COVENANT MARRIAGE
A legal union of HUSBAND AND WIFE that requires premarital counseling, marital counseling if problems occur, and limited grounds for DIVORCE.
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. [1997]).
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. [1998]), 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.
FURTHER READINGS
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.
CROSS-REFERENCES
Common-Law Marriage; Defense of Marriage Act of 1996.
