The American Covenant Marriage in the Conflict of Laws

AuthorPeter Hay
PositionL.Q.C. Lamar Professor of Law, Emory University School of Law
Pages43-70

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L.Q.C. Lamar Professor of Law, Emory University School of Law; Honorarprofessor, University of Freiburg (Germany); Universitätsprofessor (ret.), Dresden University (Germany); Alumni Distinguished Professor Emeritus, University of Illinois. Another version of this article will appear in John Witte, Jr. et al., Covenant Marriage in Comparative Perspective (forthcoming 2004 Wm. B. Eardmans Publishing Co.).

I The Problem Defined: The Extra-State Effects Of Covenant-Marriage Standards

The "covenant marriage," enacted in Louisiana, Arizona and Arkansas,1 and introduced in 26 other state legislatures,2 is a reaction to the evolution of American family law, especially divorce law, over the past quarter century. This paper explores the extent to which limitations inherent in a covenant marriage are likely to be given effect in non-covenant states and internationally. While beyond the immediate scope of the paper, some of the issues raised also hold implications for other current trends in family law, particularly registered partnerships and same-sex marriages.

In the United States, family law, including divorce law, is state law. Federal law governs the recognition of judgments generally3and, as a result of more recent legislation, questions of jurisdiction and recognition of judgments pertaining to child custody4 and support.5 Federal statutory6 and treaty law7 also govern the civil and Page 44 criminal8 consequences of child abduction by the non-custodial parent or other party. But substantive family law is state law.9 This includes marriage: the prerequisites for contracting it (age, degrees of sanguinity, need for formality),10 the conditions for its dissolution (grounds for divorce, waiting periods), and post-marital duties (support for children and the ex-spouse) and rights (custody) of the parties.

Different societies and different ages have varied greatly in their approaches to marriage11 and its dissolution. In Western culture, Page 45 classical Roman law took a very permissive view of dissolution of marriage.12 Modern Islamic religious law also readily accommodates dissolution.13 When civil law became codified in 19th century Europe, family law established strict preconditions for divorce.14

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These have now given way to some form of divorce without fault (for instance, because of the breakdown of the marriage) in all European countries.15

Until the 1970's,16 American divorce law was predominantly fault-oriented;17 when it was not, long waiting periods guarded against a state's becoming a divorce haven.18 Since then, state law has turned from fault-based divorce to no-fault divorce.19 However, waiting periods differ widely.20 In addition, some states recognize virtually instant consensual foreign-country divorces, while others do not.21 Nevertheless, in the United States a divorce granted by a court of a sister-state with sufficient jurisdiction,22 or judicially recognized by such a state,23 is entitled to recognition in all other states, including in the original state of celebration. If expense is no consideration, the parties-;or even only one of them, seeking an ex parte divorce-;therefore, can obtain a valid divorce in the state with the "easiest" requirements.

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States may wish to resist the trend toward easy divorce. They can do so by retaining more traditional, stricter standards applicable to all, or they can give those wishing to marry the alternative to opt out of easy dissolution and to bind themselves even more fundamentally -;to do more than to enter into the status of marriage, but to covenantto keep it that way except for well-defined reasons and in observance of particular procedures.24

"Covenant" has both religious and secular law connotations. It expresses commitment, devotion, perhaps acknowledgment of divine command, but it is also reminiscent of contract-;the undertaking to do or not to do something. The dichotomy between the religious and the civil aspects of marriage has been more apparent in Continental law than in the United States. In Europe, marriage generally requires a civil ceremony; a religious one is optional,25 and each has its own prerequisites (e.g., the publication of banns).26 In the United States, the civil and religious aspects merge when the marriage ceremony is performed by religious authority.27 "Marriage" is easy and so is divorce in a no-fault state.28 Hence the option, offered by the Page 48 Louisiana legislation, to enter into something intended to be more lasting, more secure, less vulnerable: the covenant marriage.29Louisiana's version includes the following features that distinguish such a marriage from the traditional form: (1) mandatory premarital counseling to impress the seriousness of marriage upon the couple;30(2) the signing of a "Declaration of Intent" by which the couple promises to take all reasonable efforts to preserve the marriage and stipulates for the application of Louisiana law;31 and (3) specified fault-based grounds for divorce as well as no-fault divorce, the latter conditioned, however, on a longer period of separation (2 years). With respect to dissolution-;although not with respect to formation -;a covenant marriage is remarkably similar to contemporary substantive European divorce law. They are both a combination of fault grounds and a no-fault possibility, with no-fault divorce made more difficult.32

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When parties have contracted a covenant marriage in a covenant- marriage state and one of them later seeks its dissolution there, he or she will be held to the standards applicable to such marriages. But, what if one of them changes his or her domicile (which is one of the traditional bases for divorce jurisdiction) to a traditional, non- covenant state (Forum State No. 2, = F-2) and there seeks a divorce: will the new state of domicile recognize the first state's (Forum State No. 1, = F-1) conditions for dissolution? Put differently: can covenant marriage legislation effectively assure observance of its stricter standards nationwide? What if, secondly, the parties, or one of them, are foreign nationals and one of them seeks a divorce abroad: will the result depend on whether the petitioner is a national of F-2 (here: the foreign country where the divorce is sought) or of the American covenant state, on the nationality of the respondent, and/or on the present or previous domicile of one or both of the parties?

II U.S. Interstate Recognition Of Covenant-Marriage Standards Upon Divorce
A A Second State's Divorce Jurisdiction

The stricter standards of the covenant-marriage state are at issue when divorce is sought in a non-covenant state. The second state's court (F-2) must have jurisdiction-;personal and subject matter jurisdiction-;in order to entertain the action. If it does, what law does it apply? Subsection (B) of this paper addresses the second question: as will be seen, in American law, jurisdiction and applicable law merge.

In the first Williams decision, the U.S. Supreme Court held that the petitioner's domicile was a sufficient basis for the assertion of Page 50 divorce jurisdiction.33 It did not hold that domicile was required or the only basis; that question was not before it.34 For a divorce with both parties before the court, whether by appearance or as a result of the court's personal jurisdiction over the respondent, the jurisdictional issue becomes res judicata for purposes of a collateral proceeding.35 Domicile as a basis for divorce jurisdiction is, therefore, relevant only when petitioner sought the divorce ex parteand it was granted upon respondent's default. In these circumstances, another forum (F-1 or yet another state, F-3) may question F-2's jurisdiction for lack of petitioner's domicile there.36

The F-2 court must also have subject matter jurisdiction: it must have power to grant a divorce, to dissolve a marriage. It is upon this ground that a Connecticut court declined to entertain a petition for the dissolution of a Vermont civil union.37 Vermont, in response to a Vermont Supreme Court decision holding Vermont's marriage laws unconstitutional when they denied marriage to same-sex couples, had chosen to establish the legal form of a civil union for such couples.38By not extending its marriage laws to same-sex couples, the Connecticut court reasoned, Vermont obviously treated a civil union as something other than marriage.39 Connecticut, however, only Page 51 conferred power upon its courts to dissolve marriages, not other types of unions, unknown to Connecticut law. The court lacked subject matter jurisdiction.

It is most unlikely that this reasoning would extend to covenant marriages. They are intended as marriages, between heterosexuals, by the state of their creation. Apart from the almost universal choice-of-law rule that a marriage valid where celebrated will be recognized as valid elsewhere,40 an attempt to differentiate between...

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