West Virginia Covenant Marriage bill


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H. B. 2208

(By Delegate Steve Harrison)
[Introduced January 14, 1999; referred to the
Committee on the Judiciary.]

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 1A is new; therefore, strike-throughs and underscoring have
been omitted.

A BILL to amend and reenact sections six and ten, article one, 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 one-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 pamphlet.
Be it enacted by the Legislature of West Virginia:
That sections six and ten, 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 one-a, all to read as follows:
ARTICLE 1. MARRIAGE.
ß48-1-6. Application for license; requirements for issuance of license.
Every license for marriage shall be issued by the clerk of the county
commission of the county in which either party usually resides, except that
where both parties are nonresidents of the state of West Virginia, the
license shall be issued by the clerk of the county commission of the county
in which application is made. The license shall be issued not sooner than
three days after the filing with the clerk of a written application therefor.
The day on which the application is filed shall be counted as the first day,
but two full days shall elapse after the day of filing before the license
shall may be issued. Before any license is issued, each applicant shall file
with the clerk a certificate or certificates from any physician duly licensed
in the state, stating that each party has been given an examination,
including a standard serological test, as may be necessary for the discovery
of syphilis, made not more than thirty days prior to the date on which
license is issued, and stating that in the opinion of the physician the
applicant either is not infected with syphilis or, if so infected, is not in
the state of the disease which is or may later become communicable. The
examinations and tests required by this section may be given as provided by
section nineteen, article four, chapter sixteen of this code.
The application for a marriage license shall contain a statement of the
full names of both parties, their social security account numbers, their
respective ages and their places of birth and residence. Effective the first
day of September, one thousand nine hundred ninety-three, The application for
a marriage license shall also contain the following statement:
"Marriage is designed to be a loving and lifelong commitment between a
woman and a man. The laws of this state affirm your right to enter into this
marriage and at the same time 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, as well
as other provisions of the criminal laws of this state, are applicable to
spouses and other family members and violations thereof are punishable by
law."
In cases where 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."
It shall be signed by both of the parties to the contemplated marriage,
under oath before the clerk of the county commission or before a person
authorized to administer oaths under the laws of this state. At the time of
the execution of the application, the clerk, or the person administering the
oath to the applicants, shall require some evidence of the age of each of the
applicants. Evidence of the age of each applicant may be in the form of a
certified or photostatic copy of a birth certificate, a voter's registration
certificate, an operator's or chauffeur's license, an affidavit of both
parents or legal guardian of the applicant or other good and sufficient
evidence. Where such an affidavit is relied upon as evidence of the age of an
applicant, and one parent is dead, the affidavit of the surviving parent or
of the guardian of the applicant shall suffice; if both parents are dead, the
affidavit of the guardian of the applicant shall suffice. If the parents of
the applicant are living separate and apart, the affidavit of the parent
having custody of the applicant shall suffice. The application shall be
recorded in the register of marriages provided for in section eleven of this
article. The date of the filing of the application shall be noted in the
register. The notation, or a certified copy thereof, is legal evidence of the
facts therein contained.
To the extent otherwise provided by section six-c of this article, The
provisions of this section do not apply, to the extent otherwise provided in
section six-c of this article. Applications for licenses may be received and
licenses may be issued by the clerk of the county commission at anytime his
or her office is officially open for the conduct of business.
ß48-1-10. Endorsement and return of licenses by persons solemnizing marriage;
duties of clerk pertaining thereto.
Every person solemnizing a marriage shall retain the license
authorizing such marriage, and on or before the fifth day of each month shall
forward to the county clerk issuing such license the original of all such
licenses in his or her possession, with an endorsement thereon of the fact of
such the marriage, and the time and place of celebrating the same marriage
and whether the couple intended to enter into a covenant marriage. In the
event that the marriage authorized by such the license is not solemnized
within sixty days from the date of its issuance, then such the license shall
become is null and void. Should the county clerk not receive the said
original within sixty days after its issuance, he or she shall by certified
mail notify each of the applicants of that fact.
ARTICLE 1A. COVENANT MARRIAGE.
ß48-1A-1. Short title.
This article may be cited as the Covenant Marriage Act.
ß48-1A-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 nonbreaching 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.
ß48-1A-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.
ß48-1A-4. Declaration by couples already married.
(a) After the thirtieth day of June, one thousand nine hundred
ninety-eight, 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.
ß48-1A-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 two of this chapter,
except as otherwise provided in this article.
ß48-1A-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.
ß48-1A-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.
ß48-1A-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 cruel or inhuman treatment by either party against the other,
which includes reasonable apprehension of bodily harm, false accusation of
adultery or homosexuality, conduct or treatment which destroys or tends to
destroy the mental or physical well-being, happiness and welfare of the other
and render continued cohabitation unsafe or unendurable: Provided, That under
no circumstances is it necessary to allege or prove acts of physical violence
in order to establish cruel and inhuman treatment as a ground for separation
from bed and board;
(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.
ß48-1A-9. Attorney general to publish pamphlet.
The attorney general shall, prior to the first day of July, one
thousand nine hundred ninety-eight, 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 article.
ß48-1A-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.


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