BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
SB 1228 S
Senator Morrow B
As Amended April 6, 2006
Hearing Date: April 25, 2006 1
Family Code 2
BCP:cjt 2
8
SUBJECT
Covenant Marriage
DESCRIPTION
This bill would create a new type of marriage that would
require both premarital and pre-dissolution counseling, and
allow unequal distribution of community property in cases
of spousal abuse, commission of a felony, adultery,
abandonment, or long periods of physical separation.
BACKGROUND
In 1970, California was the first state in the nation to
remove consideration of marital fault as grounds for
divorce. "No fault" divorce allows parties to dissolve
their marriage based upon "[i]rreconcilable differences,
which have caused the irremediable breakdown of the
marriage." [Fam. Code Section 2310.] Following
California's lead, every state in the nation subsequently
adopted some form of no-fault divorce.
In a return to "fault" divorce, this bill would enact the
Voluntary Covenant Marriage and Child Protection Act of
2006. Covenant marriages would limit the use of
"irreconcilable differences" absent counseling or proof of
fault. Three states, Arkansas, Arizona, and Louisiana,
have enacted covenant marriage statutes, and similar
legislation has been introduced in over 20 states.
Covenant marriage statutes generally require both
pre-marital and pre-dissolution counseling prior to
(more)
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granting a divorce for irreconcilable differences. In
cases of abuse, commission of a felony, adultery,
abandonment, or long periods of physical separation, the
pre-dissolution counseling requirement can be waived. As in
fault divorces, this bill would allow the court to
unequally distribute the community estate in favor of the
"innocent spouse."
CHANGES TO EXISTING LAW
1. Existing law outlines two types of marriages, public
marriages and confidential marriages. Both types have
similar requirements, confidential marriages merely
prevent public disclosure of the marriage license and
certificates absent a court order. [Fam. Code Sections
300 et. seq., 500 et. seq].
Existing law requires minors under age 18 to receive a
court order granting permission to marry. Those minors
must participate in premarital counseling sessions. No
counseling is required for unmarried individuals of age
18 or older. [Fam. Code Section 301-04].
Existing law allows parties to create premarital
agreements imposing conditions upon the marriage as long
as the conditions do not violate public policy. [Fam Code
Section 1612].
This bill would create a new category of marriage,
covenant marriage. Prior to entering into a covenant
marriage, couples must attend a nine session premarital
education counseling course within a twelve-week period.
This bill would require all premarital education
counseling providers to register with the county.
2. Existing law states that a dissolution of marriage or
legal separation may be based upon either irreconcilable
differences, or incurable insanity. [Fam. Code Section
2310].
Existing law defines irreconcilable differences as "those
grounds which are determined by the court to be
substantial reasons for not continuing the marriage and
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which make it appear that the marriage should be
dissolved." [Fam. Code Section 2311].
This bill would require couples in a covenant marriage to
attend either six or nine pre-dissolution counseling
sessions prior to granting dissolution for irreconcilable
differences. Nine sessions are required by those with
minor children, six sessions are required for those
without minor children. The counseling requirement would
be waived in cases of spousal abuse, commission of a
felony, adultery, abandonment by the other spouse or long
periods of physical separation from the other spouse.
This bill would require that at least one of the first
five pre-dissolution counseling sessions, where there are
minor children, address the impact of dissolution on the
minor children.
3. Existing law requires the court to divide the
community estate of the parties equally in a proceeding
for dissolution of marriage or legal separation. [Fam
Code Sections 2550, 2601]
This bill would allow a court to award an unequal
distribution of the estate in favor of the "innocent"
spouse when the other spouse commits spousal abuse, a
felony, adultery, abandonment, or is physically absent
for long periods of time.
COMMENT
1. Stated need for the bill
According to the author, this bill is needed due to
rising divorce rates and adverse impact of those divorces
upon children. The author asserts that divorced
individuals have lower incomes, increased dependence on
welfare and are twice as likely to commit suicide.
Moreover, the author contends that children of divorce
are more likely to be sexually active as teenagers, grow
up in poverty, use drugs, fail in school and end up in
jail as adults.
The author cites a recent Modesto church program as a
"successful blueprint" for reversing this trend. Modesto
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churches required marital preparation courses and as a
result decreased the divorce rate by 57% between 1986 and
2001, according to the author. The author contends that
this bill would "giv[e] couples the ability to ensure
that they are ready for marriage before they enter into
the contract . . . [and] gets at the root of our
notoriously high divorce rate." In regards to
dissolution counseling and property distribution, the
author states that "SB 1228 gives judges the discretion
to fashion divorce settlements that protect the interests
of children and the marital unit."
2. Rationale behind removal of fault divorce
Prior to California's removal of fault divorce in 1970,
parties were required to specify the reason for their
divorce. Instead of equal distribution of the community,
courts could distribute the community as was "just." The
Family Law Act, enacted in 1970, removed fault and
required equal distribution of the community. The bill
would essentially revert California marital law back to
fault divorce for those who would enter into a covenant
marriage. In defense of the reversion, the author
maintains that "[w]ith California's current no-fault
divorce laws, there's little hope of . . . problems
[relating to divorce] tapering off any time soon."
California's shift in position away from fault divorce
was based on years of careful policy discussions. A
unifying idea behind the removal of fault was that
"divorce based on fault no longer served the public
interest. [Reformers] undertook to design and implement
a divorce law that would take account of the realities of
married life, the economic needs of divorced spouses, and
the best interests of children." According to one legal
scholar, a major goal and the "most enduring achievement
[of the Family Law Act of 1969], was to free the
administration of justice in divorce cases from the
hypocrisy and perjury that had resulted from the use of
marital fault as a controlling consideration in divorce
proceedings." [Herma Hill Kay, An Appraisal of
California's No-Fault Divorce Law, 75 Calif. L. Rev. 291,
299-301.]
ARE THERE SUFFICIENT LEGISLATIVE FINDINGS, CONSIDERATIONS
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AND COURT RESOURCES TO MERIT RETURNING OUR COURTS TO
ADJUDICATING OVER HYPOCRISY AND PERJURY IN FAULT DIVORCES
IN CASES OF COVENANT MARRIAGE?
As in fault divorces, individuals filing for divorce in
covenant marriages under irreconcilable differences must
show that they either fulfill the counseling requirement
or meet one of the five groups for fault. Proving fault,
such as adultery, returns dissolution proceedings back to
their pre-1970 state. Courts become the battlegrounds
for determining the existence of adultery, abuse or
abandonment. Additionally, none of these terms are
defined in the bill, thus leaving abandonment, long
period of separation and adultery open for
interpretation.
Proponents of the bill contend that no-fault statutes
encourage dissolution and the breakdown of families. For
those families engaged in litigation over adultery by a
spouse, testimony concerning the details of that spouse's
affairs may likely cause more damage to the family unit
than a no-fault divorce.
SHOULD NOT CALIFORNIA RETAIN ITS CURRENT NO-FAULT SYSTEM
OF DIVORCE, EVEN FOR THOSE WHO WOULD VOLUNTARILY ENTER
INTO A COVENANT MARRIAGE?
3. Property division
Prior to the enactment of the Family Law Act of 1969,
community property was to be distributed as was "just" in
cases of adultery or extreme cruelty. In switching to a
"no-fault" system, the Legislature also mandated equal
community property division between the spouses. This
bill would allow a court to perform an unequal division
of the community estate in favor of the "innocent"
spouse. No guidance is provided for how a court would
unequally divide the property. Presumably, the intent of
this provision is to provide deterrence for those who
would commit abuse or adultery. The Family Law Section
of the State Bar of the State of California, in
opposition, expressed "concern[s] that by bringing fault
back into the divorce arena, parties will be encouraged
to litigate the issue of fault to gain a financial
advantage."
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For example, Husband and Wife enter into a covenant
marriage. Less than a year later, Husband and Wife file
for divorce based upon irreconcilable differences. As
required, Husband and Wife complete the necessary
pre-dissolution counseling. Husband decides to hire an
attorney and learns that he can receive more than 50
percent of the community estate if he can prove that Wife
committed adultery. Accordingly, Husband brings several
witnesses before the court in an attempt to prove
adultery through Wife's "suspicious activities." The
court finds no adultery, and awards the estate equally as
mandated under current law. The adultery litigation
further depletes the estate, and increases the animosity
between the parties.
DOES LITIGATION OF EVENTS SUCH AS ADULTERY OR ABANDONMENT
PROMOTE THE GOAL OF PRESERVING FAMILIES?
Further, the bill provides no guidance where both parties
commit adultery or spousal abuse.
4. Voluntary nature of covenant marriage
The author and supporters emphasize that under this bill,
entering into a covenant marriage is voluntary. One
supporter, Capitol Resource Institute, states that "[SB
1228] simply gives couples more options to increase the
significance of their marital vows in a day and age where
marriage is becoming increasingly meaningless."
Supporters raise a valid point: some couples entering
into marriage will no doubt want to give their vows the
most significance. Few, if any, couples enter into
marriage contemplating the thought of divorce. The
proposed new covenant marriage then becomes an added step
by which young couples can demonstrate their devotion to
their partner. These same couples then face added
burdens should they mutually decide to dissolve their
marriage in the future due to irreconcilable differences.
Although the decision to enter into a covenant marriage
may be "voluntary," it may be that one side is demanding
it as a condition of agreeing to marriage. Also, many
couples may enter into the covenant without fully
contemplating the implications, particularly the legal
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ramifications of at-fault dissolution proceedings.
ARE COUPLES FIRST ENTERING INTO MARRRIAGE SUFFICEINTLY
KNOWLEDGEABLE OF THE FULL RAMIFICATIONS WHEN CONFRONTED
WITH THE DECISION OVER WHETHER OR NOT TO ENTER INTO A
COVENANT MARRIAGE?
5. Counseling sessions
The author cites numerous social harms caused by
dissolution of marriage both on the former spouses and on
their children. Presumably, the extensive counseling
sessions mandated by this bill serve to both educate the
parties and possibly prevent the dissolution. The
counseling requirement does raise two problems with
regards to the parties: cost and leverage.
Nine premarital counseling sessions are required, and
either six or nine pre-dissolution counseling sessions
are mandated depending on the presence of children.
These sessions are to be provided by "premarital
education counseling providers," registered with the
state. The total cost of all of these sessions could
impose a serious financial burden on the couple.
For example, Husband and Wife enter into a covenant
marriage after attending the pre-requisite nine
premarital counseling sessions. Years later, after
several children, and some financial difficulty the
couple decides to dissolve their marriage. At the time
of dissolution, the total cost of the required nine
counseling sessions is more than Husband and Wife can
afford. Since neither party has committed adultery,
abuse, or one of the other factors, they are forced to
stay married. While this may be the goal of this bill,
forcing people to stay married likely won't result in a
healthy home environment for the children.
DOES A COUNSELING REQUIREMENT IMPOSE TOO HIGH A BURDEN ON
COUPLES SEEKING A DIVORCE?
The second problem, leverage, arises when one party
refuses to attend the mandatory counseling sessions. In
the above example, assuming that cost is not a factor,
Wife could refuse to attend the counseling sessions.
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Absent proof of adultery, or one of the other fault
actions, Husband cannot receive a divorce without
submitting a "completion certificate." As in the
previous example, Husband and Wife remain married through
force, thus likely creating an unhealthy home
environment.
SHOULD ONE PARTY BE ALLOWED TO PREVENT THE OTHER SPOUSE
FROM RECEIVING A DIVORCE?
6. Necessity of this legislation
The Executive Committee of the Family Law Section of the
Los Angeles County Bar Association ("Executive
Committee"), in opposition, questions whether this
legislation is actually needed. According to the
Executive Committee, existing law already allows couples
to "agree prior to marriage [through a premarital
agreement] to have . . . marital counseling before either
party files for dissolution of marriage. Since this
right is already available, there is no need to have it
codified . . ."
Furthermore, local churches can effectively institute
such a program to encourage premarital counseling for
couples. For example, the author cites the effectiveness
of Modesto churches in decreasing divorce rate after
instituting required premarital counseling.
IS NOT PREMARITAL COUNSELING BEST LEFT TO THOSE WHO WOULD
EITHER AGREE THROUGH PREMARITAL AGREEMENT OR BE SUBJECT
TO CHURCH REQUIREMENTS?
Additionally, the Executive Committee raises concerns
over the added burden that litigation from covenant
marriages will place on the already burdened court
system. As mentioned above, additional litigation likely
will arise from parties seeking to prove that the other
spouse is at fault.
7. Premarital education counseling providers
This bill would require premarital education counselors
to register with the county clerk. Counselors would file
a written affidavit containing their name, address, phone
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number, summary of qualifications, statement that they
comply with the requirements of the Voluntary Covenant
Marriage and Child Protection Act of 2006.
Premarital education counselors can be clinical social
workers, clergy members, licensed marriage and family
therapists, psychologists, official representatives of
religious institutions, and any provider approved by the
county board of supervisors.
8. Prior legislation
In 1998, SB 1377 (Mountjoy) also attempted to introduce
covenant marriage, that bill failed passage in this
committee. Last year, AB 1236 (Devore) proposed marital
contracts similar to a covenant marriage, that bill
failed passage in the Assembly Judiciary Committee.
Support: Capitol Resource Institute; California Family
Alliance; California Family Council
Opposition:Executive Committee of the Family Law Section of
the Los Angeles County Bar Association; Family
Law Section of the State Bar of California
HISTORY
Source: Author
Related Pending Legislation: None
Prior Legislation: SB 1377 (Mountjoy), failed passage in
Senate Judiciary Committee in 1998, would
have introduced covenant marriage.
SB 1479 (Morrow), vetoed by the Governor in
2002, would have discounted marriage licenses
for couples attending premarital counseling.
AB 1236 (Devore), failed passage in the
Assembly Judiciary Committee in 2005, would
have proposed marital contracts similar to
covenant marriage.
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Prior Vote: None
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