Covenant marriage

Covenant marriage, type of marriage contract, currently available in three U.S. states, that imposes relatively strict requirements for entering into and ending a marriage as compared to standard marriage contracts in other states. Notably, signatories to a covenant marriage forgo the possibility of a no-fault divorce, which allows for the dissolution of a marriage without proof of wrongdoing on the part of either spouse. Legislation providing couples with the option of covenant marriage was adopted in Louisiana in 1997, in Arizona in 1998, and in Arkansas in 2001. The legislatures of several other states have considered but not yet adopted covenant marriage statutes. In the states in which covenant marriage is available, couples married under standard contracts may convert their marriages to covenant form by filing a declaration of intent and satisfying the relevant entrance requirements.

Despite being available in Louisiana, Arizona, and Arkansas for more than 20 years, covenant marriages in those states have remained extremely rare: in Louisiana, the proportion of covenant marriages among new marriage contracts in any given year has never exceeded 5 percent, and the proportion in Arizona and Arkansas has not exceeded about 1 percent.

Purpose of covenant marriage

Both supporters and critics of covenant marriage recognize that the institution is designed to reduce divorce rates in the United States and in particular to limit the prevalence of no-fault divorce, which has become a common feature of marriage contracts in most states. Many social commentators believe that no-fault divorce has weakened marriage as a social institution by encouraging a casual or unserious—“easy in, easy out”—attitude toward what should be a lifelong commitment. The language of covenant marriage statutes typically emphasizes the opposite viewpoint, requiring signatories to declare that they intend to live together forever and that their marriage can be dissolved only under rare and extreme circumstances.

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Requirements of covenant marriages

Covenant marriages generally require applicant couples to undertake a lifelong commitment of each partner to the other and to agree to pursue counseling if confronted with serious marital problems. Couples must also certify the completion of premarital counseling with a licensed clergy member or secular couples therapist. A spouse in a covenant marriage who wishes to obtain a legal separation or to end the marriage altogether must first attend marriage counseling and then legally prove either that the other spouse (the respondent) has committed one or more acts constituting grounds for legal separation or divorce under the covenant-marriage statute or that the spouses have continuously lived separately and apart for a minimum period of one or two years. Among the acts serving as grounds for legal separation or divorce in the three covenant-marriage states are

• adultery
• a felony of which the respondent has been convicted and sentenced to prison or death
• abandonment of the married couple’s home for at least one year
• physical or sexual abuse of the spouse or of a child of either or both spouses
• habitual intemperance (e.g., drug or alcohol abuse) by the respondent

Arguments for and against covenant marriage

Proponents of covenant marriage argue that it is a noncoercive measure that advances a social good by counteracting rising divorce rates in the United States. They also believe that covenant marriages serve to protect women and children, who tend to be disproportionately harmed by divorce.

However, not all social commentators agree that lowering divorce rates is uniformly beneficial to society. Some argue that effectively encouraging people to remain in unhappy or even abusive marriages is in fact a social ill.

Some critics of covenant marriage have also argued that its creation by state governments amounts to a potential violation of the establishment clause of the U.S. Constitution insofar as it institutionalizes a conservative Christian conception of marriage as a sacred and inviolable commitment to life with another person. (A religious inspiration for covenant marriage is suggested by the term covenant, which can refer to a binding agreement between humanity and God.) Defenders of covenant marriage have noted in response that the relevant legislation allows but does not require religion-based marriage counseling and that the laws’ primary goal of reducing divorce rates and promoting long-lasting marriages is secular, even if it may also reflect the values of Christian and other religious communities.

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Other critics have argued that covenant marriage’s existence amounts to a state-sanctioned two-tiered system of marriage in which the covenant form is implicitly presented as “ideal.” The result is a political and cultural atmosphere in which potential spouses feel pressured to enter covenant marriages and standard marriages are denigrated or devalued. Ironically, in the view of critics, the latter consequence serves to undermine the very institution that covenant marriage is supposedly designed to strengthen.

Some objections to covenant marriage are similar to those directed at fault-based (as opposed to no-fault) divorce in their contention that the imposition of undue obstacles to ending a marriage is unjust. Spouses in a covenant marriage are required to produce proof of a partner’s wrongdoing in order to obtain legal separation or divorce. But the necessary proof can sometimes be difficult for spouses to supply. Proving wrongdoing can be particularly difficult for victims of domestic violence, who must recount their abuse in potentially traumatic testimony in court.

Finally, as many lawyers and legal scholars have pointed out, the divorce restrictions imposed in covenant marriages may be (and have been) avoided in cases where a spouse or couple in a covenant marriage seeks a divorce in a state that does not have covenant marriage laws. Although covenant marriages are necessarily recognized as legitimate in all 50 states, the divorce laws in effect in states without covenant marriage apply equally to those who may have entered into a covenant marriage in another state. Therefore, all covenant-marriage restrictions on divorce may be evaded by filing a qualified petition for divorce under another state’s no-fault criteria.

Among the most prominent persons married under covenant terms is Mike Johnson, a Republican member of Congress from Louisiana and the current speaker of the U.S. House of Representatives.