Banking Law Bulletin
With appropriate credit to Bob Dylan “Oh, ‘the times they are a-changing’”. Indeed.
On June 1, 2014 and with much fanfare, the Religious Freedom and Marriage Fairness Act (“Act”) went into effect in Illinois allowing 102 Illinois counties to begin issuing marriage licenses to same sex couples.
The moment was heralded by many as a milestone in the quest by same sex couples for equal rights in marriage with different sex couples and derided by others as being neither “free” nor “fair”.
Regardless of the politics or the social ramifications of it, the purpose of the Act is clear: to provide same sex and different sex couples and their children with equal access to the status, benefits, protections, rights and responsibilities of civil marriage. As such, all laws in Illinois applicable to marriage, including those relating to homestead rights, heretofore apply equally to marriages of both same sex and different sex couples.
Putting aside all other issues, the Act does present a number of questions for lenders specifically in the area of mortgage lending where several issues seem germane.
First, can a Bank obtain information from loan applicants regarding their marital status as a “same sex couple”? The answer is “yes”.
The Uniform Residential Loan Application form used by most Banks includes a section for information regarding the prospective borrower and any co-borrower. Thereunder, the names of the borrower and the co-borrower are to be listed as well as their marital status. If a same sex couple applies for a mortgage loan, this provision of the application must be completed. As such, the applicants will need to indicate on the form whether or not they are married. If the couple indicates they are married, the Bank can assume that their marriage has been licensed, solemnized and registered just as, heretofore, with different sex couples.
Nevertheless, should a loan officer request a copy of the same sex couple’s marriage license to confirm that the couple is, in fact, married? Perhaps the couple has simply been living together for an extended time and considers themselves to be married by “common law”.
Because it is not customary to request different sex couples to provide a copy of their marriage license, requiring that of a same sex couple seems inappropriate. A Bank can rely upon the information provided in its loan application. Requesting a same sex couple, but not a different sex couple, to furnish a copy of their marriage license would appear to be discriminatory. It is also impractical for after a few years of marriage who knows where the license is?
The next question is how a same sex couple can take title to real property and ancillary hereto, issue how the grantor language in the Bank’s mortgage should read. This is a matter of linguistic, but with legal implications.
As the Act places all married couples on an equal basis, a married couple, regardless of whether they are the same sex or different sex, can take title as tenants by the entirety or as joint owners with survivorship rights or as tenants in common. All these options are available to a married couple and they are free to choose among these alternatives as they wish.
The question then gets to be how the couple should be identified or designated in the grantor clause on the Bank’s mortgage (or in the grantee clause of the deed to the property). For example, if Sam Smith and John Jones are married to each other, should they be referred to as “married partners”, “a married couple”, or “husband and husband” (or in the case of women “wife and wife”).
While several of the foregoing designations might be acceptable, clearly it would not be accurate or correct to refer to a same sex couple as “husband and wife”. A husband cannot be female and a wife cannot be male.
So what then? In general, it has increasingly become the cultural practice for women in same sex marriages to refer to each other as “wives” or “spouses” and men generally to refer to each other as “husbands” or “spouses”.
The Grammarphobia Blog dated July 17, 2013 notes that the American Heritage Dictionary of the English language and the Mariam Webster Collegiate Dictionary both define a husband as a man joined to another person in marriage and a wife as a woman joined to another person in marriage – a female spouse.
By these definitions, it would appear that the most correct and proper designation for partners in a same sex marriage would be to identify the same, if men, as “husband and husband” and in the case of women, as “wife and wife”.
Doing so will reduce linguistic confusion while being consistent with the evolving language for gay marriages. While this usage may not, as yet, be wide spread it appears to be increasingly common and the preferred alternative.
And so, as we move forward into the brave new world of same sex marriage, it is recommended, as a first choice, that same sex married couples be referred to in mortgages by their full names followed by identification as “husband and husband” or “wife and wife” as the case may be. The second choice would be “married spouses”. Either way, is okay. But, of course, if the couple requests that they be identified in some other way, that request should be honored as long as it clearly reflects their marital status.
The foregoing is not intended to be legal advice, but rather, to provide accurate information regarding banking law and regulatory matters. For more information regarding any of the foregoing items, please contact any member of our banking practice group: William G. Keller, Jr. (firstname.lastname@example.org), James A. Rapp (email@example.com), William M. McCleery, Jr. (firstname.lastname@example.org), Michael A. Bickhaus (email@example.com) or Christopher W. Pratt (firstname.lastname@example.org), at (217) 223-3030 or visit us on the web at www.srnm.com. We invite and welcome all questions and comments.
Schmiedeskamp Robertson Neu & Mitchell LLP
525 Jersey Street, Quincy, Illinois 62301
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