What is Covenant Marriage?
Covenant marriage is a legal structuring of the marriage contract. It stands in direct contrast with a prenuptial agreement, as it cannot be entered into before marriage. While it shares some intent with a prenuptial agreement insofar as it is a contract between two people that determines the future tenure of their marriage, as a specific type of contract it is very much unlike a prenuptial agreement.
The concept of covenant marriage originated in the U.S. and was implemented in Louisiana, Arkansas, and Arizona. The laws are based on the Christian notion that until death do you part. As a result, covenant divorce is harder to obtain than traditional divorce. There is no no-fault divorce option with covenant marriages. Further, to obtain the desired divorce, there must be proof of the following:
Ultimately, the purpose of covenant marriage is to ensure permanence of marriage. This ties into the overlap of covenant marriage and religion. In short, covenant marriage is intended to disincentivize divorce . This is accomplished by making the process more selective and rigorous, but it is also intended to make mutually renewing decisions as these are key in religious belief systems.
In the long run, the effect of covenant marriage is to reduce the overall divorce rate. Not only do covenant marriages make it harder to get a divorce, the more selective nature actually alters marriage rates upward.
For individuals who can commit to maintaining a higher standard for their marriage, covenant marriage offers a way to legally entrench the notion in law rather than rely on personal feel or faith. Because of that, it may be appealing to some couples. The problem, however, arises when the concept is misapplied. Once you enter into a covenant marriage, unless your situation conforms to the exceptions listed above, divorce is not possible. Thus, some view covenant marriage as the law becoming intrusively involved by de facto forever entertaining the possibility of a relationship.
Contract Marriage Defined
Simply, contract marriage is an agreement among two people who choose to enter a legally binding relationship. While it generally has the same fundamental structure as an ordinary marriage, the parties to a contract marriage customarily set forth and agree to specific rules for their relationship to guide future conduct.
Unlike some common law traditions, statutory provisions generally govern the formation of contract marriages. These rules vary by jurisdiction, but contract marriages typically must have the consent of both parties to the relationship, require the records of the agreements to follow certain guidelines, and require the contract marriage to be registered with the appropriate government office in the area where the marriage took place.
Contract marriage agreements usually have many of the same formalities as traditional prenuptial agreements. Agreement usually has to be in writing, and both parties must sign the agreement before an authorized official who can administer an oath to both parties. Many statutes and ordinances require a notary public to sign the contract to document that the parties were sworn to the agreement at the time of signing.
The parties are often given 30 days to decide if they want to put the agreement on hold. If they decide to enforce their agreement, the contract will still have to go through court for enforcement, just like any other legally binding contract.
Covenant vs. Contract Marriage: Distinctions
Although the terminology and core differences between covenant and contract marriages hinge on religious views and biblical references, there are practical legal implications for partners who enter a covenant marriage. In the eyes of the law, both types of marriage are generally regarded the same. If you and your future partner decide on the covenant path, however, it’s important to understand the potential legal ramifications that can come into play if a covenant marriage ends in divorce.
For the most part, the two types of union follow the same general principles: The most notable difference lies in the divorce process. Because covenant marriages require a period of counseling that takes place before a couple gets married, many states also require that partners undergo counseling if they want to get divorced. If you want to get a no-fault divorce, you must prove that you and your spouse have completed a counseling period of time that allows you both to work out your differences and determine whether you want to continue with the marriage. This may not be an issue for those who want to get a fault-based divorce, but it could affect divorcees who hoped to be granted a divorce for no specific reason.
Some states offer a specific form of annulment for covenant marriage partners. Through annulment, a court deems the marriage to be invalid, so you are relieved from any responsibility or rights towards each other. However, only your spouse can request this type of annulment.
Requirements and Process
"If you want a thing done right, do it yourself."
That timeless quote by Napoleon Bonaparte might make you think of undertaking an ambitious project that you can accomplish yourself, but a covenant marriage is designed to be exceptionally comprehensive.
What is often noted about covenant marriage, as compared to contract marriage, is how they are difficult to enter into and exit. But let’s take a look at the entrance requirements, the necessary documentation to support a covenant marriage, counseling requirements, and consent from parties involved in a covenant or contract marriage.
Typically, the waiver of contract marriage entry requirements is not legally necessary. It’s a provision buried deep in the contract or covenants that people forget about — unless someone challenges a marriage in court. This implies that the contract is the end of the conversation.
But covenant marriages are more about crosses on the front wall of the local church than about esoteric clauses buried deep in a contract.
Covenant marriage law in Arizona, Arkansas and Louisiana requires that the following procedures be completed before a covenant marriage is entered into:
Vows to observe the rights of the marriage partner, including:
Any couple who is entering into a covenant marriage must obtain a marriage certificate containing the following information:
One of the primary legal requirements of covenant marriages is that the people must obtain a special license to marry through the covenant marriage statutes. This is not an option for people who are already married. A couple that is marrying a second, third or additional time can sign papers to convert their first or subsequent marriage to a covenant marriage.
Legislators in the state of Louisiana wanted to reduce the number of divorces and the laws were state-specific to their needs. The same is true in Arizona and Arkansas.
The first requirement is that both people must attend premarital counseling with a clergyman, under terms of Louisiana law. And in the state of Louisiana, marital counseling is typically performed by a clergyman from any faith or denomination, or someone certified by the state as a family counselor. In short, the requirement is an appointment with someone fit into the category of a clergyman, priest, minister, etc. Most people still think of clergy as people who work for the church.
In Louisiana, the counseling session must cover the potential risk of domestic violence, sexual infidelity, substance abuse, and financial issues. It also must cover the method of rearing children, marriage and spousal infidelity, and attempts for reconciliation before a divorce.
In Arizona and Arkansas, the laws require a person who wants a covenant marriage to receive certificates showing they received instruction on the importance of the union as well as the religious and moral values promoted by covenant marriages.
The requirements are generally the same in all three states, but who provides the courses can vary as can the venues.
Divorce/Dissolution and Covenant vs. Contract Marriage
The legal process of dissolving a covenant marriage is different from that of dissolving a contract marriage. Although covenant marriages were very popular in the late 1990s (i.e. Arkansas, Arizona, Louisiana, and in fact we had so many clients seeking a covenant marriage that we offered a three hour seminar on the subject) there are relatively few contract marriages in Mississippi. In Mississippi the overwhelming majority of contract marriages are dissolved by "irreconcilable differences" as opposed to grounds for divorce.
When dissolving a covenant marriage the parties can either file a complaint for divorce listing the fault grounds which we discussed in the section on Covenant vs. Contract Marriage. Only certain fault grounds qualify for a covenant divorce. In Mississippi only a handful of cases have ever discussed covenant divorce so there are very few precedential opinions on the subject. A second method of getting a divorce in a covenant marriage is to file a complaint for legal separation and wait the prescribed period of separation . After the required time, if you live in Hinds County, you must then file an action for Divorce From a Covenant Marriage listing the mandatory fault grounds. You cannot get a covenant divorce on irreconcilable difference grounds. Even if you love each other again and want to dismiss the divorce action while it is pending, you have to go through the entire "we don’t love each other anymore" procedure all over again. Fortunately, there is a template for how to do all of this (if you call and set an appointment, we will gladly share it with you) because we have had a couple of dozen covenant divorces.
Dissolving a contract marriage is infinitely easier as the majority of contract divorces are obtained by filing a complaint naming the grounds of irreconcilable differences and a statement of marital assets and liabilities. The parties can also sign a settlement agreement or parenting plan dividing the property and all matters are wrapped up quickly.
Pros and Cons
While both covenant and contract marriages aim to strengthen the marital bond, the legal experts have divided opinions on their advantages and disadvantages.
Family law advisors note that a contract marriage is basically a "standard" marriage, as both types of unions are formally recognized by the state and accompanied by legal responsibilities. However, a covenant marriage does not allow no-fault divorce under Louisiana law; couples may only file for divorce under certain specific grounds such as adultery or domestic abuse. A contract marriage, on the other hand, allows for no-fault divorce, thereby permitting dissolution of the marriage without any formal grounds. This means either partner in a contract marriage can file for divorce—not so in a covenant marriage.
While some legal professionals see the covenant requirement for premarital counseling (followed by postmarital counseling for those who live together for two years) as sound (or, at the very least, an excellent idea), others see it as a big drawback, offering resistance when they try to file for divorce.
Even with counseling to work through marital discord, some couples find that divorce may be their best option. They simply change from covenant marriage to contract marriage, but since covenant marriage is more difficult to get into than contract marriage (requiring a lengthy process of counseling sessions), some feel it should be comparatively easy to exit.
Critics of covenant marriage cite numerous difficulties such as legal problems in separating once married, divorce lawyers’ being less familiar with covenant marriage, inequitable outcomes such as loss of custodianship or property, along with the mental and emotional discomfort that come with separation.
What to Know Prior to Deciding Upon a Type of Marriage
Before making the decision of whether or not to engage in a covenant marriage, there are things every couple should know and simple things to consider. Understanding what you are getting into legally and personally is crucial to making a lifetime commitment and getting married. Covenant marriages and contract marriages have different legal implications inside the U.S. Covenant marriages must be recognized by some states but not others. They are generally recognized in Arizona, Arkansas, Georgia, Louisiana and South Carolina. Legal recognition, of covenant marriages are a problems in other states. As with any marriage , it is important to have the knowledge and understanding of a well-constructed settlement agreement. You will be both legally and personally committed to your husband or wife through this legal contract. Getting married in covenant marriage is similar to contract marriage except for the additional requirements of counseling and filing intentions. If you plan to marry for life and believe strongly in certain moral values, you may want to consider becoming a covenant couple. Contract marriage and its legal ramifications have more commonalities than differences that are relevant in most states.