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Introduced Version Senate Bill 469 History

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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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