A legal union ofhusband and wifethat requires premarital counseling, marital counseling if problems occur, and limited grounds fordivorce.
The declining stability of U.S. marriages has been dramatic. In 2002, the census bureau issued a study that concluded almost half of all first marriages will end in divorce. The rise in the divorce rate began in the 1960s and accelerated in the 1970s, after most states enacted nofault divorce laws, which made it much easier for married couples to dissolve their marriage contracts. By the 1990s, a small but vocal number of people argued that it was too easy to divorce. Prior generations of husbands and wives had worked out their problems and preserved their marriages. Current divorce laws allowed couples to quit a marriage at the first sign of trouble.
These concerns led Louisiana, in 1997, to enact the first covenant marriage law in the United States (L.S.A.-R.S. 9:272 et seq. ). The law created two forms of marriage in the state: the traditional marriage contract, with minimal formalities of formation and dissolution, and a covenant marriage, which imposes heightened requirements for entering and leaving a marriage. Supporters of the covenant marriage law saw it as a way to strengthen marriages and families. Opponents expressed doubts. They were troubled over the creation of a marriage contract that had religious connotations—the word covenant is associated in Christianity with a contract between man and God. Critics also pointed out that there would be additional costs associated with the additional requirements.
The law mandates three significant requirements for couples who choose to enter into a covenant marriage: (1) the couple must legally agree to seek marital counseling if problems develop during the marriage; and (2) the couple can only seek a divorce or legal separation for limited reasons. In addition, before obtaining a covenant marriage license, the couple must receive premarital counseling from a priest, minister, rabbi, clergyman of any religious sect, or a professional marriage counselor.
For the premarital counseling to be accepted by the state the couple must sign a notarized affidavit, which is attested to by the counselor, that (1) the counselor has discussed the seriousness of a covenant marriage; (2) the commitment to the marriage is one for life; (3) the couple will fulfill the obligation of seeking marital counseling if problems arise in the marriage; and (4) they received an informational pamphlet on the legal requirements of covenant marriage prepared by the Louisiana attorney general. The state grants a marriage license when the couple furnishes both the affidavit and a signed declaration of intent to enter into a covenant marriage. In addition, couples who have been married under the traditional marriage contract have the option of converting to a covenant marriage by filing a declaration of intent and participating in marital counseling.
Once married, a husband and wife are expected to commit to a lifetime partnership. However, the law recognizes that some couples will want to separate or divorce. The covenant marriage provisions require a spouse to first obtain counseling and then prove one or more grounds for separation or divorce as listed in the statute. This is the key difference between the two types of marriage: in essence, a spouse has to prove fault by the other spouse. The grounds for legal separation are: adultery by the other spouse; commission of a felony by the other spouse and a sentence of imprisonment at hard labor, or death; abandonment by the other spouse for one year; physical or sexual abuse of the spouse or of a child of either spouse; the spouses have lived separate and apart for two years; or habitual intemperance (for example, alcohol or drug abuse), cruel treatment, or severe ill treatment by the other spouse. The reasons for divorce exclude this last ground but include the other four.
The enactment of the Louisiana law did not signal a swift change in marriage law preferences. In the first year only one percent of couples elected covenant marriage; the rate remains less than five percent. Advocates of covenant marriage introduced similar legislation in other states but the results have not been overwhelming. Arizona passed a covenant marriage law in 1998 (A.R.S. § 25-901 et seq. ), but it is less restrictive in setting grounds for divorce and does not have a two-year waiting period. Arkansas passed its covenant marriage law in 2001 (Covenant Marriage Act of 2001, § 9-11-801 et seq.). At least 16 other state legislatures considered laws between 1999 and 2002, but failed to enact them.
It is too early to tell whether covenant marriage will gain in popularity or whether other states will enact similar measures. In addition, it will take many years for researchers to assess the effectiveness of this type of marriage contract and to determine whether it helps couples avoid divorce. The small number of couples who seek covenant marriage may be the very ones who would have succeeded with a traditional marriage, as they have demonstrated a serious commitment to making their marriages last.
Hager, Susan. 1998. "Nostalgic Attempts to Recapture What Never Was: Louisiana's Covenant Marriage Act." Nebraska Law Review 77.
Scott, Elizabeth S. 2000. "Social Norms and the Legal Regulation of Marriage." Virginia Law Review 86.
Spaht, Katherine Shaw. 1998. "Louisiana's Covenant Marriage: Social Analysis and Legal Implications." Louisiana Law Review 59.
Common-Law Marriage; Defense of Marriage Act of 1996.