H. B. 4562
(By Delegate Harrison and Pulliam)
[Introduced February 25, 1998; referred to the
Committee on the Judiciary.]
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.
§48-1-6. 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.
§48-1-10. 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.
§48-1A-1. Short title.
This article may be cited as the Covenant Marriage Act.
§48-1A-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.
§48-1A-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.
§48-1A-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.
§48-1A-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.
§48-1A-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
.
§48-1A-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.
§48-1A-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.
§48-1A-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.
§48-1A-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.
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.