Covenant Marriage and Legal Perspectives

Covenant Marriage

  • Overview

    • Emerged in response to high divorce rates and negative effects of no-fault divorce (especially on children).
    • Adopted by Louisiana (1997), Arizona, and Arkansas (1997-2001).

  • Requirements for Covenant Marriage

    • Couples must undergo premarital counseling.
    • Must agree to restricted grounds for divorce and additional counseling for dissolution of marriage.

  • Marriage Requirements

    • Declaration of intent signed by both parties.
    • Mandatory premarital counseling.

  • Divorce Restrictions

    • Limited grounds for divorce include:
    • Adultery
    • Felony conviction (imprisonment)
    • Physical/sexual abuse
    • Abandonment (minimum of 1 year)
    • Living separate and apart for 1-2 years
    • Mutual agreement for dissolution
State Laws: Arizona Example (Ariz. Rev. Stat. Ann. §§ 25-901 et seq.)

  • Marriage Formation (§ 25-901)

    • Declaration of intent must be included on marriage license.
    • Required documents:
    • Written declaration of intent
    • Affidavit confirming premarital counseling
    • Notarized attestation from clergy or counselor

  • Existing Marriages: Conversion (§ 25-902)

    • Existing marriages can be converted by filing a declaration and sworn statement.
    • No premarital counseling required.

  • Dissolution (§ 25-903)

    • Divorce allowed under specific conditions, such as abuse or mutual agreement.

Scholarly Perspectives

  • Concerns About Marriage Obsolescence

    • Lynn D. Wardle discusses revitalization efforts.
    • Elizabeth Scott & Robert E. Scott argue marriage is threatened.
    • Akers & Kohm link economic policies to marriage decline.

  • Practical Issues

    • Pre-divorce Counseling: Challenges in enforcement and incentivizing participation rather than imposing requirements.
    • Policy Goals: Strengthening family bonds and promoting stable marriages.
Key Questions for Legislators
  • How to steer public policy towards stronger marriages?
  • Should covenant marriage legislation be introduced in new states?
Advice to Legislators
  • Balance individual autonomy with societal benefits.
  • Ensure resources are available for counseling programs.
  • Avoid overly restrictive laws that may disproportionately affect certain populations.
Advice to Couples
  • Covenant marriage is recommended for those with strong beliefs about marriage permanence.
  • Traditional marriage may be better for those seeking flexibility.

Choice of Law and International Marriage Recognition

  • Marriage Validity

    • Determined by the law of the state with the strongest relationship to the marriage.

  • Public Policy Exception

    • States can refuse to recognize marriages violating local norms (ex. child marriage).
Case Example: Mejia v. American Airlines

  • Issue: Does a Colombian unión marital de hecho qualify as marriage under Florida law?

  • Holding: Did not meet solemn requirements of a marriage under Colombian law or Florida law.

  • Key Takeaway: Foreign unions must meet formal marriage requirements for valid recognition under U.S. law.

Broader Implications

  • Marriage Formalities vs. Essentials: Governed by local laws (lex loci celebrationis) vs. personal law (lex patriae or lex domicilii).

  • Ethical Considerations for Lawyers: Handling objections to marriages (e.g., same-sex, interfaith).

Significance of Covenant Marriage

  • Represents an effort to promote marital stability but raises enforceability and individual rights questions.

  • Historical Context

    • States have traditionally regulated marriage.
    • Key case: Loving v. Virginia (1967) restricted states' abilities to regulate marriage based on race.

Restricted Marriages

A. Restrictions on the Basis of Race

  • Background

    • Antimiscegenation Laws: Aimed at prohibiting interracial marriages, justified by claims of racial integrity.

  • Key Case: Loving v. Virginia (1967)

    • Facts: Mildred Jeter and Richard Loving challenged Virginia's anti-miscegenation laws after being sentenced to exile.
    • Holding: Law violated Equal Protection and Due Process Clauses of the Fourteenth Amendment.
    • Key Takeaway: Racial classifications in marriage restrictions are unconstitutional.
B. Marriage as a Right under Substantive Due Process

  • Background

    • Marriage recognized as a fundamental right.
    • Key case: Zablocki v. Redhail (1978) - Wisconsin statute requiring court orders for individuals with child support obligations.

  • Holding: Statute violated fundamental right due to substantial barriers on marriage rights.

C. Plural Marriages

  • Background

    • Polygamy presents challenges to state restrictions citing religious freedoms.

  • Key Case: Brown v. Buhman (2013)

    • Holding: Law prohibiting religious cohabitation violated constitutional rights under Free Exercise and substantive due process.
    • Key Takeaway: Selective enforcement undermines justifications for regulating polygamy.

Key Takeaways

  • Marriage is a fundamental right protected under constitutional law and must not face undue restrictions.
  • Regulations must serve a compelling interest and be narrowly tailored to avoid infringing on individuals' rights.
  • Landmark cases like Loving and Zablocki affirm this principle, ensuring marriage rights against discriminatory laws.