Legal Eagle - Covenant Marriage In Louisiana

By Katie Penny
Times Columnist

The provided information is fact-sensitive and jurisdiction-dependent. Consult an attorney before employing the below legal concepts.

There are only 2 kinds of marriage that can be entered into in Louisiana: covenant marriages or non-covenant marriages. The creation of the covenant marriage in Louisiana was quite controversial, but it is not really used very often, because entering into a covenant marriage, rather than an ordinary marriage, is completely optional. Once entered into, however, the fairly stringent requirements for entering and exiting the marriage are treated as contractual, and are, and tend to frighten off even some supporters of the Covenant Marriage Act (located in Louisiana Revised Statutes 9:272-276, established in 1997).
Of course, marriage itself is pretty serious, so even a regular marriage should not be entered into lightly—one would hope. A covenant marriage can be thought of as extreme-marriage, or marriage+, as the difference lies mainly in the more onerous requirements for the marriage to be formed and/or terminated.
A regular marriage has only 3 basic requirements: 1) There must be a marriage ceremony, performed by some authorized third party, attended by both husband and wife in person. That means that “common law marriages,” which some other states recognize when the parties have lived together as man and wife for a certain amount of time, but never had a wedding ceremony, are not valid marriages in Louisiana. 2) Both parties must verbally express their mutual, freely given consent. A minor must have permission of custodians or even have court authorization. 3) There must be no legal impediment to the marriage. In Louisiana, there are 3 of these legal impediments: 1) bigamy 2) same-sex 3) blood relation to a certain degree.
Marriage is not permitted between certain blood relatives (including adoptive relatives, with the caveat of legal permission in some cases), such as direct ascendants or descendants, and siblings, cousins, or uncles/aunts. Also, if the relationship is simply through marriage, and not blood, a marriage will be permitted.
To enter into a covenant marriage, all of the above requirements still exist. However, a covenant marriage has various extra requirements. The parties must also receive at least one session of premarital counseling—and obtain an affidavit from that counselor attesting that they were so counseled—and receive and read a pamphlet on covenant marriage prepared by the attorney general. The parties must declare their intent to enter into a covenant marriage on their marriage license application. They must also execute a “declaration of intent to contract a covenant marriage.”
The declaration includes a statement by the parties that they understand that they are “a man and a woman who agree to live together as husband and wife as long as they both may live.” (La. R.S. 9:273(A)(1). They have an affirmative duty to tell each other of anything that could negatively affect the other person’s decision to enter into marriage. The affidavit from the counselor must be included with the declaration of intent, and one copy of the declaration affidavit should be retained by the parties and the other copy should be filed with the official who issues the marriage license.
At that point, a covenant marriage is just like any other marriage, with the same obligations and duties of the parties. It also creates community property between the parties just like a regular marriage.
The next big difference arises if the parties decide they don’t like each other as much as they thought they did and want to either separate or divorce. In Louisiana, there are 3 basic grounds for divorce in a non-covenant marriage: when the parties live separate and apart for either 6 months—when there are no minor children—or 12 months—when there are minor children—when a party has committed adultery, or when one of the spouses has committed a felony and been sentenced to death or imprisonment with hard labor. These basic divorce requirements are fairly minimal, and the “living separate and apart” is the result of the institution of no-fault divorce in Louisiana. In some ways, a covenant marriage is simply an optional reinstitution of a divorce system where the parties do have to show fault of the other party.
The grounds for divorce in a covenant marriage are located in Louisiana Revised Statutes 9:307. These requirements ultimately amount to the fact that simply living apart is not really enough to get a divorce when one has entered into a covenant marriage, whereas living apart long enough will be perfectly sufficient to obtain a regular divorce.
The marriage can be terminated only after the parties receive counseling—from the time the marital difficulties begin until the divorce judgment is signed—and only if the party can also show one of the following grounds: 1) the other spouse committed adultery 2) the other spouse committed a felony and has been sentenced to death or imprisonment with hard labor 3) the other spouse has abandoned the marriage for 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 without reconciliation for at least two years 6) the spouses have been living separate and apart from one year since a judicial separation was signed—judicial separations are not used in anything but covenant marriages anymore; in a regular marriage, just living apart for one year alone would entitle a party to a divorce.
7) if there is a minor child of the marriage, and the spouses have been living separate and apart for 18 months since the signing of the judicial separation—unless the basis for the judicial separation was abuse of a spouse or child, in which case the time period for obtaining the divorce after a judicial separation remains one year even when there is a minor child. A judicial separation can be obtained for basically the same reasons as above, except that it also may be obtained for habitual “intemperance” of the other spouse, excesses, cruel treatment, or outrages, or ill treatment that renders living together insupportable.
However, and to calm somewhat the outraged opponents of covenant marriage who think covenant marriage is unfair when there is abuse, the pre-divorce counseling requirement is done away with when the other spouse has physically or sexually abused the spouse seeking the divorce or one of the children.