2001 South Carolina SB 206 - Covenant Marriage


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2001 South Carolina Senate Bill No. 206

VERSION: Introduced
January 24, 2001
Fair

TO AMEND TITLE 20, CHAPTER 1, CODE OF LAWS OF SOUTH CAROLINA, 1976,
RELATING TO MARRIAGE BY ADDING ARTICLE 4, SO AS TO ENACT THE SOUTH CAROLINA
COVENANT MARRIAGE ACT BY AUTHORIZING COUPLES TO ENTER INTO COVENANT MARRIAGES
AND PROVIDING FOR COVENANT MARRIAGE DECLARATIONS ON MARRIAGE LICENSES,
PROVIDING PREREQUISITES TO ENTERING INTO A COVENANT MARRIAGE, INCLUDING
COUNSELING, AND AUTHORIZING A COVENANT MARRIAGE DECLARATION BY THOSE ALREADY
MARRIED; TO AMEND SECTION 20-1-220, AS AMENDED, RELATING TO THE APPLICATION,
ISSUANCE, AND FILING OF MARRIAGE LICENSES, SO AS TO APPLY THESE PROCEDURES TO
LICENSES FOR COVENANT MARRIAGES AND TO REQUIRE A THIRTY-DAY WAITING PERIOD
BEFORE ISSUANCE OF A COVENANT MARRIAGE LICENSE; TO ADD SECTION 20-1-225 SO AS
TO REQUIRE COVENANT MARRIAGE LICENSE APPLICANTS TO PRESENT CERTIFICATES
STATING THEY HAVE BEEN GIVEN A STANDARD SEROLOGIC TEST FOR SEXUALLY
TRANSMITTED DISEASES, TO REQUIRE THE CERTIFICATE TO BE FILED WITH THE PROBATE
COURT, AND TO PROVIDE PENALTIES; TO AMEND SECTION 20-1-230, AS AMENDED, AND
SECTIONS 20-1-310 AND 20-1-340, ALL RELATING TO THE APPLICATION, ISSUANCE,
AND FILING OF MARRIAGE LICENSES, SO AS TO APPLY THESE PROCEDURES TO LICENSES
FOR COVENANT MARRIAGES AND TO REQUIRE A THIRTY-DAY WAITING PERIOD BEFORE
ISSUANCE OF A COVENANT MARRIAGE LICENSE; AND TO AMEND SECTION 20-3-10
RELATING TO GROUNDS FOR DIVORCE, SO AS TO PROVIDE THAT IN A COVENANT
MARRIAGE, THE GROUND FOR DIVORCE OF CONTINUOUS SEPARATION IS FOR A PERIOD OF
AT LEAST TWO YEARS.


TEXT:
Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1. This act may be cited as the 'South Carolina Covenant Marriage
Act'.

SECTION 2. Title 20, Chapter 1 of the 1976 Code is amended by adding:

"ARTICLE 4

Covenant Marriage

Section 20-1-410. This article may be cited as the 'South Carolina
Covenant Marriage Act'.

Section 20-1-420. As used in this article, unless the context clearly
indicates otherwise:

(1) 'Counselor' means a priest, minister, rabbi, clerk of the Religious
Society of Friends, a clergyman of any religious sect, a marriage counselor,
or an attorney.

(2) 'Marital counseling' means guidance to improve the adaptation or
adjustment to a covenant marriage or to assist in resolving conflicts
experienced by a couple who has entered into a covenant marriage. Marital
counseling may be received from a counselor or from a person whose experience
or professional training may be relied upon for assistance, who agrees to
provide advice, and who is acceptable to the couple as an advisor.

(3) 'Preparatory counseling' means a plan or procedure for providing
information or advice to persons who seek to enter into a covenant marriage.

Section 20-1-430. (A) 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 Section 20-1-220, executing a declaration of intent to
contract a covenant marriage, as provided in Section 20-1-340, and filing
serological test certificates as provided for in Section 20-1-225. The
application for a marriage license, the declaration of intent, and the
serological test certificates must be filed with the probate judge or clerk
of court who issues the marriage license.

(B) A declaration of intent to contract a covenant marriage shall contain:

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

'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 preparatory counseling on the nature, purposes,
and responsibilities of marriage. 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 declare that our
marriage will be bound by South Carolina 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) An affidavit by the parties that they have received preparatory
counseling from a counselor. This counseling shall include a discussion of
the seriousness of covenant marriage, communication of the fact that a
covenant marriage is a commitment for life, and a discussion of the
obligation to seek marital counseling in times of marital difficulties. The
cost for the preparatory counseling, if any, must be paid by the parties.

(3) 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 a covenant marriage.

(4) The signature of both parties witnessed by a notary. If one or both of
the parties are minors, the written consent or authorization required
pursuant to Section 20-1-250 or 20-1-300.

(C) The declaration shall contain two separate documents, the recitation
and the affidavit. The affidavit must include the attestation either included
in the affidavit or attached to it. The recitation must be prepared in
duplicate originals, one of which must be retained by the parties and the
other, together with the affidavit and attestation, must be filed as provided
in Section 20-1-340.

Section 20-1-440. (A) After December 31, 2002, a married couple may
execute a declaration of intent to designate their marriage as a covenant
marriage to be governed by the laws relative to covenant marriages. This
declaration of intent in the form and containing the contents required by
subsection (B) must be presented to the probate judge or clerk of court who
issued the couple's marriage license and with whom the couple's marriage
certificate is filed. If the couple was married outside of this State, a copy
of the foreign marriage certificate, with the declaration of intent attached
to it, must be filed with the probate judge or clerk of court who issues
marriage licenses in the county in which the couple is domiciled. The probate
judge or clerk of court shall make a notation on the marriage certificate as
provided for in Section 20-1-230 that the parties have entered into a
covenant marriage and attach a copy of the declaration to the certificate.

(B) A declaration of intent to designate a marriage as a covenant marriage
shall contain:

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

'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. 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 declare that our
marriage will be bound by South Carolina law on covenant marriages, and we
renew our promise to love, honor, and care for one another as husband and
wife for the rest of our lives.'

(2) An affidavit by the parties that they have discussed their intent to
designate their marriage as a covenant marriage with a counselor which
included a discussion of the obligation to seek marital counseling in times
of marital difficulties. The cost for the counseling, if any, must be paid by
the parties.

(3) 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 a covenant marriage.

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

(C) The declaration shall contain two separate documents, the recitation
and the affidavit. The affidavit must include the attestation either included
in the affidavit or attached to it. The recitation must be prepared in
duplicate originals, one of which must be retained by the parties and the
other, together with the affidavit and attestation, must be filed as provided
in subsection (A).

Section 20-1-450. (A) Except as provided in subsections (C) and (D), only
subsequent to the parties' obtaining marital counseling may a spouse to a
covenant marriage petition the court for divorce. A spouse to a covenant
marriage may petition the court for separate support and maintenance prior to
obtaining counseling.

(B) Affidavits by the parties must be incorporated in or attached to a
petition seeking divorce. The affidavit of the parties must state that the
parties have made all reasonable efforts to preserve their marriage and have
participated in good faith in marital counseling. The affidavit of the
counselor or person who provided marital counseling must state that the
parties were counseled unsuccessfully in an effort to preserve their marriage
and that in those families with children, the counselor or person who
provided marital counseling discussed with the parties the effects of divorce
on children.

(C) In a covenant marriage in which one spouse refuses to attend marital
counseling, the other spouse may petition the court for an order requiring
the spouse to attend marital counseling. After an opportunity for each spouse
to be heard on the issue, the court must either grant or deny the petition
based upon a finding of the best interest of each spouse.

(D)(1) In a covenant marriage in which a protective order has been issued
pursuant to Chapter 4 against one spouse or in which one spouse has been
convicted of or pled guilty of nolo contendere to an offense in Chapter 25,
Title 16, the other spouse may petition the court for a waiver from the
marital counseling requirement. The court must grant the waiver if the court
finds the waiver is in the best interest of the petitioning spouse.

(2) A spouse to a covenant marriage may petition the court for a waiver
from the marital counseling requirement. After an opportunity for each spouse
to be heard on the issue, the court must either grant or deny the waiver
based upon a finding of the best interest of each spouse.

Section 20-1-460. Except as otherwise provided for in this article, the
laws of South Carolina pertaining to marriage, separate support and
maintenance, and divorce apply to covenant marriages."

SECTION 3. Section 20-1-220 of the 1976 Code, as amended by Section 105,
Part II of Act 100 of 1999, is further amended to read:

"Section 20-1-220. No marriage license may be issued unless a written
application has been filed with the probate judge, or in Darlington and
Georgetown counties the clerk of court who issues the license, at least
twenty-four hours before the issuance, and in a
covenant marriage, as provided for in Section 20-1-430, at least thirty days
before its issuance . The application must be signed by both of the
contracting parties and shall contain the same information as required for
the issuing of the license including the social security numbers, or the
alien identification numbers assigned to resident aliens who do not have
social security numbers, of the contracting parties , and in a covenant
marriage, the declaration of intent to contract a covenant marriage, as
provided for in Section 20-1-430, and the serologic test certificates
required by Section 20-1-225 . The license issued, in addition to other
things required, must show the hour and date of the filing of the application
and the hour and date of the issuance of the license. The application must be
kept by the probate judge or clerk of court as a permanent record in his
office. A probate judge or clerk of court issuing a license contrary to the
provisions, upon conviction, must be fined not more than one hundred dollars
or not less than twenty-five dollars, or imprisoned for not more than thirty
days or not less than ten days."

SECTION 4. The 1976 Code is amended by adding:

"Section 20-1-225. (A) Each person applying for a marriage license in a
covenant marriage as provided in Section 20-1-430 must present to the judge
of the probate court, or the clerk of court in Darlington and Georgetown
Counties, a certificate signed by a physician licensed pursuant to Chapter 47
of Title 40, or licensed in a state or United States territory to practice
medicine and surgery, which states that the applicant has been given a
standard serologic test for sexually transmitted diseases including, but not
limited to, Human Immunodeficiency Virus (HIV) infection. The certificate
must be signed by the person the applicant desires to marry and witnessed by
the physician. The test must be made within thirty days before the
application for a license.

(B) The certificate of the physician must be on a form provided and
distributed by the Department of Health and Environmental Control or by the
state health departments of other states having laws requiring a blood test
before marriage.

(C) The certificates must be filed by the judge of the probate court, or
the clerk of court in Darlington and Georgetown Counties. A judge of the
probate court or clerk of court who issues a marriage license in a covenant
marriage to a person who fails to present a certificate as required by this
section, and an applicant for a marriage license in a covenant marriage or a
physician who knowingly and wilfully makes a false statement in a certificate
are guilty of a misdemeanor triable in magistrate's court. Upon conviction,
the person must be fined not more than five hundred dollars or imprisoned not
more than thirty days."

SECTION 5. Section 20-1-230 of the 1976 Code, as amended by Act 470 of
1994, is further amended to read:

"Section 20-1-230. (A) Upon (1) the filing of
the application required under the provisions of Section 20-1-220,
(2) the lapse of at least twenty-four hours thereafter or, in
the case of a covenant marriage, the lapse of at least thirty days thereafter,
(3) the payment of the fee provided by law, and
(4) the filing of a statement, under oath or affirmation, to
the effect that the persons seeking the contract of matrimony are legally
entitled to marry, together with the full names of the persons, their ages
and places of residence, the judge of probate or clerk of court with whom the
application was filed shall issue a license for the marriage of such persons.

(B) If the applicants for a license have filed the declaration of
intent to contract a covenant marriage pursuant to Section 20-1-220, on the
face of that license and certificate, and in addition to all other
requirements for a license and certificate, shall appear a designation that
the parties entered into a covenant marriage which must be signed by the
parties to the marriage and the witness. "

SECTION 6. Section 20-1-310 of the 1976 Code is amended to read:

"Section 20-1-310. The form of license and certificate of marriage shall
be prescribed and furnished by the State Registrar and must
contain information required by the standard certificate as recommended
by the national agency in charge of vital statistics, all of which are
declared necessary for registration, identification, legal, health ,
and research purposes, with such additions as are necessary to meet
requirements imposed by the State , including those provisions relating
to covenant marriages ."

SECTION 7. Section 20-1-340 of the 1976 Code is amended to read:

"Section 20-1-340. The probate judge or clerk of court who issues marriage licenses and certificates,
including those designating a marriage as a covenant marriage pursuant to
Section 20-1-430 or Section 20-1-440 , upon the return of the two copies
by the person who performs the wedding ceremony, shall record and
index these certificates, and in the case of a
covenant marriage also shall record and index the declaration of intent to
contract a covenant marriage, in a book kept for that purpose and send
one copy of the certificate to the Division of Vital Statistics of
the Department of Health and Environmental Control within fifteen days after
the marriage license is returned to the office of the
judge or clerk of court . The judge of probate or clerk of court
shall issue a certified copy of
a license and certificate to any person and may charge the sum
of fifty cents for so doing unless otherwise prohibited by law."

SECTION 8. Section 20-3-10(5) of the 1976 Code is amended to read:

"(5) On the application of either party if and when the husband and wife
have lived separate and apart without cohabitation for
one year ; however, in a covenant marriage, the husband and wife must
have lived separate and apart without cohabitation for at least two years
. A plea of res judicata or of recrimination with respect to any other
provision of this section is not a bar to
either party obtaining a divorce on this ground."

SECTION 9. This act takes effect January 1, 2003, except for the
provisions of Section 20-1-450 of the 1976 Code, as added by Section 2 of
this act, and Section 20-3-10(5) of the 1976 Code, as amended by Section 8 of
this act, both of which take effect upon ratification of the amendment to
Section 3, Article XVII of the Constitution of this State.

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