TREATED OUTSIDE THE STATE?
By other states:
In the growing number of states that honor the marriages of same-sex couples, a marriage solemnized under Hawaiʻi law will confer the legal status of spouses regardless of whether a couple marries in that state or elsewhere. In the many other states that discriminatorily deny respect to same-sex couples’ lawful marriages, the marriage will not automatically receive legal respect and the couple may be unprotected legally.
This is an important reason why life-planning documents such as wills and powers of attorney for healthcare decisions remain essential for married same-sex couples, just as for couples in civil unions and domestic partnerships. For more information about your options, access the Lambda Legal life-planning publication Take the Power.
By the federal government:
On June 26, 2013, the U.S. Supreme Court struck down Section 3 of the federal so-called “Defense of Marriage Act” (DOMA), which denied all federal recognition to the marriages of same-sex couples, as unconstitutional. As a result, legally married same-sex couples living in Hawaiʻi will be treated just like married different-sex couples.
The situation is more complicated for same-sex couples who marry in Hawaiʻi and then return home to a state that does not respect their marriage. They are likely to have access to some federal rights and benefits, but not to others, at least not immediately. Federal agencies have different approaches regarding which state’s laws determine if a marriage is valid for federal purposes and some agencies have not yet issued guidance about the approach they will take. More information is available here.
Depending on your circumstances, getting married may be financially or legally detrimental, especially if you are receiving certain government benefits. If you live in a state that does not, or may not, respect your marriage, that may affect your rights under federal as well as state law. So you should get advice from a knowledgeable attorney before traveling to Hawaiʻi to marry.
MUST MY EMPLOYER OFFER HEALTH INSURANCE AND PENSION AND OTHER EMPLOYMENT-RELATED BENEFITS FOR MY SAME-SEX SPOUSE?
State and local government employers must offer employees the same health insurance and pension benefits to cover same-sex spouses as to cover different-sex spouses. It may be more challenging, however, to get certain private employers to treat same-sex spouses equally with respect to health insurance and pensions, depending on what plans the private employer uses, and whether nondiscrimination laws apply. If your private employer denies same-sex spouses equal access to health insurance or pensions, we encourage you to contact the Lambda Legal Help Desk for help determining your options.
HOW DO I END A MARRIAGE, CIVIL UNION, OR RDP THAT I ENTERED INTO IN ANOTHER STATE?
To get a divorce or dissolve a civil union or RDP entered into in another state, you will need to file a petition in the Hawaiʻi family court. One spouse or civil union partner or registered domestic partner must have been living in Hawaiʻi for at least six months prior to filing. Same-sex spouses, civil union partners and RDPs may be eligible for “maintenance” (like alimony) and court assistance in allocating child custody, awarding visitation and child support, and dividing property.
WHAT HAPPENS IF WE MARRY IN HAWAIʻI AND LATER WANT TO DISSOLVE OUR MARRIAGE WHEN MY SPOUSE AND I DON’T LIVE IN HAWAIʻI?
Under the Marriage Act, if you both live in a state or states that won’t grant you a divorce because the law doesn’t recognize the marriages of same-sex couples, you will be able to get a divorce in Hawaiʻi. The Act allows the family courts of Hawaiʻi to grant marriage dissolution and divorce for nonresident couples who have married in Hawaiʻi and cannot get a divorce in their home state or states. In addition to ending the couple’s legal status as married, the Hawaiʻi courts also can decide questions concerning child custody, financial support and division of property if both spouses consent or if there is another legal basis for doing so in addition to the marriage law. Especially because federal law will honor same-sex couples’ marriages in various contexts even when state law does not, it usually will be wise for couples to get a divorce if they can when their relationship has ended.
WHEN MIGHT A SAME-SEX COUPLE BE ADVISED NOT TO GET MARRIED?
- If they wish to adopt a child from a state or country that may not approve adoptions by LGBT people or same-sex couples;
- If either depends on public assistance;
- If either or both do not want the significant rights and mutual responsibilities provided under both state and federal law to those who marry.
PLEASE NOTE: This document offers general information only and is not intended to provide legal advice or guidance about any person’s specific situation. Keep in mind that getting married is a major step. Although the law provides significant rights and obligations to those who marry, it still can be important to write a will or trust, prepare powers of attorney, secure parent-child relationships by adoption, and take other legal steps to protect yourself and your loved ones, especially when traveling. You should consult an attorney about your needs. Long-term couples and those with substantial property especially should get advice about tax consequences of marrying and ways to protect pre-marriage property if they wish.
If you have additional questions or need help finding a lawyer, please contact Lambda Legal’s Help Desk.
This FAQ document is brought to you by Lambda Legal, Equality Hawaii, and the Hawaiʻi LGBT Legal Association. To help with the continuing work to advance LGBT equality in Hawaiʻi and to educate the community about LGBT legal issues and needs, contact Lambda Legal or Equality Hawaiʻi at firstname.lastname@example.org, or the Hawaiʻi LGBT Legal Association at email@example.com.