2002 Mississippi HB 1394 - Covenant Marriage


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2002 Mississippi House Bill No. 1394

To: Judiciary A
By: Representative Guice
House Bill 1394

VERSION: Introduced
January 21, 2002

AN ACT TO CREATE A FORM OF MARRIAGE TO BE KNOWN AS COVENANT MARRIAGE
REQUIRING CERTAIN DECLARATIONS; TO ALLOW MARRIED COUPLES TO DESIGNATE THEIR
MARRIAGE AS A COVENANT MARRIAGE; TO PROVIDE THAT A COVENANT MARRIAGE MAY BE
DISSOLVED ONLY IN CERTAIN CASES; TO PROVIDE FOR SEPARATION FROM BED AND
BOARD; TO REQUIRE THE ATTORNEY GENERAL TO PROMULGATE A COVENANT MARRIAGE
PAMPHLET; TO AMEND SECTIONS 93-1-5, 93-1-13, 93-5-1 AND 93-5-23, MISSISSIPPI
CODE OF 1972, IN CONFORMITY THERETO; AND FOR RELATED PURPOSES.


TEXT:
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. (1) 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 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 nonbreaching party seek a
declaration that the marriage is no longer legally recognized.

(2) 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, as provided in Section
2 of this act. The application for a marriage license and the declaration of
intent shall be filed with the official who issues the marriage license.

SECTION 2. (1) A declaration of intent to contract a covenant
marriage shall contain all of the following:

(a) A recitation by the parties to the following effect:

"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 which 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 we
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 Mississippi 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."

(b) (i) An affidavit by the parties that they have received premarital
counseling from a priest, minister, rabbi, clerk of the Religious Society of
Friends, any clergyman of any religious sect, or a marriage counselor, which
counseling shall include 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.

(ii) A notarized attestation, signed by the counselor and attached to or
included in the parties' affidavit, confirming that the parties were
counseled as to the nature and purpose of the marriage and the grounds for
termination thereof and an acknowledging that the counselor provided to the
parties the informational pamphlet developed and promulgated by the Office of
the Attorney General, which pamphlet entitled the Covenant Marriage Act
provides a full explanation of the terms and conditions of a covenant
marriage.

(c) (i) The signature of both parties witnessed by a notary.

(ii) If one (1) or both of the parties are minors, the written consent or
authorization of those persons required to consent to or authorize the
marriage of minors.

(2) The declaration shall contain two (2) separate documents, the
recitation and the affidavit, the latter of which shall include the
attestation either included therein or attached thereto. The recitation shall
be prepared in duplicate originals, one (1) of which shall be retained by the
parties and the other, together with the affidavit and attestation, shall be
filed as provided in Section 1 of this act.

SECTION 3. (1) On or after July 1, 2002, married couples may
execute a declaration of intent to designate their marriage as a covenant
marriage to be governed by the laws relative thereto.

(2) (a) This declaration of intent in the form and containing the contents
required by subsection (3) of this section must be presented to the officer
who issued the couple's marriage license and with whom the couple's marriage
certificate is filed. If the couple was married outside of this state, a copy
of the foreign marriage certificate, with the declaration of intent attached
thereto, shall be filed with the officer who issues marriage licenses in the
county in which the couple is domiciled. The officer 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.

(b) On or before the fifteenth day of each calendar month, the officer
shall forward to the state registrar of vital records each declaration of
intent of a covenant marriage filed with him during the preceding calendar
month pursuant to this section.

(3) (a) A declaration of intent to designate a marriage as a covenant
marriage shall contain all of the following:

(i) A recitation by the parties to the following effect:

"A COVENANT MARRIAGE

We do solemnly declare the 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 we 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 Mississippi law on Covenant Marriage, and
we renew our promise to love, honor and care for one another as husband and
wife for the rest of our lives."

(ii) 1. 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 clergyman 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
the exclusive grounds for legally terminating a covenant marriage by divorce
or by divorce after a judgment of separation from bed and board.

2. A notarized attestation, signed by the counselor and attached to the
parties' affidavit, acknowledging that the counselor provided to the parties
the information pamphlet developed and promulgated by the Office of the
Attorney General, which pamphlet entitled the Covenant Marriage Act provides
a full explanation of the terms and conditions of a covenant marriage.

3. The signature of both parties witnessed by a notary.

(b) The declaration shall contain two (2) separate documents, the
recitation and the affidavit, the latter of which shall include the
attestation either included therein or attached thereto. The recitation shall
be prepared in duplicate originals, one (1) of which shall be retained by the
parties and the other, together with the affidavit and attestation, shall be
filed as provided in subsection (2) of this section.

SECTION 4. (1) Notwithstanding any other law to the contrary and
subsequent to the parties obtaining counseling, a spouse to a covenant
marriage may obtain a judgment of divorce only upon proof of any of the
following:

(a) The other spouse has committed adultery.

(b) The other spouse has committed a felony and has been sentenced to
death, life imprisonment or life imprisonment without eligibility for parole.

(c) The other spouse has abandoned the matrimonial domicile for a period
of one (1) year and constantly refuses to return.

(d) The other spouse has physically or sexually abused the spouse seeking
the divorce or a child of one (1) of the spouses.

(e) The spouses have been living separate and apart continuously without
reconciliation for a period of two (2) years.

(f) (i) The spouses have been living separate and apart continuously
without reconciliation for a period of one (1) year from the date the
judgment of separation from bed and board was signed.

(ii) If there is a minor child or children of the marriage, the spouses
have been living separate and apart continuously without reconciliation for a
period of one (1) year and six (6) months from the date the judgment of
separation from bed and board was signed; however, if abuse of a child of the
marriage or a child of one (1) of the spouses is the basis for which the
judgment of separation from bed and board was obtained, then a judgment of
divorce may be obtained if the spouses have been living separate and apart
continuously without reconciliation for a period of one (1) year from the
date the judgment of separation from bed and board was signed.

(2) Notwithstanding any other law to the contrary and subsequent to the
parties obtaining counseling, a spouse to a covenant marriage may obtain a
judgment of separation from bed and board only upon proof of any of the
following:

(a) The other spouse has committed adultery.

(b) The other spouse has committed a felony and has been sentenced to
death, life imprisonment or life imprisonment without eligibility for parole.

(c) The other spouse has abandoned the matrimonial domicile for a period
of one (1) year and constantly refuses to return.

(d) The other spouse has physically or sexually abused the spouse seeking
the divorce or a child of one (1) of the spouses.

(e) The spouses have been living separate and apart continuously without
reconciliation for a period of two (2) years.

(f) On account of habitual intemperance of the other spouse, or excesses,
cruel treatment, or outrages of the other spouse, if such habitual
intemperance, or such ill-treatment is of such a nature as to render their
living together insupportable.

SECTION 5. (1) Unless judicially separated, spouses in a covenant
marriage may not sue each other except for causes of action pertaining to
contracts; for restitution of separate property; for separation from bed and
board in covenant marriages, for divorce, or for declaration of nullity of
the marriage; and for causes of action pertaining to spousal support or the
support or custody of a child while the spouses are living separate and
apart, although not judicially separated.

(2) (a) Any court which is competent to preside over divorce proceedings,
has jurisdiction of an action for separation from bed and board in a covenant
marriage, if:

(i) One (1) or both of the spouses are domiciled in this state and the
ground therefor was committed or occurred in this state or while the
matrimonial domicile was in this state.

(ii) The ground therefor occurred elsewhere while either or both of the
spouses were domiciled elsewhere, provided the person obtaining the
separation from bed and board was domiciled in this state prior to the time
the cause of action accrued and is domiciled in this state at the time the
action is filed.

(b) An action for a separation from bed and board in a covenant marriage
shall be brought in a county where either party is domiciled, or in the
county of the last matrimonial domicile.

(c) The venue provided herein may not be waived, and a judgment of
separation rendered by a court of improper venue is an absolute nullity.

(3) Judgments on the pleadings and summary judgments shall not be granted
in any action for separation from bed and board in a covenant marriage.

(4) In a proceeding for a separation from bed and board in a covenant
marriage or thereafter, a court may award a spouse all incidental relief
afforded in a proceeding for divorce, including but not limited to, spousal
support, claims for contributions to education, child custody, visitation
rights, child support, injunctive relief and possession and use of a family
residence or community movables or immovables.

SECTION 6. (1) (a) 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; but it puts an end to their
conjugal cohabitation and to the common concerns which existed between them.

(b) Spouses who are judicially separated from bed and board in a covenant
marriage shall retain that status until either reconciliation or divorce.

(2) (a) The judgment of separation from bed and board carries with it the
separation of goods and effects and is retroactive to the date on which the
original petition was filed in the action in which the judgment is rendered,
but such retroactive effect shall be without prejudice (i) to the liability
of the community for the attorney's fees and costs incurred by the spouses in
the action in which the judgment is rendered, or (ii) to rights validly
acquired in the interim between commencement of the action and recordation of
the judgment.

(b) Upon reconciliation of the spouses, the community shall be
reestablished between the spouses, as of the date of filing of the original
petition in the action in which the judgment was rendered, unless the spouses
execute prior to the reconciliation a matrimonial agreement that the
community shall not be reestablished upon reconciliation. This matrimonial
agreement shall not require court approval.

(c) Reestablishment of the community under the provisions of this section
shall be effective toward third persons only upon filing notice of the
reestablishment for registry. The reestablishment of the community shall not
prejudice the rights of third persons validly acquired prior to filing notice
of the reestablishment nor shall it affect a prior community property
partition between the spouses.

SECTION 7. The Office of Attorney General, Department of Justice
shall, prior to July 1, 2002, promulgate 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 act.

SECTION 8. Section 93-1-5, Mississippi Code of 1972, is amended as
follows:

93-1-5. It shall be unlawful for the circuit court clerk to issue a
marriage license until the following conditions precedent have been complied
with:

(a) Parties desiring a marriage license shall make application therefor in
writing to the clerk of the circuit court of any county in the State of
Mississippi; provided, however, that if the female applicant shall be under
the age of twenty-one (21) years and shall be a resident of the State of
Mississippi, said application shall be made to the circuit court clerk of the
county of residence of such female applicant. Said application shall be
forthwith filed with the circuit court clerk and shall include the names,
ages and addresses of the parties applying; the names and addresses of the
parents of the parties applying, and if no parents, then names and addresses
of the guardian or next of kin; the signatures of witnesses; and any other
data which may be required by law or the Mississippi State Board of Health.
The application shall be sworn to by both applicants.

(b) The application shall remain on file, open to the public, in the
office of the circuit court clerk for a period of three (3) days before the
clerk is authorized to issue the marriage license. Provided, however, that if
satisfactory proof is furnished to the judge of any circuit, chancery or
county court that sufficient reasons exist, then the judge of any such court
in the judicial district where either of such parties resides if they be over
the age of twenty-one (21) years, or where the female resides if she be under
the age of twenty-one (21), may waive the three-day waiting period and by
written instrument authorize the clerk of the court to issue the marriage
license to the parties if they are otherwise qualified by law. Authorization
shall be a part of the confidential files of the clerk of the court, subject
to inspection only by written permission of the judge. If either of the
applying parties appears from the evidence to be under twenty-one (21) years
of age, the circuit court clerk, immediately upon filing the application,
shall cause notice of the filing of said application to be sent by prepaid
certified mail to the father, mother, guardian or next of kin of both
applying parties at the address named in said application.

(c) An affidavit showing the age of both applying parties shall be made by
either the father, mother, guardian or next of kin of each of the contracting
parties and filed with the clerk of the circuit court along with the
application; or in lieu thereof, said both applying parties shall appear in
person before the circuit court clerk and make and subscribe an oath in
person, which said affidavit shall be attached to and noted on the
application for the marriage license. In addition to either of the previous
conditions stated, further proof of age shall be presented to the circuit
court clerk in the form of either a birth certificate, baptismal record,
armed service discharge, armed service identification card, life insurance
policy, insurance certificate, school record, driver's license, or other
official document evidencing age. Said document substantiating age and date
of birth shall be examined by the circuit court clerk before whom application
is made, and the circuit court clerk shall retain in his file with the
application such document or a certified or photostatic copy thereof.

(d) The clerk shall not issue a marriage license under the provisions of
this section unless the male applicant is at least seventeen (17) years of
age, and the female is at least fifteen (15) years of age; provided, however,
that if satisfactory proof is furnished to the judge of any circuit, chancery
or county court that sufficient reasons exist and that said parties desire to
be married to each other and that the parents or other person in loco
parentis of the person or persons so under age consent thereto, then the
judge of any such court in the county where either of such parties resides
may waive the minimum age requirement and by written instrument authorize the
clerk of the court to issue the marriage license to the parties if they are
otherwise qualified by law. Authorization shall be a part of the confidential
files of the clerk of the court, subject to inspection only by written
permission of the judge.

(e) A medical certificate dated within thirty (30) days prior to the
application shall be presented to the circuit court clerk showing that the
applicant is free from syphilis, as nearly as can be determined by a blood
test performed in a laboratory approved by the State Board of Health. The
medical certificate may be obtained through the local health department by
the applicant or applicants, or it may be obtained through any private
laboratory approved by the State Board of Health. Said medical certificate
shall be examined by the circuit court clerk and filed in a permanent file
kept by the clerk for this purpose.

(f) In no event shall a license be issued by the circuit court clerk when
it appears to the circuit court clerk that the applicants are, or either of
them is, drunk, insane or an imbecile.

(g) The circuit clerk is authorized to grant a license for a covenant
marriage as provided by Sections 1 through 7 of this act and the clerk shall
indicate on the license whether the parties intend to enter into a covenant
marriage.

Any circuit clerk shall be liable under his official bond because of
noncompliance with the provisions of this section.

Any circuit court clerk who issues a marriage license without complying
with the provisions of this section shall be guilty of a misdemeanor, and
upon conviction shall be punished by a fine of not less than Fifty Dollars
($50.00) and not more than Five Hundred Dollars ($500.00).

SECTION 9. Section 93-1-13, Mississippi Code of 1972, is amended as
follows:

93-1-13. A marriage shall not be contracted or solemnized unless a license
therefor shall first have been duly issued. If applicable, the license
shall designate that the parties entered into a covenant marriage. No
irregularity in the issuance of or omission in the license shall invalidate
any marriage, nor shall this section be construed so as to invalidate any
marriage that is good at common law.

SECTION 10. Section 93-5-1, Mississippi Code of 1972, is amended as
follows:

93-5-1. Except as otherwise provided by Sections 1 through 7 of this
act, divorces from the bonds of matrimony may be decreed to the injured
party for any one or more of the following twelve causes, viz:

First. Natural impotency.

Second. Adultery, unless it should appear that it was committed by
collusion of the parties for the purpose of procuring a divorce, or unless
the parties cohabited after a knowledge by complainant of the adultery.

Third. Being sentenced to any penitentiary, and not pardoned before being
sent there.

Fourth. Wilful, continued and obstinate desertion for the space of one (1)
year.

Fifth. Habitual drunkenness.

Sixth. Habitual and excessive use of opium, morphine or other like drug.

Seventh. Habitual cruel and inhuman treatment.

Eighth. Insanity or idiocy at the time of marriage, if the party
complaining did not know of such infirmity.

Ninth. Marriage to some other person at the time of the pretended marriage
between the parties.

Tenth. Pregnancy of the wife by another person at the time of the
marriage, if the husband did not know of such pregnancy.

Eleventh. Either party may have a divorce if they be related to each other
within the degrees of kindred between whom marriage is prohibited by law.

Twelfth. Incurable insanity. But no divorce shall be granted upon this
ground unless the insane party shall have been under regular treatment for
insanity and causes thereof, confined in an institution for the insane for a
period of at least three (3) years immediately preceding the commencement of
the action. Provided, however, that transfer of an insane party to his or her
home for treatment or a trial visit on prescription or recommendation of a
licensed physician, which treatment or trial visit proves unsuccessful after
a bona fide effort by the complaining party to effect a cure, upon the
reconfinement of the insane party in an institution for the insane, shall be
regular treatment for insanity and causes thereof, and the period of time so
consumed in seeking to effect a cure, or while on a trial visit home, shall
be added to the period of actual confinement in an institution for the insane
in computing the required period of three (3) years confinement immediately
preceding the commencement of the action. No divorce shall be granted because
of insanity until after a thorough examination of such insane person by two
(2) physicians who are recognized authorities on mental diseases. One (1)
such physician shall be either the superintendent of the state hospital or
the veterans hospital for the insane in which the patient is confined, or a
member of the medical staff of such hospital who has had the patient in
charge. Before incurable insanity can be successfully proven as a ground for
divorce, it shall be necessary that both such physicians make affidavit that
such patient is a mentally disturbed person at the time of the examination
and both affidavits shall be made a part of the permanent record of the
divorce proceedings and shall create the prima facie presumption of incurable
insanity, such as would justify a divorce based thereon. Service of process
shall be made on the superintendent of the hospital in which the defendant is
a patient. In event the patient is in a hospital outside the state, process
shall be served by publication, as in other cases of service by publication,
together with the sending of a copy by registered mail to the superintendent
of said hospital. In addition thereto, process shall be served upon the next
blood relative and guardian, if any. In event there is no legal guardian, the
court shall appoint a guardian ad litem to represent the interest of the
insane person. Such relative or guardian and superintendent of the
institution shall be entitled to appear and be heard upon any and all issues.
The status of the parties as to the support and maintenance of the insane
person shall not be altered in any way by the granting of the divorce.

However, in the discretion of the chancery court, and in such cases as the
court may deem it necessary and proper, before any such decree is granted on
the ground of incurable insanity, the complainant, when ordered by the court,
shall enter into bond, to be approved by the court, in such an amount as the
court may think just and proper, conditioned for the care and keeping of such
insane person during the remainder of his or her natural life, unless such
insane person has a sufficient estate in his or her own right for such
purpose.

SECTION 11. Section 93-5-23, Mississippi Code of 1972, is amended as
follows:

93-5-23. When a divorce shall be decreed from the bonds of matrimony, the
court may, in its discretion, having regard to the circumstances of the
parties and the nature of the case, as may seem equitable and just, make all
orders touching the care, custody and maintenance of the children of the
marriage, and also touching the maintenance and alimony of the wife or the
husband, or any allowance to be made to her or him, and shall, if need be,
require bond, sureties or other guarantee for the payment of the sum so
allowed. Orders touching on the custody of the children of the marriage shall
be made in accordance with the provisions of Section 93-5-24. The court may
afterwards, on petition, change the decree, and make from time to time such
new decrees as the case may require. However, where proof shows that both
parents have separate incomes or estates, the court may require that each
parent contribute to the support and maintenance of the children of the
marriage in proportion to the relative financial ability of each. In the
event a legally responsible parent has health insurance available to him or
her through an employer or organization that may extend benefits to the
dependents of such parent, any order of support issued against such parent
may require him or her to exercise the option of additional coverage in favor
of such children as he or she is legally responsible to support.

Whenever the court has ordered a party to make periodic payments for the
maintenance or support of a child, but no bond, sureties or other guarantee
has been required to secure such payments, and whenever such payments as have
become due remain unpaid for a period of at least thirty (30) days, the court
may, upon petition of the person to whom such payments are owing, or such
person's legal representative, enter an order requiring that bond, sureties
or other security be given by the person obligated to make such payments, the
amount and sufficiency of which shall be approved by the court. The obligor
shall, as in other civil actions, be served with process and shall be
entitled to a hearing in such case.

Whenever in any proceeding in the chancery court concerning the custody of
a child a party alleges that the child whose custody is at issue has been the
victim of sexual or physical abuse by the other party, the court may, on its
own motion, grant a continuance in the custody proceeding only until such
allegation has been investigated by the Department of Human Services. At the
time of ordering such continuance the court may direct the party, and his
attorney, making such allegation of child abuse to report in writing and
provide all evidence touching on the allegation of abuse to the Department of
Human Services. The Department of Human Services shall investigate such
allegation and take such action as it deems appropriate and as provided in
such cases under the Youth Court Law (being Chapter 21 of Title 43,
Mississippi Code of 1972) or under the laws establishing family courts (being
Chapter 23 of Title 43, Mississippi Code of 1972).

If after investigation by the Department of Human Services or final
disposition by the youth court or family court allegations of child abuse are
found to be without foundation, the chancery court shall order the alleging
party to pay all court costs and reasonable attorney's fees incurred by the
defending party in responding to such allegation.

The court may investigate, hear and make a determination in a custody
action when a charge of abuse and/or neglect arises in the course of a
custody action as provided in Section 43-21-151, and in such cases the court
shall appoint a guardian ad litem for the child as provided under Section
43-21-121, who shall be an attorney. Unless the chancery court's jurisdiction
has been terminated, all disposition orders in such cases for placement with
the Department of Human Services shall be reviewed by the court or designated
authority at least annually to determine if continued placement with the
department is in the best interest of the child or public.

The duty of support of a child terminates upon the emancipation of the
child. The court may determine that emancipation has occurred and no other
support obligation exists when the child:

(a) Attains the age of twenty-one (21) years, or

(b) Marries, or

(c) Discontinues full-time enrollment in school and obtains full-time
employment prior to attaining the age of twenty-one (21) years, or

(d) Voluntarily moves from the home of the custodial parent or guardian
and establishes independent living arrangements and obtains full-time
employment prior to attaining the age of twenty-one (21) years.

The court may enter an order for alimony consistent with the
provisions of Sections 1 through 7 of this act.

SECTION 12. This act shall take effect and be in force from and after July
1, 2002.

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