Senate Bill No. 469
(By Senator Harrison)
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[Introduced March 7, 2005; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact §48-2-104 and §48-2-202
of the Code of
West Virginia, 1931, as amended; and to amend said code by
adding thereto a new article, designated §48-2A-1, §48-2A-2,
§48-2A-3, §48-2A-4, §48-2A-5, §48-2A-6, §48-2A-7, §48-2A-8,
§48-2A-9 and §48-2A-10,
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 §48-2-104 and §48-2-202
of the Code of West Virginia,
1931, as amended, be amended and reenacted; and that said code be
amended by adding thereto a new article, designated §48-2A-1,
§48-2A-2, §48-2A-3, §48-2A-4, §48-2A-5, §48-2A-6, §48-2A-7,
§48-2A-8, §48-2A-9 and §48-2A-10
, 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 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.
§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 five, 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 five, 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 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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