Kansas Covenant Marriage bill

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Session of 1998

HOUSE BILL No. 2839

By Representatives Gilmore, Cook, Dahl, Faber, Franklin, Freeborn,
Hayzlett, Hutchins, Jennison, Phill Kline, P. Long, Mason,
Mollenkamp, Morrison, Myers, Neufeld, O'Connor, Powell,
Presta, Ruff, Shallenburger, Tanner, Vickrey, Vining and Wilson

2-6
AN ACT concerning marriage; relating to a covenant
marriage; amending K.S.A. 23-105, 23-109 and 60-1601 and K.S.A. 1997 Supp.
23-106 and repealing the existing sections.
Be it enacted by the Legislature of the State of Kansas:
New Section 1. (a) A covenant marriage is a marriage
entered into by one male and one female who understand and agree that the
marriage between them is a lifelong relationship. Parties to a covenant
marriage have received counseling emphasizing the nature and purposes of
marriage and the responsibilities thereto. Only when there has
been a complete and total breach of the marital covenant commitment may
the nonbreaching party seek a declaration that the marriage is no
longer legally recognized.

(b) A man and woman may contract a covenant marriage by
declaring their intent to do so on their application for a marriage
license as provided in K.S.A. 23-106, and amendments thereto, and executing a
declaration of intent to contract a covenant marriage, as provided in
subsection (c). The application for a marriage license and the declaration of
intent shall be filed with the district court which issues the marriage
license.

(c) A declaration of intent to contract a covenant marriage
shall contain all of the following:

(1) A recitation by the parties to the following effect:
``A COVENANT MARRIAGE We do solemnly declare that marriage is a covenant between a man and a woman who agree to live together as husband and wife for so long as they both may live. We have chosen each other carefully and disclosed to one another everything which could adversely affect the decision to enter into this marriage. We have received premarital counseling on the nature, purposes and responsibilities of marriage. We have read the covenant marriage act, and we understand that a covenant marriage is for life. If we experience marital difficulties, we commit ourselves to take all reasonable efforts to preserve our marriage, including marital counseling. With full knowledge of what this commitment means, we do hereby declare that our marriage will be bound by Kansas law on covenant marriages and we promise to love, honor and care for one another as husband and wife for the rest of our lives.''

(2) (A) An affidavit by the parties that they have
received premarital counseling from a priest, minister, rabbi, clergy person or
organized ministry of any religious denomination or sect, including a
Christian Science practitioner, or a licensed marriage and family therapist,
which counseling shall include a discussion of the seriousness of covenant
marriage, communication of the fact that a covenant marriage is a
commitment for life, a discussion of the obligation to seek marital counseling in
times of marital difficulties, and a discussion of the exclusive grounds for
legally terminating a covenant marriage by divorce or by divorce after
separate maintenance.

(B) A notarized attestation, signed by the counselor and
attached to or included in the parties' affidavit, confirming that the
parties were counseled as to the nature and purpose of the marriage and the
grounds for termination thereof and an acknowledging that the counselor
provided to the parties the informational pamphlet developed and
promulgated by the office of the attorney general, pursuant to section 4, and
amendments thereto, which pamphlet entitled the covenant marriage act
provides a full explanation of the terms and conditions of a covenant
marriage.

(3) (A) The signature of both parties witnessed by a
notary.

(B) If one or both of the parties are minors, the written
consent or authorization of those persons required by law to consent to or
authorize the marriage of minors.

(d) The declaration shall contain two separate documents,
the recitation and the affidavit, the latter of which shall include the
attestation either included therein or attached thereto. The recitation
shall be prepared in duplicate originals, one of which shall be retained by
the parties and the other, together with the affidavit and attestation,
shall be registered and recorded as provided in article 1 of chapter 23 of
the Kansas Statutes Annotated, and amendments thereto.

(e) In addition to any fee for a marriage license, the supreme court shall establish by rule a covenant marriage fee not to exceed $25.

New Sec. 2. A covenant marriage shall be governed by all of
the provisions of article 1 of chapter 23 of the Kansas Statutes
Annotated and article 16 of chapter 60 of the Kansas Statutes Annotated, and
amendments thereto.

(b) As used in this act, ``counselor'' includes but is not
limited to a priest, minister, rabbi, clergy person or organized ministry of
any religious denomination or sect, including Christian Science practitioner,
or a licensed marriage and family therapist.

New Sec. 3. (a) On or after July 1, 1998, married couples may execute a declaration of intent to designate their marriage as a covenant marriage to be governed by the laws relative thereto.

(b) This declaration of intent in the form and containing
the contents required by subsection (c) shall be presented to the district
court who issued the couple's marriage license and the secretary of
health and environment with whom the couple's marriage license is filed. If
the couple were married outside of this state, a copy of the foreign
marriage certificate, with the declaration of intent attached thereto, shall
be filed with the district court who issues marriage licenses in the county
in which the couple is domiciled. The court shall make a notation on the
marriage certificate of the declaration of intent of a covenant marriage
and attach a copy of the declaration to the certificate.

(2) On or before the fifteenth day of each calendar month,
the court shall forward to the secretary of health and environment each
declaration of intent of a covenant marriage filed with the court during
the preceding calendar month pursuant to this section.

(c) (1) A declaration of intent to designate a marriage as
a covenant marriage shall contain all of the following:

(A) A recitation by the parties to the following effect:

``A COVENANT MARRIAGE
We do solemnly declare that marriage is a covenant between
a man and a woman who agree to live together as husband and wife for so long as they
both may live. We understand the nature, purpose and responsibilities of marriage. We have
read the covenant marriage act, and we understand that a covenant marriage is for life. If
we experience marital difficulties, we commit ourselves to take all reasonable efforts to
preserve our marriage, including marital counseling. With full knowledge of what this commitment means, we do hereby declare that our marriage will be bound by Kansas law on covenant marriage, and we renew our promise to love, honor and care for one another as husband and wife for the rest of our lives.''

(B) (i) An affidavit by the parties that they have
discussed their intent to designate their marriage as a covenant marriage with a
priest, minister, rabbi, clergy person or organized ministry of any religious
denomination or sect, including a Christian Science practitioner, or a
licensed marriage and family therapist, which included a discussion of the
obligation to seek marital counseling in times of marital difficulties and the
exclusive grounds for legally terminating a covenant marriage by divorce
or by divorce after separate maintenance.

(ii) A notarized attestation, signed by the counselor and
attached to the parties' affidavit, acknowledging that the counselor
provided to the parties the information pamphlet developed and promulgated by
the office of the attorney general, pursuant to section 4, and
amendments thereto, which pamphlet entitled the covenant marriage act
provides a full explanation of the terms and conditions of a covenant
marriage.

(iii) The signature of both parties witnessed by a notary.

(2) The declaration shall contain two separate documents,
the recitation and the affidavit, the latter of which shall include
the attestation either included therein or attached thereto. The recitation
shall be prepared in duplicate originals, one of which shall be retained
by the parties and the other, together with the affidavit and attestation,
shall be filed as provided in subsection (b).

(d) The court shall collect a declaration of intent of a
covenant marriage fee as established by the supreme court by rule in an
amount not to exceed $50.

New Sec. 4. On or before July 1, 1998, the office of the
attorney general shall develop and promulgate an informational pamphlet
entitled ``covenant marriage act''. Such pamphlet shall outline in
sufficient detail the consequences of entering into a covenant marriage. Such
pamphlet shall be made available to any counselor who provides marriage
counseling as provided for by this act.

Sec. 5. K.S.A. 23-105 is hereby amended to read as follows:
23-105. All marriages, including covenant marriages, occurring within
the state shall be registered under the supervision of the secretary of
health and environment as provided in K.S.A. 65-102, and amendments
thereto.

Sec. 6. K.S.A. 1997 Supp. 23-106 is hereby amended to read
as follows: 23-106. (a) The clerks of the district courts or judges
thereof, when applied to for a marriage license by any person who is one of
the parties to the proposed marriage and who is legally entitled to a
marriage license, shall issue a marriage license in substance as follows:

MARRIAGE LICENSE
(Name of place where office located, month,
day and year.) TO ANY PERSON authorized by law to perform the marriage
ceremony, Greeting: You are hereby authorized to join in marriage A B of
______, date of birth ________, and C D of ________, date of birth ________, (and name of parent or guardian consenting), and of this license, duly endorsed, you will make
due return to this office immediately after performing the ceremony.
E F, (title of person issuing the license).

(b) If such parties intend the marriage to be a covenant marriage, a declaration of intent to contract a covenant marriage, as established in section 1, and amendments thereto, shall be attached to the marriage license and the license shall also include the following: ``We, (name of intended wife) and (name of intended husband), do hereby declare our intent to contract a covenant marriage and, accordingly, have executed a declaration of intent attached hereto.''

(c) No clerk or judge of the district court shall issue a
marriage license before the third calendar day (Sunday and holidays
included) following the date of the filing of the application therefor in
such clerk's or judge's office except that in cases of emergency or
extraordinary circumstances, a judge of the district court may upon proper showing
being made, permit by order of the court the issuance of such
marriage license without waiting three days. Each district court shall keep a
record of all marriages resulting from licenses issued by the court, which
record shall show the names of the persons who were married and the date of
the marriage. No clerk or judge shall issue a license authorizing
the marriage of any person under the age of 18 years without the express
consent of such person's father, mother or legal guardian and the consent
of the judge unless consent of both the mother and father and any
legal guardian or all then living parents and any legal guardian is given in
which case the consent of the judge shall not be required. If not given in
person at the time of the application, the consent shall be evidenced by a
written certificate subscribed thereto and duly attested. Where the
applicants or either of them are under 18 years of age and their parents are
dead and there is no legal guardian then a judge of the district court
may after due investigation give consent and issue the license authorizing
the marriage. The judge or clerk may issue a license upon the affidavit of
the party personally appearing and applying therefor, to the effect that
the parties to whom such license is to be issued are of lawful age, as
required by this section, and the judge or clerk is hereby authorized to
administer oaths for that purpose.

(d) Every person swearing falsely in such affidavit shall
be guilty of a misdemeanor and shall be punished by a fine not exceeding $500.
A clerk or judge of the district court shall state in every license the
birth dates of the parties applying for the same, and if either or both are
minors, the name of the father, mother, or guardian consenting to such
marriage.

(e) Every marriage license shall expire at the end of six
months from the date of issuance if the marriage for which the license was
issued does not take place within the six-month period of time.

Sec. 7. K.S.A. 23-109 is hereby amended to read as follows:
23-109.

(a) Every person who performs a marriage ceremony under the
provisions of this act shall endorse the person's certificate of the
marriage on the license, give the duplicate copy of the license to the parties
to the marriage and return the license, along with a copy of the
declaration of intent to contract a covenant marriage if applicable, within 10 days
after the marriage, to the judge or clerk of the district court who
issued it. The judge or clerk shall record the marriage on the marriage record
in the office of the judge or clerk and shall forward, not later than
the third day of the following month, to the secretary of health and
environment the license and certificate of marriage, along with a copy of the
declaration of intent to contract a covenant marriage if applicable,
together with a statement of the names of the parties and the name and address
of the person who performed the marriage ceremony.

(b) If no marriage license has been issued by the judge or
clerk of the district court during a month, the judge or clerk shall
promptly notify the secretary of health and environment to that effect on a
form provided for that purpose.

Sec. 8. K.S.A. 60-1601 is hereby amended to read as
follows: 601601.
(a) (1) Except in the case of a covenant marriage, the
district court shall grant a decree of divorce or separate maintenance for
any of the following grounds:   (1) (A) Incompatibility;   (2) (B) failure
to perform a material marital duty or obligation; or   (3) (C)
incompatibility by reason of mental illness or mental incapacity of one or both spouses.

  (b) (2) The ground of incompatibility by reason of mental
illness or mental incapacity of one or both spouses shall require a
finding of either:   (1) (A) Confinement of the spouse in an institution by reason
of mental illness for a period of two years, which confinement need not
be continuous; or   (2) (B) an adjudication of mental illness or mental
incapacity of the spouse by a court of competent jurisdiction while the
spouse is confined in an institution by reason of mental illness. In either
case, there must be a finding by at least two of three physicians,
appointed by the court before which the action is pending, that the mentally ill
or mentally incapacitated spouse has a poor prognosis for recovery from the
mental illness or mental incapacity, based upon general knowledge
available at the time. A decree granted on the ground of incompatibility by
reason of mental illness or mental incapacity of one or both spouses
shall not relieve a party from contributing to the support and maintenance of the
mentally ill or mentally incapacitated spouse. If both spouses are
confined to institutions because of mental illness or mental incapacity, the
guardian of either spouse may file a petition for divorce and the court may
grant the divorce on the ground of incompatibility by reason of mental
illness or mental incapacity.

(b) Notwithstanding any other law to the contrary and
subsequent to the parties obtaining counseling, the district court shall
grant a decree of divorce to a spouse of a covenant marriage only upon proof of
any of the following grounds:

(1) The other spouse has committed adultery.

(2) The other spouse has been convicted of capital murder
K.S.A. 21-3439 and amendments thereto, murder in the first degree
K.S.A. 213401 and amendments thereto, murder in the second degree K.S.A.
213402 and amendments thereto, voluntary manslaughter K.S.A.
21-3403 and amendments thereto, involuntary manslaughter K.S.A. 21-3404
or 21-3442 and amendments thereto, rape K.S.A. 21-3502 and
amendments thereto, indecent liberties with a child K.S.A. 21-3503, and
amendments thereto, aggravated indecent liberties with a child K.S.A.
21-3504, and amendments thereto, criminal sodomy subsection (a)(2) and
(a)(3) of K.S.A. 21-3505 and amendments thereto, aggravated criminal
sodomy K.S.A. 21-3506, and amendments thereto, indecent solicitation
of a child K.S.A. 21-3510, and amendments thereto, aggravated indecent
solicitation of a child K.S.A. 21-3511, and amendments thereto, sexual
exploitation of a child K.S.A. 21-3516, and amendments thereto, aggravated
sexual battery K.S.A. 21-3518, and amendments thereto or any conviction
for a felony offense that is comparable to a crime listed above, or
any federal or other state conviction for a felony offense that under the
laws of this state would be an offense as listed above.

(3) The other spouse has abandoned the matrimonial domicile
for a period of one year and constantly refuses to return.

(4) The other spouse has physically or sexually abused the
spouse seeking the divorce or a child of one of the spouses.

(5) The spouses have been living separate and apart
continuously without reconciliation for a period of two years.

(6) (A) The spouses have been living separate and apart
continuously without reconciliation for a period of one year from the date
the judgment of separate maintenance was signed.

(B) If there is a minor child or children of the marriage,
the spouses have been living separate and apart continuously without
reconciliation for a period of one year and six months from the date the
judgment of separate maintenance was signed. However, if abuse of a child
of the marriage or a child of one of the spouses is the basis for
which the judgment of separate maintenance was obtained, then a judgment of
divorce may be obtained if the spouses have been living separate and
apart continuously without reconciliation for a period of one year from
the date the judgment of separate maintenance was signed.

(C) Notwithstanding any other law to the contrary and
subsequent to the parties obtaining counseling, the district court shall
grant a decree of separate maintenance to a spouse of a covenant marriage upon
proof of any of the following grounds:

(1) The other spouse has committed adultery.

(2) The other spouse has been convicted of capital murder
K.S.A. 21-3439 and amendments thereto, murder in the first degree
K.S.A. 213401 and amendments thereto, murder in the second degree K.S.A.
213402 and amendments thereto, voluntary manslaughter K.S.A.
21-3403 and amendments thereto, involuntary manslaughter K.S.A. 21-3404
or 21-3442 and amendments thereto, rape K.S.A. 21-3502 and
amendments thereto, indecent liberties with a child K.S.A. 21-3503, and
amendments thereto, aggravated indecent liberties with a child K.S.A.
21-3504, and amendments thereto, criminal sodomy subsection (a)(2) and
(a)(3) of HB 2839 8 K.S.A. 21-3505 and amendments thereto, aggravated criminal sodomy
K.S.A. 21-3506, and amendments thereto, indecent solicitation of a child
K.S.A. 21-3510, and amendments thereto, aggravated indecent solicitation
of a child K.S.A. 21-3511, and amendments thereto, sexual exploitation of
a child K.S.A. 21-3516, and amendments thereto, aggravated sexual bat-
tery K.S.A. 21-3518, and amendments thereto or any conviction for a
felony offense that is comparable to a crime listed above, or any federal
or other state conviction for a felony offense that under the
laws of this state would be an offense as listed above.

(3) The other spouse has abandoned the matrimonial domicile
for a period of one year and constantly refuses to return.

(4) The other spouse has physically or sexually abused the
spouse seeking the divorce or a child of one of the spouses.

(5) The spouses have been living separate and apart
continuously without reconciliation for a period of two years.

(6) On account of habitual intemperance of the other
spouse, or excesses, cruel treatment, or outrages of the other spouse, if
habitual intemperance, or such ill-treatment is of such a nature as to render
their living together insupportable.

Sec. 9. K.S.A. 23-105, 23-109 and 60-1601 and K.S.A. 1997
Supp. 23-106 are hereby repealed.

Sec. 10. This act shall take effect and be in force from and after its publication in the statute book.
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