2003 West Virginia Covenant Marriage Bill


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Status: Was being considered by the Senate Judiciary Committee as of 3/10/03. See WV Senate bill status reports at http://129.71.164.29/bill_status/2003sql/Hist_First-Last_Sen.cfm

SENATOR STEVE HARRISON 8th District, Kanawha County, WV Capitol
Phone:304-357-7841
Summary of Valentine's Day Senate Floor Speech
- 2/14/03 -
Thank you, Mr. President. I know it is Friday, so I will be brief. But it is also
Valentine's Day and I do want to call attention to two Valentine's Day
bills which were introduced today. Both are designed to strengthen
marriages and reduce the divorce rate in West Virginia. There is
no question that divorce can have devastating effects on those divorcing,
on children, and on society as a whole. These bills, which are both
optional, are designed to help reduce the divorce rate and the negative
effects associated with divorce. ... The purpose of SB
541 is to create the "Covenant Marriage option." Couples who choose this
option would be required to receive premarital counseling. If they
choose to divorce, they would be required, with some exceptions, to first
receive marital counseling and observe a waiting or "cooling off" period.
Reading from the bill, those choosing the Covenant Marriage option would
agree to the following: "We do solemnly declare that marriage is a
covenant between a man and a woman who agree to live together as husband
and wife for so long as they both may live. We understand the
nature, purpose and responsibilities of marriage We have read the
Covenant Marriage Act, and understand that a covenant marriage is for
life. If we experience marital difficulties, we commit ourselves to
take all reasonable efforts to preserve our marriage, including marital
counseling. . . ." Mr. President, similar bills have been enacted in
other states. I hope that the Senate will consider these proposals
as a way to help reduce the divorce rate and the negative effects of
divorce. Thank you and Happy Valentines Day.


Senate Bill No. 541

(By Senators Harrison, Weeks and Smith) [Introduced
February 14, 2003; referred to the Committee on the Judiciary; and then to
the Committee on Finance.]

A BILL to amend and reenact sections one
hundred four and two hundred two, article two, chapter forty-eight of the
code of West Virginia, one thousand nine hundred thirty-one, as amended;
and to further amend said chapter by adding thereto a new article,
designated article two-a, all relating to marriages; establishing covenant
marriages; providing for divorce and separation from bed and board in a
covenant marriage; and requiring the attorney general to prepare and
publish a pamphlet concerning covenant marriages.
Be it enacted by the Legislature of West Virginia: That sections one hundred four and two
hundred two, article one, chapter forty-eight of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be amended and
reenacted; and that said chapter be further amended by adding thereto a
new article, designated article two-a, all to read as follows:

ARTICLE 2.
MARRIAGES. §48-2-104. Contents of the application for a marriage license.
(a) The application for a marriage license must contain a statement of the
full names of both female and male parties, their social security account
numbers, dates of birth, places of birth and residence addresses.
(b) If either of the parties is a legal alien in the United States of America and
has no social security account number, a tourist or visitor visa number or
number equivalent to a United States social security account number must
be provided.
(c) Every application for a marriage license must contain the
following statement: "Marriage is designed to be a loving and lifelong
union between a woman and a man. The laws of this state affirm your right
to enter into this marriage and to live within the marriage free from
violence and abuse. Neither of you is the property of the other. Physical
abuse, sexual abuse, battery and assault of a spouse or other family
member, and other provisions of the criminal laws of this state are
applicable to spouses and other family members, and these violations are
punishable by law." In cases in which the parties intend to contract a
covenant marriage, the application shall: (1) Be accompanied by the
declaration of intent for a covenant marriage, as provided in section
three, article one-a of this chapter; and (2) Contain the following:
"We,[name of intended husband] and [name of intended wife], do hereby
declare our intent to contract a covenant marriage and, accordingly, have
executed a declaration of intent attached hereto."

§48-2-202. Endorsement and return of licenses by persons solemnizing marriage; duties of clerk
pertaining thereto.
(a) The person solemnizing a marriage shall retain
the marriage license and place an endorsement on it establishing the fact
of the marriage and the time and place it was celebrated and whether the
couple intended to enter into a covenant marriage.
(b) Before the sixth day of the month after the month in which the marriage was celebrated, the
person who solemnized the marriage shall forward the original of the
marriage license to the clerk who issued the license.
(c) In the event that the marriage authorized by the license is not solemnized within sixty
days from the date of its issuance, then the license is null and void. If
the county clerk has not received the original license within sixty days
after the expiration date on the license, the clerk shall notify each of
the applicants of that fact, by certified mail, return receipt requested.

ARTICLE 2A. COVENANT MARRIAGE.
§48-2A-1. Short title. This article may be
cited as the Covenant Marriage Act.
§48-2A-2. Covenant marriage; definition; intent to create.
(a) A covenant marriage is a marriage
entered into by one male and one female who understand and agree that the
marriage between them is a lifelong relationship. Parties to a covenant
marriage shall have received counseling emphasizing the nature and
purposes of marriage and the responsibilities thereto. Only when there has
been a complete and total breach of the marital covenant commitment may
the non-breaching party seek a declaration that the marriage is no longer
legally recognized.
(b) A man and woman may contract a covenant marriage
by declaring their intent to do so on their application for a marriage
license, and executing a declaration of intent to contract a covenant
marriage.

§48-2A-3. Covenant marriage declaration of intent.
(a) A declaration of intent to contract a covenant marriage shall contain: (1) A
recitation by the parties substantially similar to the following:
A COVENANT MARRIAGE "We do solemnly declare that marriage is a covenant
between a man and a woman who agree to live together as husband and wife
for so long as they both may live. We have chosen each other carefully and
disclosed to one another everything that could adversely affect the
decision to enter into this marriage. We have received premarital
counseling on the nature, purposes and responsibilities of marriage. We
have read the Covenant Marriage Act, and understand that a covenant
marriage is for life. If we experience marital difficulties, we commit
ourselves to take all reasonable efforts to preserve our marriage,
including marital counseling. With full knowledge of what this commitment
means, we do hereby declare that our marriage will be bound by the West
Virginia law on covenant marriages, and we promise to love, honor and care
for one another as husband and wife for the rest of our lives." (2) An
affidavit by the parties that they have received premarital counseling
from a priest, minister, rabbi, clerk of the religious society of friends,
any clergy of any religious sect, or a marriage counselor, which
counseling included a discussion of the seriousness of covenant marriage,
communication of the fact that a covenant marriage is a commitment for
life, a discussion of the obligation to seek marital counseling in times
of marital difficulties, and a discussion of the exclusive grounds for
legally terminating a covenant marriage by divorce or by divorce after a
judgment of separation from bed and board. Attached to, or included in,
the affidavit shall be a notarized attestation, signed by the counselor
confirming that the parties were counseled as to the nature and purpose of
the marriage and the grounds for termination and acknowledging that the
counselor provided to the parties the information pamphlet developed and
promulgated by the office of the attorney general, which provides a full
explanation of the terms and conditions of a covenant marriage; and (3)
(A) The signature of both parties witnessed by a notary or other person
authorized to administer oaths; or (B) If one or more of the parties is
under the age of eighteen, the written consent of the person required by
section one, article one of this chapter.
(b) The declaration shall contain two separate documents, the recitation and the affidavit. The
recitation shall be prepared in duplicate originals, one to be retained by
the parties, and the other, together with the affidavit and attestation,
shall be filed with the clerk of the county commission at the time the
marriage license is issued.

§48-2A-4. Declaration by couples already married.
(a) After the first day of July, two thousand three, married
couples may execute a declaration of intent to designate their marriage as
a covenant marriage to be governed by this article.
(b) The declaration of intent, in the form and containing the contents required in this section
shall be filed with the clerk of the county commission who issued the
couple's marriage license and with whom their marriage license is filed.
If the couple was married outside of this state, a copy of the foreign
marriage certificate, with the declaration of intent attached, shall be
filed with the clerk of the county commission in the county where the
couple resides. The clerk shall make a notation on the marriage
certificate of the declaration of intent of a covenant marriage and attach
a copy of the declaration to the certificate.
(c) A declaration of intent to designate a marriage as a covenant marriage shall contain:
(1) A recitation by the parties substantially similar to the following: A
COVENANT MARRIAGE "We do solemnly declare that marriage is a covenant
between a man and a woman who agree to live together as husband and wife
for so long as they both may live. We understand the nature, purpose and
responsibilities of marriage. We have read the Covenant Marriage Act, and
understand that a covenant marriage is for life. If we experience marital
difficulties, we commit ourselves to take all reasonable efforts to
preserve our marriage, including marital counseling. With full knowledge
of what this commitment means, we do hereby declare that our marriage will
be bound by the West Virginia law on covenant marriages, and we promise to
love, honor and care for one another as husband and wife for the rest of
our lives."; (2) An affidavit by the parties that they have discussed
their intent to designate their marriage as a covenant marriage with a
priest, minister, rabbi, clerk of the religious society of friends, any
clergy of any religious sect, or a marriage counselor, which included a
discussion of the obligation to seek marital counseling in times of
marital difficulties, and a discussion of the exclusive grounds for
legally terminating a covenant marriage by divorce or by divorce after a
judgment of separation from bed and board. Attached to, or included in,
the affidavit shall be a notarized attestation, signed by the counselor
acknowledging that the counselor provided the parties the information
pamphlet developed and promulgated by the office of the attorney general,
which provides a full explanation of the terms and conditions of a
covenant marriage; and (3) The signature of both parties witnessed by a
notary or other person authorized to administer oaths.
(d) The declaration shall contain two separate documents, the recitation and the affidavit.
The recitation shall be prepared in duplicate originals, one to be
retained by the parties, and the other, together with the affidavit and
attestation, shall be filed with the clerk of the county commission, as
provided in subsection (b) of this section.

§48-2A-5. Action for divorce.
An action requesting a divorce from a covenant marriage or a judgment of
separation from bed and board, shall be initiated and mature as an action
for divorce brought under the provisions of article five of this chapter,
except as otherwise provided in this article.

§48-2A-6. Grounds for divorce.
(a) Notwithstanding the provisions of section four, article two
of this chapter or any other law to the contrary, a divorce from a
covenant marriage may be granted only if the provisions of this section
are met.
(b) Subsequent to the parties obtaining counseling, a spouse may
obtain a judgment of divorce only upon the following grounds: (1) For
adultery; (2) When either of the parties subsequent to the marriage has,
in or out of this state, been convicted for the commission of a crime
which is a felony, and the conviction is final; (3) To the party
abandoned, when either party willfully abandons or deserts the other for
one year; (4) For abuse of either party against the other or a child of
the parties, or neglect of a child of the parties or of one of the
parties. "Abuse" means any physical or mental injury inflicted on the
other party or child including, but not limited to, sexual molestation.
"Neglect" is willful failure to provide, by a party who has legal
responsibility for the child, the necessary support, education as required
by law, or medical, surgical or other care necessary for the well-being of
the child. When the sole grounds for the divorce is the alleged abuse or
neglect of a child, the divorce may not be granted except upon clear and
convincing evidence sufficient to justify permanently depriving the
offending party of his or her parental rights to the custody and control
of the abused or neglected child; (5) Where the parties have lived
separate and apart in separate places of abode without any cohabitation
and without interruption for two years, whether such separation was the
voluntary act of one of the parties or by the mutual consent of the
parties: Provided, That a plea of res judicata or of recrimination with
respect to any other provision of this section is not a bar to either
party's obtaining a divorce on this ground: Provided, however, That if
alimony is sought under the provision of section fifteen, article two of
this chapter, the court may inquire into the question of who is the party
at fault and may award alimony according to the right of the matter:
Provided further, That this determination does not affect the right of
either party to obtain a divorce on this ground; (6) Where the parties
have lived separate and apart in separate places of abode without any
cohabitation and without interruption for one year from the date the
judgment of separation from bed and board was signed; or (7) If there is a
minor child or children of the marriage and the parties have been living
separate and apart in separate places of abode without any cohabitation
and without interruption for one year and six months from the date the
judgment of separation from bed and board was signed.

§48-2A-7. Separation from bed and board in covenant marriage; procedure and relief.
(a) Unless judicially separated, parties in a covenant marriage may not
sue each other except for causes of action pertaining to contracts or
arising out of the provisions of this chapter.
(b) An action for a separation from bed and board in a covenant marriage shall be brought in
the county where either party is domiciled or in the county of the last
matrimonial domicile.
(c) The venue provided in this section may not be
waived, and a judgment of separation rendered by a court of improper venue
is an absolute nullity.
(d) Judgments on the pleadings and summary
judgments may not be granted in any action for separation from bed and
board in a covenant marriage.
(e) Separation from bed and board in a covenant marriage does not dissolve the bond of matrimony, since the separated husband and wife are not at liberty to marry again. The
separation does put an end to their conjugal cohabitation and to the
common concerns which existed between them.
(f) Spouses who are judicially
separated retain that status until either reconciliation or divorce.
(g) In a proceeding for a separation from bed and board in a covenant
marriage, a court may award a party all incidental relief afforded in a
proceeding for divorce provided under article two of this chapter.

§48-2A-8. Grounds for a judgment of separation from bed and board.
(a) Notwithstanding the provisions of article two of this chapter or any other
law to the contrary, a judgment of separation from bed and board may be
granted to a spouse in a covenant marriage only if the provisions of this
section are met.
(b) Subsequent to the parties obtaining counseling, a
spouse may obtain a judgment of separation from bed and board only upon
the following grounds: (1) For adultery; (2) When either of the parties
subsequent to the marriage has, in or out of this state, been convicted
for the commission of a crime which is a felony, and the conviction is
final; (3) To the party abandoned, when either party willfully abandons
or deserts the other for one year; (4) For abuse of either party against
the other or a child of the parties, or neglect of a child of the parties
or of one of the parties. "Abuse" means any physical or mental injury
inflicted on the other party or child including, but not limited to,
sexual molestation. "Neglect" is willful failure to provide, by a party
who has legal responsibility for the child, the necessary support,
education as required by law, or medical, surgical or other care necessary
for the well-being of the child; (5) Where the parties have lived separate
and apart in separate places of abode without any cohabitation and without
interruption for two years, whether such separation was the voluntary act
of one of the parties or by the mutual consent of the parties; (6) For
habitual intemperance of the other spouse, or excess, cruel treatment, or
outrages of the other spouse, if the habitual intemperance, or
ill-treatment makes living together insupportable; (7) For habitual
drunkenness of either party subsequent to the marriage; or (8) For the
addiction of either party, subsequent to the marriage, to the habitual use
of any narcotic or dangerous drug defined in this code.

§48-2A-9. Attorney general to publish pamphlet.
The attorney general shall, prior to the
first day of July, two thousand three, prepare and publish an
informational pamphlet, entitled "Covenant Marriage Act", which shall
outline in sufficient detail the consequences of entering into a covenant
marriage. The informational pamphlet shall be made available to any
counselor who provides marriage counseling as provided for by this
article.

§48-2A-10. Applicability of other laws.
The other provisions of this chapter apply to covenant marriages to the extent they are not
inconsistent with the provisions of this article.

NOTE: The purpose of this bill is to establish the Covenant Marriage Act. Entering into a
covenant marriage will be optional and the current form of marriage
provided in state law will remain available. Strike-throughs indicate
language that would be stricken from the present law, and underscoring
indicates new language that would be added. Article 2A is new; therefore,
strike-throughs and underscoring have been omitted.


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