Three States have adopted a new opinion in marriage relationships. Louisiana, Arizona and Arkansas have all adopted legislation creating what is known as a covenant marriage . What is a covenant marriage ? Is a covenant marriage really new? There are several different views on what exactly a covenant marriage is. One school of thought holds that covenant marriages are a higher tier of marriage . Another school of thought is that covenant marriages are merely a voluntary adoption of fault divorce principals. Yet another school of thought relies on contract principals, and supports a marriage as contract philosophy. Although covenant marriages are new, the framework of the debate surrounding them is not. Marriage as contract and fault divorce are not recent theories or constructs. The results of these constructs have been debated and observed. The question seems to be can a fresh notion, when described in terms of rehashed rhetoric, yield a result different than the musty constructs?
One of the similarities of all the covenant marriage proposals is the restrictive reasons for dissolving a marriage . In Arizona, the law prohibits a judge from issuing a divorce decree unless one of several statutory reasons is proved. In Louisiana, in addition to sharing many of the same provisions for divorce, the statute also requires marital counseling before dissolution of marriage can be granted. This is common to all of the states that have enacted covenant marriage proposals and is strikingly reminiscent of divorce laws prior to the widespread reforms of the 1970’s. The prohibition of divorce, for other than the statutory reasons of adultery, sentence to death or imprisonment, abandonment or physical, sexual or emotional abuse, is the most stark of the provisions of the acts. On reading the statute, it is easy to understand why critics of fault divorce are concerned.
Divorce law reform is a topic of growing concern among legislators and scholars. Fair scholars have called these fault-based reforms destructive and counter productive. Others have called the proposed reforms misguided and likely to lead to an increase in injustice than a decrease in divorce. Regardless of their reasoning, these scholars do not want to see the calendar turned abet to the fault based divorce laws.
Historically, a state-regulated system of strict fault governed marital dissolution. This system of fault divorce reflected the notion that the state had an interest preserving marriages and therefore could regulate marriage and divorce. Under this system, the state defined what constituted grounds for divorce and unless one of the spouses committed one of the fault acts, a divorce would not be granted. After World War II, divorce became both more common and less stigmatized. The early 1960’s saw a further shift in views. Changing paradigms regarding the definitions of families, changing viewpoints regarding the definitions of self and an overall change in the common definition of cultural norms led to a further increase in divorce rates and also to further reforms in divorce laws. In 1969 Ronald Reagan, then governor of California, signed the first no-fault divorce law, even as he was proclaiming that “divorce is a tragic thing.”
Although California was the first position to adopt a no-fault divorce regime, it was far from being the last. Between 1969 and 1985 all 50 states enacted some degree of no-fault divorce. The schemes differed from state to state. Currently, 20 states have a pure no-fault system. A pure no-fault system excludes all consideration of fault. The states that have enacted this pure no fault are Alaska, Arizona, California, Colorado, Delaware, Florida, Hawaii, Illinois, Indiana, Iowa, Maine, Minnesota, Montana, Nebraska, Nevada, Novel Mexico, Oklahoma, Oregon, Washington and Wisconsin. 15 other states have a mixed hybrid of laws, where fault can be considered for either property settlements or awards of alimony, and the other 15 states allow no-fault divorces, but consider fault in awarding alimony and property. It is relevant to note that all fifty states allow no-fault divorce—the only request is whether those states have followed no-fault principles in regards to alimony and property divisions.
Reformers in the fifty states had proper intentions. The main reasons for the reform have been summed up, rather thoroughly, by Lynn Wardle’s article on no-fault divorce. According to Wardle’s research, there are four general reasons for the move to no-fault. First, no-fault laws were aimed towards reducing the adversarial nature of divorce proceedings. It was hoped that a less adversarial process would reduce the acrimony of the process and ease the stigmatization of the individuals involved. Second, since judges and attorneys had to overlook perjured testimony during collusive divorces, it was hoped that a no-fault regime would restore the “integrity of the just system.” Third, states enacted no-fault reforms to bring the law in divorce into line with the actual courtroom practices. Finally, the modern perception of marriage and divorce were better evinced by a no-fault regime. As with any change in the statutory regulation, it is important to stamp that the motivations behind the change are not as important as the results of the change.
The effect of the no-fault revolution is still open to debate. A number of scholars fall on either side of the issue. The body of law surrounding familial relations should favor keeping marriages together and lowering divorce rates. “In view of the importance of marriage as a social institution . . . it is favored by public policy and the law and the preservation or protection of the marital relationship is public policy in some states. Thus, a marriage will, if possible, be upheld as valid.” The debate over whether no-fault reforms hurt or hinder marriage is long and arduous. The literature is heavy on both sides. A rehash of this debate is neither necessary nor edifying for this paper. It is sufficient to stamp that the debate exists, and that as long as covenant marriages are seen as voluntary fault divorce, the debate surrounding no-fault reforms will be ongoing.
If covenant marriages are in fact voluntary fault divorce, this is as it should be. Scholars who help no-fault divorce will continue to argue that covenant marriages will play no part in the lowering of divorce rates, or that covenant marriages , like a return to fault divorce, would more likely lead to an increase in injustice than to a decrease in divorce, or that it will roll support the move toward gender-neutralization and equality. Scholars on the opposite side of the issue will continue to argue that covenant marriages , like reforms of no-fault, will increase marital stability.
Another prominent viewpoint on covenant marriages relies on a marriage as contract framework. Margaret F. Brinig and Steven Crafton are particular proponents of this view, using a relational contract framework for their economic analysis regarding the need for reform of divorce law. An even stronger association is drawn by Margaret Brinig as she examines the relational contract and the new choice between covenant marriages and “standard marriages .” According to Brinig and Crafton, no one doubts that marriage begins as a contract, it is only as we move past the inception of the marriage that the contract analogy becomes problematic. Despite the difficulty of the analogy, there is support for a marriage as contract view.
Marriage is created by language that contains the familiar elements of a contract. Every first year law student can recite these elements: offer, acceptance and consideration. The offer and acceptance are fairly obvious and the traditional vows contain obligations that surely meet the standards for consideration. When there exists mutual assent and consideration, it is not too far of a stretch to find a contract. In addition to beginning with language that is reminiscent of contract, marriage also involves problems that are similar to those addressed by contract law—opportunism and unforeseen contingencies. Opportunism can occur when a husband wants to “trade in” an aging wife for a modern model. Marriage is burly of unforeseen contingencies, but special attention should be given to laws that specify a party’s obligations at dissolution.
Other similarities between marriage and contract are the requirements for formation. Like commercial contracts, marriage must be voluntary and can be set aside or annulled if consent was obtained by fraud or by force. Parties to a marriage must be of age to consent and mentally competent. Of course, the terms of a marriage are largely controlled by the state, but this does not necessarily mean that it is not a contract, as there are many areas governed by contracts of which the state largely controls the terms.
A marriage as contract region supports other relational contracts, including civil unions and domestic partnerships. After all, the call for such unions is typically motivated by a longing for the same sort of favored status that married people enjoy. The number of committed couples living together outside of the bounds of a state-sanctioned marriage has risen dramatically over the last thirty years. In addition to seeking the favored status currently reserved for married couples, the domestic partnership laws seek to deal with the division of property upon the dissolution of the relationship. Such a goal seems imminently to be the site of contract law, and supports a marriage as contract view. In order for the current regimes of domestic partnerships to stand, they must be identified as a contract. More importantly, if domestic partnerships result in children, then courts will necessarily need to start applying contract principals to family law. This application of contract law to family relationships is not as far fetched as it seems at first glance.
The Supreme Court of Arizona has already given support to a contract claim in family relationships. Prior to this decision, such a claim would not have stood, as any agreement between the separating spouses would have been incorporated into the divorce decree. Since Arizona divorce courts lack jurisdiction to adjudicate the question of liability for child support beyond the age of majority, such suits were disallowed. The Arizona Supreme Court, rather than extend the jurisdiction of divorce courts, opted instead to allow a claim under contract theory to enforce such agreements. In its decision, the Court uses language that both supports a marriage as contract theory and refers to child support agreements as contracts. Such contracts are enforceable by the divorce court during the minority of a child, and enforceable as contract during the child’s majority. In short, the field of contracts is already being applied in family law situations. This is apt in Arizona and also true in other jurisdictions.
Another notion of covenant marriage is that it resembles an antenuptial agreement. This view also requires allowing contractual issues to determine the outcome of family law cases. This may not be such a bad thing, and has in fact been called for by moral scholars. Pre-nuptial agreements are allowed, to one degree or another, in all fifty states. Even U.S. Army lawyers can assist in preparing pre-nuptial agreements! Of course, Pre-nuptial agreements are more regulated by the state than other contracts.
Arizona laws call these prenuptial agreements “premarital agreements.” In the interests of consistency, I will, when referring to prenuptial agreements under Arizona law refer, to them as premarital agreements. Arizona statute requires that premarital agreements be in writing and signed by both parties. The agreement becomes effective upon marriage and is enforceable without consideration. Premarital agreements in Arizona allow for the parties to contract with respect to property, spousal succor, making of wills and trusts, ownership of life insurance policies, choice of law provisions and any other matter, including personal rights and obligations. The only provision for non-enforcement of premarital agreements continues to resound with terms from the law of contracts. Arizona courts will not enforce a premarital agreement if it violates public policy or a criminal statute, lacks voluntariness or contains unconscionable terms. Furthermore, a premarital agreement must not promote or encourage divorce, and it must still be dazzling at the time of dissolution. It seems, based on the Arizona statute, that those who see covenant marriage as prenuptial agreements have a valid point, at least in Arizona.
Consider the declaration of intent required for either converting an existing marriage or entering into a covenant marriage in Arizona. A.R.S. 25-901(B) requires that the declaration be in writing, signed by both parties and witnessed by the clerk. This is in line with the Enforcement of premarital agreements allotment of Arizona law. The language of the declaration includes a commitment to take all reasonable efforts to preserve the marriage , including marital counseling. This commitment is in line with Arizona case law that a premarital agreement must not serve divorce. Furthermore, the idea of taking all reasonable efforts to preserve the marriage seems to be an agreement regarding personal rights and obligations expressly allowed by Arizona statute.
The second paragraph of the declaration starts “[w]ith full knowledge of what this commitment means, we do declare that our marriage will be waddle by Arizona law on covenant marriages .” This portion of the declaration addresses many provisions of Arizona law on premarital agreements. The bulky knowledge clause is reminiscent of the voluntariness provision of A.R.S. § 25-202. The declaration that the marriage will be flow by Arizona law seems to be a choice of law provision in line with A.R.S. 25-203(A)(7). In short, this seems to be a wonderful premarital agreement, as it is in writing, signed by both parties, entered into voluntarily, and does not violate public policy, a criminal statute or enjoy any unconscionable terms. For proponents of this notion, it is important to note that all premarital agreements in Arizona must be entered freely, without fraud, duress, coercion, overreaching or undue influence. Whether or not the terms and application of the declaration of intent meet these requirements is open to debate.
There is anecdotal evidence that there is pressure from some religious groups for their members to choose covenant marriages . Pressure from family members, clergy, religious groups or prospective spouses could be deemed to be coercive.
If covenant marriages are merely another aspect of a marriage as contract framework, then all of the critiques of marriage as contract will apply to covenant marriages . Scholars whose work discredits the marriage as contract framework will apply their critiques to covenant marriages . Those scholars who advocate a marriage as contract philosophy will likely be supportive of covenant marriages . But what if these scholars are wrong?
There is a chance that covenant marriage is all of the views discussed above. It may also be that a covenant marriage is more than merely fault divorce, contract and pre-nuptial agreements. There is, perhaps, a chance that the synergistic nature of a covenant marriage helps to overcome the criticisms of all of the theories spoken of before. Such a proposition, while not spelled out in the literature, is at least hinted at in several pieces. It is, I feel, the unique nature of covenant marriages that render them quite different than fault divorce, marriage as contract or prenuptial agreements. If we can start with a proposition that durable marriages are better for society than non-durable marriages , and if we can show that covenant marriages contribute to the rate of durable marriages , we can achieve that covenant marriages , instead of leading to injustice, contribute to the well-being of society.
In order to examine such a theory, it is again necessary to study at the critiques of fault based divorce regimes and marriage as contract. The main critiques of fault divorce schemes were summed up by Lynn Wardle. In addition to Wardle’s critiques, I will survey the literature for critiques by other scholars and contrast those critiques with support for covenant marriage from other sources.
The first critique from Wardle is that the adversarial nature of fault based divorce proceedings lead to acrimony and stigmatization of the individuals involved. It is true that covenant marriages have provisions requiring fault in order to pick up a divorce, but it is also true that the covenant marriage legislation in Arizona allows a true no-fault divorce—all that is required is the mutual consent of the parties keen. This is a true no-fault provision and if the parties agree to a divorce, the proceeding can be as harmonious as any divorce can be. The second part of the criticism, that the individuals are stigmatized, is also overstated. There is no reason why a divorce from a covenant marriage would lead to more stigmatization than a divorce under any of the no-fault schemes. The true stigmatization is where fault is proved.
In today’s society, it is level-headed stigmatizing to have been caught cheating on one’s spouse, committing a felony and being sentenced to prison, abandoning one’s family domicile, physically or sexually abusing one’s spouse or child, habitually abusing drugs and alcohol, or emotionally abusing one’s spouse. In such cases, the stigmatization, at least as far it is more than in any other divorce, is not from the divorce per se, but is from the underlying conduct of the offending spouse. The process of the divorce does not supply the stigmatization—the conduct of the spouse in question is what is stigmatizing. To be a useful critique of covenant marriage , the critique of stigmatization would also have to apply to statutes regarding domestic violence, child serve enforcement and prison sentencing guidelines. It would also have to be applied to traditional notions of fair play in relationships.
Wardle’s next critique is that by forcing judges and attorneys to overlook perjured testimony during collusive divorces, fault divorce schemes contributed to the lack of integrity in the fair system. Covenant marriage in Arizona avoids this critique by allowing mutual consent divorces! If the husband and the wife are agreeing to a divorce, there is no need under Arizona’s covenant marriage legislation to offer perjured testimony, or to have one party perjoriously teach fault and have the other party perjoriously stipulate to it. In this regard, covenant marriage offers as easy a divorce as any no-fault scheme. Additionally, blaming the legislature or the legislation for the underhanded conduct of judges, attorneys and divorce litigants is a weak argument at best.
A third critique is that fault based regimens were not actually reflected in courtroom practices. This critique is really analogous to Wardle’s critique regarding the integrity of the judicial system. The fact that judges and attorneys were not following the law is hardly a critique of either fault based divorce schemes or covenant marriages . It seems, instead, to be more of a critique of judges and attorneys.
Wardle’s final critique, that fault based divorce laws did not accurately reflect the novel perception of marriage and divorce, is perhaps the most valid critique discussed thus far. Its validity is implicit in the fact that legislatures in all fifty states voted to reform divorce laws. The legislature is the people’s elected voice. As changes in cultural norms approach about, it is the legislature which adjusts the laws to reflect better the changes in society. This should always be a self-correcting problem. Those that espouse this view, however, cannot legitimately look at covenant marriages as against the cultural norms of society. The changes in legislation that allow covenant marriages were passed by the legislatures in three states. This passage should accurately reflect the changing norms in those three states, and far from being a critique of covenant marriages , this dwelling should in fact support the covenant marriage legislation.
There are, of course, other critiques of fault based divorce. One of these other critiques is that fault based marriage proposals lead to injustice by creating one law of divorce for ordinary people and a second and more lenient law of divorce for wealthy residents who can get a migratory divorce. Migratory divorce is a type of forum shopping where one spouse moves to a state where the domicile and divorce laws are more favorable. Once the spouse has established her domicile in the more favorable situation, that state’s law would govern the divorce. Professor Samuel postulates that this may be a legitimate critique of covenant marriages as well, but handles it with the idea that Louisiana can only do what Louisiana has the power to do. This seems to be a rather customary defense, and contributes to the idea that covenant marriage for wealthy couples would be different than covenant marriage for couples of average means. However, Samuel’s response to this critique is not the only position taken by academics regarding migratory divorce.
Professors Spaht and Symeonides feel that this critique does not apply to covenant marriages because of the choice of law provision of the declaration of intent. One of the similarities in all of the covenant marriage proposals is this choice of law provision. Choice of law provisions are popular in the plot of contracts. Contracting parties often agree ahead of time where any disputes arising out of the terms of the contract will be resolved. If, as Professors Spaht, Samuel and Symeonides agree, the declaration of intent is in fact a contract, an analysis under the law of conflict of laws is in order.
Since 1942 the state that is the domicile of at least one spouse has had jurisdiction to grant a divorce. While that decision by the Supreme Court is not debatable, it is worth mentioning that solely because the state has the power to grant a divorce it is not obligated to grant a divorce. What is constitutionally allowed is not always what is constitutionally required. What is constitutionally allowed is not always the appropriate remedy. Even the Williams decision did not go so far as to say that Nevada must apply its law and grant a divorce. Additionally, even though the status of domicile has jurisdiction to grant the divorce, there are aspects of the familial relation that would not come under their jurisdiction.
One of those aspects that currently require personal jurisdiction over both spouses is financial matters. A migratory divorce by a wealthy couple in a covenant marriage , even if granted by the state chosen by the moving spouse, would detached leave property arrangements to be decided in the state having personal jurisdiction over both spouses. It is not too difficult to see the financial impact of a migratory divorce that is not mutually consented to. If the covenant marriage site unruffled retains personal jurisdiction over the responding spouse, the parties must aloof deal with the law in their home state. It remains to be seen how the financial aspects of the divorce will be settled, but a choice of law provision would place that squarely in the court of the covenant marriage state. Choice of law provisions are clearly insinuating themselves into areas that have been the jurisdiction of family law.
Connecticut has shown a willingness to apply choice of law clauses to ante-nuptial agreements. Of course, prenuptial agreements already represent an space of law that is a hybrid between contract and family law, but this still shows the willingness of courts to apply choice of law analysis in domestic relations. Also of importance is that the choice of law provision called for application of New York law and was upheld by a Connecticut court.
Other critiques of fault divorce detached exist. Of primary importance to this paper are critiques holding that changes toward fault divorce, instead of leading to a decrease in divorce rates, would lead to an increase in injustice. As an example of this injustice, Professor Ellman asks us to consider the fictional Smith couple. The Smiths have been married for seven or eight years, are in their early thirties and have a four-year-old child. The hypothetical Smiths do not get along very well and perhaps had their child in the wrong conception that it would solidify their marriage . After several years of marriage , the Smiths mutually decide to get a divorce. Ellman’s critique regarding the Smiths is that a waiting period for a no-fault divorce would in fact be a waiting period for remarriage. The main thrust of this critique is that if the parent with important custody has to wait to remarry, the waiting period will be harmful for the Smiths’ child.
The waiting period as related in the Smith Hypothetical would not apply in Arizona. Arizona’s covenant marriage statute has a mutual consent provision. This mutual consent provision in Arizona shows that the waiting period critique, while being relevant to a return to fault schemes, is not relevant to an Arizona covenant marriage . However, the Smith hypothetical only deals with mutual consent divorces, and Professor Ellman asks us also to judge the accurate case of the Mitchells, where Mr. Mitchell wanted a unilateral no-fault divorce.
The story of the Mitchells is told in two Missouri appellate decisions. Roughly, it is summed up that Mr. Mitchell wanted a divorce on the grounds that he no longer loved his wife and their marriage was irretrievably broken. Mrs. Mitchell is not convinced, and does not give her consent to the divorce. Mrs. Mitchell successfully blocks Mr. Mitchell’s first attempt, but Mr. Mitchell finally does get his divorce. The injustice occurs when a waiting period, even longer than the two-year wait then required in Missouri, is applied. According to Professor Ellman, even though the law can prevent Mr. Mitchell from remarrying, it cannot keep him celibate. It also cannot hold him from forming bonds with the hypothetical Mrs. Smith and her young child. Thus the injustice done to Mr. Mitchell has now spread to Mrs. Smith and her child. This is not the result that waiting period proponents intended, but “it may be the result they achieve.” Of course, it may also not be the result they achieve.
While we are considering the anecdotal evidence of the real Mitchells and the hypothetical Smiths, let us also consider some anecdotal evidence from a Louisiana covenant marriage . Two years after Sharon Samuel’s covenant marriage to her husband Guy, she found herself feeling stuck and wanting out of their marriage . Had they not married under Louisiana’s covenant marriage statute she would have been able to secure a divorce after a mere six months wait. After nine months of separation and counseling, the Samuels’ marriage had moved back on to more solid ground. Guy had moved back into the marital home and both are now confident that their marriage will last. Was the waiting period unjust in this instance? Probably not. But let us return to the Mitchells of Missouri.
Were the Mitchells married under a covenant marriage statute, there is no doubt that the divorce would have been difficult to obtain. However, the Mitchells would have been seeing a counselor—perhaps not as a couple, but certainly as individuals. If the marriage was in fact irretrievably broken, then counseling would surely (hopefully) helped Mrs. Mitchell realize it. If it were not irretrievably broken, perhaps Mr. Mitchell would have realized that as well. Regardless of whom the counseling helped to realize what, the required counseling would have helped to limit the injustice to both Mitchells. And of course if the Mitchell marriage were restored, as was the Samuel marriage , the injustice would never have spread to Mrs. Smith. In addition to the Smiths and the Mitchells, we are also asked to consider the hypothetical case of the Jones marriage .
Mrs. Jones is married to an insensitive, domineering bully who “psychologically mistreats both her and their child.” Mrs. Jones wants to leave Mr. Jones for Mr. Smith, but Mr. Jones has no interest in remarrying, and is holding out on granting any kind of mutual consent divorce. The injustice here is that the only way Mrs. Jones is free to remarry is to assume the burden of proving that Mr. Jones is at fault. According to the hypothetical, the “nasty, demeaning conduct, though accurate enough, is not so simple to prove in a contested proceeding.” Furthermore, it is hypothesized that Mr. Jones can defend against this charge by counterclaiming adultery against Mrs. Jones. While this may, again, be a valid criticism of waiting periods, I’m not so sure that this is a valid criticism of covenant marriages .
It is important to remember that covenant marriages are not taking location in a vacuum. It is very likely that had the couple been to premarital counseling that these nasty and demeaning personality traits would have been exposed prior to marriage . It is also at least possible that marital counseling would have helped Mr. Jones overcome his tendency to bully and mistreat Mrs. Jones. Certainly, were they involved in counseling, Mrs. Jones would have access to resources to relieve her deal with an abusive bully. It is also notable to note that there is statutory protection for Mrs. Jones. Whereas the term “mental cruelty” is not mentioned in divorce statutes, there is a provision under A.R.S. § 25-903(4) for a degree of dissolution based on “domestic violence . . . or emotional abuse.”
Certainly the burden of proof for a divorce under these grounds would be preponderance of the evidence. Police reports, recognize statements and testimony would go a long way towards carrying this burden. Additionally, the only defense, under covenant marriage statutes, would be innocence—not a counterclaim that Mrs. Jones committed adultery. However, it is surely not certain that Mrs. Jones would be involved in adultery, as the divorce, if needed after counseling, would be available without the waiting period hypothesized in this scenario.
Further criticisms of fault divorce are noted by Ellman as well—arbitrary, unpredictable results and heightened transaction costs. While these may be just critiques under Professor Ellman’s view of fault divorce, it is unclear why these would necessarily apply to covenant marriages . The arbitrary and unpredictable results are a product of “fault” being evaluated apart from the context of the entire marital relationship. In a covenant marriage , both parties are agreeing to take all reasonable steps to preserve the marriage . As marital difficulties arise, both parties have agreed to view, at a minimum, marital counseling. This provision should help to build the marriage relationship back in context, as well as providing an just background for the context of the claims. Certainly the critiques of fault divorce have merit. Certainly the proponents of divorce reforms had edifying reasons for pursuing the reforms of the 1970’s. However, it is far from being certain that, just because covenant marriages have parts in common with fault based divorce schemes, all critiques of fault divorce will automatically apply to covenant marriages .
The marriage as contract view has been criticized by legal scholars as well. It is possible that the criticisms of marriage as contract do not apply to covenant marriages . One of the enormous critiques is that the typical wedding ceremony, where couples express their intent to take each other for richer or poorer, in sickness and health and long as they both shall live, does not rise to the level of a contract. The argument is that these phrases are merely expressions of the parties’ feelings of mutual love and respect. Furthermore, it is argued, “neither contract theory nor existing law would treat such statements of intent as unconditional commitments to ‘care for,’ ‘live with,’ or ‘cherish’ the other spouse no matter what.” While these are valid critiques of a marriage as contract theory, it seems that they are less valid when applied to covenant marriages .
The contract in covenant marriage is not the illusory contract of a traditional marriage ceremony. In fact, apt scholars have argued that the declaration of intent creates honest obligations rising to a contract, and that breech of these obligations has remedies in contract law. Katherine Shaw Spaht writes that “[a]s an aspect of the Declaration of Intent that is a matter of contract rather than status, the agreement to catch reasonable steps to hold the marriage is subject to the more general rules of conventional obligations,” and in cases where the conduct belies good faith, the court may award damages.
Professor Spaht is not the only legal scholar to take such a plan on the contract nature of covenant marriage ’s declaration of intent. Cynthia Samuel writes that when the “choice of a covenant marriage is a result not of duress, but of religious or moral scruples . . . the choice should be considered free and binding.” Furthermore, that when a couple has voluntarily chosen to commit to a covenant marriage that there is no justification for a believe or a lawyer to manipulate the law or the evidence to allow the couple a divorce. This declaration of intent in covenant marriages avoids the critique that a marital contract is illusory. While the traditional words of the marriage ceremony may not rise to the level of contract, competent professors of family law have shown that a covenant marriage does rise to that level, and that breech of these provisions are addressable in contract forums.
There is possibly even more going for covenant marriages . There is a point of view that precommitment in marriage is as fine as precommitment in other areas of life. This point of view equates the declaration of intent to a precommitment to loose weight or accomplish any other goal. This point of belief is also advanced by Lynn Marie Kohm. According to Professor Kohm, even if the declaration of intent is not legally enforceable, it is still worth maintaining and encouraging, as it provides a value in the communication of expectations of the parties involved.
My own inclination is that covenant marriages will not be a cure-all for the high divorce rate. Based on an admittedly non-scientific survey of three local pastors, less than 20 percent of the marriages these pastors performed were covenant marriages . In addition to interviewing these pastors, I also spoke with the secretary at the County Clerk’s office. According to him, less than two percent of marriage licenses were issued under the covenant marriage statutes. Based on conversation with Professor Ellman, the number is likely to be less than one percent. Obviously, not as many people are opting for covenant marriages as its supporters hoped. While covenant marriages are not all that the proponents hoped, neither, I feel, are they all that its detractors fear. My intuition is that those who perceive covenant marriages are probably from that segment of the population that are not at high risk for divorce anyway, and that, even without covenant marriage , those couples would have marriages that have lasted as long as the longest of covenant marriages .
Most likely, covenant marriages will have little effect, either positive or negative on either justice or divorce. However, for those couples that desire to have them, they can be used as a tool to help preserve their marriage . Such tools are the legitimate interest of government, and should be available to those couples that voluntarily desire them. There is little to get by ridding ourselves of covenant marriage , and in at least one case, that of the Samuels of Louisiana, the provisions of the law helped to preserve their marriage .
This paper did not start out to be an indictment of either no-fault divorce or any specific school of conception on marriages or divorce law reform. As is probably evident by now, I am a proponent of covenant marriages . I also remain a proponent of other reforms that will bring further justice to marriage and the family. I am certainly involved in seeing that marriages are strengthened and that children are protected. I think that covenant marriage is a kindly tool to strengthen marriage . It is likely that those couples who choose covenant marriage , especially as a conversion or “upgrade,” are looking for any and all tools that will help them to preserve and strengthen their marriage relationship. I wish them all the best.
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