Covenant Marriage and Pre-nuptial Agreements

A few years ago the idea of covenant marriage was all the rage, but some people are finding out the idea might not have been the panacea they hoped for.

In a covenant marriage there are strict, legally enforceable limits on the circumstances under which either partner can obtain a divorce. Convenant marriages are currently available only in a handful of states.

In Louisiana, for example, a covenant marriage can be dissolved only if a spouse is convicted of a felony or sentenced to prison or death; if a spouse is physically or sexually abusive; or if a spouse is habitually intemperate. That’s it. Couples wanting to get married under the covenant law are required to undergo pre-marriage counseling and go through a long counseling session before divorce even if one of the above conditions applies.

The idea was that making it more difficult for couples to divorce each other would ensure that people would be more likely to work hard to preserve a faltering marriage. An alternative view might be that a marriage so troubled that it requires such strong legal intervention might not be the most desirable marriage to begin with.

So far, though, no covenant marriage in Louisiana has ended in divorce, although there are some pending.

A University of Virginia study of 700 couples entering into covenant marriages found that for the most part it is the woman who tends to be the dominant partner, while in traditional marriages the man is the dominant partner. This fits nicely with speculation by those who pushed covenant marriage that women would use it to gain the protections that marriage had traditionally afforded prior to the rise of no fault divorce.

The biggest problem with covenant marriage, however, is that it only offers one option. Either couples enter a standard no fault marriage, or they enter an extremely Draconian covenant marriage. A better solution would be to allow couples to craft whatever agreement they want prior to marriage and give that the force of law.

Thanks to the Michael Douglas/Catherine Zeta-Jones marriage, pre-nuptial agreements are back in the news. The rumored pre-nuptial agreement between Douglas and Zeta-Jones is an excellent example of using contract law to solve difficult problems.

Douglas, who is much wealthier than his new wife, didn’t want to lose a good deal of his wealth in a divorce settlement if their marriage turned out to be a short one. Zeta-Jones, on the other hand, was apparently concerned about Douglas’ notorious womanizing and concerned about their daughter. According to rumors, the solution the couple arrived at was a clause in the pre-nuptial agreement giving her a small one time payment (well, small by Hollywood standards) in the event of a divorce. If, however, Zeta-Jones can prove that Douglas cheated, then the whole of his assets are exposed to a traditional divorce settlement.

Whereas the options of a standard or covenant marriage wouldn’t have satisfied either party’s concern, by explicitly contracting the terms of their marriage complete with penalties for early withdrawal, they’ve crafted a mutually agreeable way of addressing their respective concerns.

Unfortunately pre-nuptial agreements still tend to exist in a quasi-legal area in the United States, where it’s not always certain that such an agreement will be upheld by a court.

Australia recently amended its laws to explicitly give pre-nuptial agreements the force of law provided that some minimal requirements are met. Specifically, each party must obtain independent legal advice on the agreement before signing. As long as they meet the requirements, if the couple gets divorced they bypass traditional Family Court and instead the property settlement agreed to in the pre-nuptial agreement is enforced.

The United States would do well to follow suit and make it clear that pre-nuptial agreements can be enforced in this country provided they meet some minimal standards.

Sources:

No-cheating clauses in pre-nuptials. Bruce Butler, The Sunday Times (Australia), December 31, 2000.

‘God hates divorce’. Siobhan Roberts, National post, December 30, 2000.

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