Session of 1998
                   
HOUSE BILL No. 2839
         
By Representatives Gilmore, Cook, Dahl, Faber, Franklin, Freeborn,
                Hayzlett, Hutchins, Jennison, Phill Kline, P. Long, Mason, Mollen-
                kamp, Morrison, Myers, Neufeld, O'Connor, Powell, Presta, Ruff,
                Shallenburger, Tanner, Vickrey, Vining and Wilson
               
2-6
          12             AN ACT concerning marriage; relating to a covenant marriage; amending
13             K.S.A. 23-105, 23-109 and 60-1601 and K.S.A. 1997 Supp. 23-106 and
14             repealing the existing sections.
15            
16       Be it enacted by the Legislature of the State of Kansas:
17           New Section 1. (a) A covenant marriage is a marriage entered into
18       by one male and one female who understand and agree that the marriage
19       between them is a lifelong relationship. Parties to a covenant marriage
20       have received counseling emphasizing the nature and purposes of mar-
21       riage and the responsibilities thereto. Only when there has been a com-
22       plete and total breach of the marital covenant commitment may the non-
23       breaching party seek a declaration that the marriage is no longer legally
24       recognized.
25           (b) A man and woman may contract a covenant marriage by declaring
26       their intent to do so on their application for a marriage license as provided
27       in K.S.A. 23-106, and amendments thereto, and executing a declaration
28       of intent to contract a covenant marriage, as provided in subsection (c).
29       The application for a marriage license and the declaration of intent shall
30       be filed with the district court which issues the marriage license.
31           (c) A declaration of intent to contract a covenant marriage shall con-
32       tain all of the following:
33           (1) A recitation by the parties to the following effect:
34      
``A COVENANT MARRIAGE
35           We do solemnly declare that marriage is a covenant between a man and a woman who
36       agree to live together as husband and wife for so long as they both may live. We have chosen
37       each other carefully and disclosed to one another everything which could adversely affect
38       the decision to enter into this marriage. We have received premarital counseling on the
39       nature, purposes and responsibilities of marriage. We have read the covenant marriage act,
40       and we understand that a covenant marriage is for life. If we experience marital difficulties,
41       we commit ourselves to take all reasonable efforts to preserve our marriage, including mar-
42       ital counseling.
43           With full knowledge of what this commitment means, we do hereby declare that our

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  1       marriage will be bound by Kansas law on covenant marriages and we promise to love, honor
  2       and care for one another as husband and wife for the rest of our lives.''
  3           (2) (A) An affidavit by the parties that they have received premarital
  4       counseling from a priest, minister, rabbi, clergy person or organized min-
  5       istry of any religious denomination or sect, including a Christian Science
  6       practitioner, or a licensed marriage and family therapist, which counseling
  7       shall include a discussion of the seriousness of covenant marriage, com-
  8       munication of the fact that a covenant marriage is a commitment for life,
  9       a discussion of the obligation to seek marital counseling in times of marital
10       difficulties, and a discussion of the exclusive grounds for legally termi-
11       nating a covenant marriage by divorce or by divorce after separate main-
12       tenance.
13           (B) A notarized attestation, signed by the counselor and attached to
14       or included in the parties' affidavit, confirming that the parties were coun-
15       seled as to the nature and purpose of the marriage and the grounds for
16       termination thereof and an acknowledging that the counselor provided to
17       the parties the informational pamphlet developed and promulgated by
18       the office of the attorney general, pursuant to section 4, and amendments
19       thereto, which pamphlet entitled the covenant marriage act provides a
20       full explanation of the terms and conditions of a covenant marriage.
21           (3) (A) The signature of both parties witnessed by a notary.
22           (B) If one or both of the parties are minors, the written consent or
23       authorization of those persons required by law to consent to or authorize
24       the marriage of minors.
25           (d) The declaration shall contain two separate documents, the reci-
26       tation and the affidavit, the latter of which shall include the attestation
27       either included therein or attached thereto. The recitation shall be pre-
28       pared in duplicate originals, one of which shall be retained by the parties
29       and the other, together with the affidavit and attestation, shall be regis-
30       tered and recorded as provided in article 1 of chapter 23 of the Kansas
31       Statutes Annotated, and amendments thereto.
32           (e) In addition to any fee for a marriage license, the supreme court
33       shall establish by rule a covenant marriage fee not to exceed $25.
34           New Sec. 2. A covenant marriage shall be governed by all of the
35       provisions of article 1 of chapter 23 of the Kansas Statutes Annotated and
36       article 16 of chapter 60 of the Kansas Statutes Annotated, and amend-
37       ments thereto.
38           (b) As used in this act, ``counselor'' includes but is not limited to a
39       priest, minister, rabbi, clergy person or organized ministry of any religious
40       denomination or sect, including Christian Science practitioner, or a li-
41       censed marriage and family therapist.
42           New Sec. 3. (a) On or after July 1, 1998, married couples may exe-
43       cute a declaration of intent to designate their marriage as a covenant

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  1       marriage to be governed by the laws relative thereto.
  2           (b) This declaration of intent in the form and containing the contents
  3       required by subsection (c) shall be presented to the district court who
  4       issued the couple's marriage license and the secretary of health and en-
  5       vironment with whom the couple's marriage license is filed. If the couple
  6       were married outside of this state, a copy of the foreign marriage certif-
  7       icate, with the declaration of intent attached thereto, shall be filed with
  8       the district court who issues marriage licenses in the county in which the
  9       couple is domiciled. The court shall make a notation on the marriage
10       certificate of the declaration of intent of a covenant marriage and attach
11       a copy of the declaration to the certificate.
12           (2) On or before the fifteenth day of each calendar month, the court
13       shall forward to the secretary of health and environment each declaration
14       of intent of a covenant marriage filed with the court during the preceding
15       calendar month pursuant to this section.
16           (c) (1) A declaration of intent to designate a marriage as a covenant
17       marriage shall contain all of the following:
18           (A) A recitation by the parties to the following effect:
19      
``A COVENANT MARRIAGE
20           We do solemnly declare that marriage is a covenant between a man and a woman who
21       agree to live together as husband and wife for so long as they both may live. We understand
22       the nature, purpose and responsibilities of marriage. We have read the covenant marriage
23       act, and we understand that a covenant marriage is for life. If we experience marital diffi-
24       culties, we commit ourselves to take all reasonable efforts to preserve our marriage, includ-
25       ing marital counseling.
26           With full knowledge of what this commitment means, we do hereby declare that our
27       marriage will be bound by Kansas law on covenant marriage, and we renew our promise to
28       love, honor and care for one another as husband and wife for the rest of our lives.''
29           (B) (i) An affidavit by the parties that they have discussed their intent
30       to designate their marriage as a covenant marriage with a priest, minister,
31       rabbi, clergy person or organized ministry of any religious denomination
32       or sect, including a Christian Science practitioner, or a licensed marriage
33       and family therapist, which included a discussion of the obligation to seek
34       marital counseling in times of marital difficulties and the exclusive
35       grounds for legally terminating a covenant marriage by divorce or by
36       divorce after separate maintenance.
37           (ii) A notarized attestation, signed by the counselor and attached to
38       the parties' affidavit, acknowledging that the counselor provided to the
39       parties the information pamphlet developed and promulgated by the of-
40       fice of the attorney general, pursuant to section 4, and amendments
41       thereto, which pamphlet entitled the covenant marriage act provides a
42       full explanation of the terms and conditions of a covenant marriage.
43           (iii) The signature of both parties witnessed by a notary.

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  1           (2) The declaration shall contain two separate documents, the reci-
  2       tation and the affidavit, the latter of which shall include the attestation
  3       either included therein or attached thereto. The recitation shall be pre-
  4       pared in duplicate originals, one of which shall be retained by the parties
  5       and the other, together with the affidavit and attestation, shall be filed as
  6       provided in subsection (b).
  7           (d) The court shall collect a declaration of intent of a covenant mar-
  8       riage fee as established by the supreme court by rule in an amount not
  9       to exceed $50.
10           New Sec. 4. On or before July 1, 1998, the office of the attorney
11       general shall develop and promulgate an informational pamphlet entitled
12       ``covenant marriage act''. Such pamphlet shall outline in sufficient detail
13       the consequences of entering into a covenant marriage. Such pamphlet
14       shall be made available to any counselor who provides marriage counsel-
15       ing as provided for by this act.
16           Sec. 5. K.S.A. 23-105 is hereby amended to read as follows: 23-105.
17       All marriages, including covenant marriages, occurring within the state
18       shall be registered under the supervision of the secretary of health and
19       environment as provided in K.S.A. 65-102, and amendments thereto.
20           Sec. 6. K.S.A. 1997 Supp. 23-106 is hereby amended to read as fol-
21       lows: 23-106. (a) The clerks of the district courts or judges thereof, when
22       applied to for a marriage license by any person who is one of the parties
23       to the proposed marriage and who is legally entitled to a marriage license,
24       shall issue a marriage license in substance as follows:
25      
MARRIAGE LICENSE
26      
(Name of place where office located, month,
27      
day and year.)
28       TO ANY PERSON authorized by law to perform the marriage ceremony,
29       Greeting:
30           You are hereby authorized to join in marriage A B of ______, date of birth ________,
31       and C D of ________, date of birth ________, (and name of parent or guardian
32       consenting), and of this license, duly endorsed, you will make due return to this office
33       immediately after performing the ceremony.
34      
E F, (title of person issuing the license).
35           (b) If such parties intend the marriage to be a covenant marriage, a
36       declaration of intent to contract a covenant marriage, as established in
37       section 1, and amendments thereto, shall be attached to the marriage
38       license and the license shall also include the following:
39           ``We, (name of intended wife) and (name of intended husband), do hereby declare our
40       intent to contract a covenant marriage and, accordingly, have executed a declaration of intent
41       attached hereto.''
42           (c)   No clerk or judge of the district court shall issue a marriage
43       license before the third calendar day (Sunday and holidays included) fol-

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  1       lowing the date of the filing of the application therefor in such clerk's or
  2       judge's office except that in cases of emergency or extraordinary circum-
  3       stances, a judge of the district court may upon proper showing being
  4       made, permit by order of the court the issuance of such marriage license
  5       without waiting three days. Each district court shall keep a record of all
  6       marriages resulting from licenses issued by the court, which record shall
  7       show the names of the persons who were married and the date of the
  8       marriage. No clerk or judge shall issue a license authorizing the marriage
  9       of any person under the age of 18 years without the express consent of
10       such person's father, mother or legal guardian and the consent of the
11       judge unless consent of both the mother and father and any legal guardian
12       or all then living parents and any legal guardian is given in which case the
13       consent of the judge shall not be required. If not given in person at the
14       time of the application, the consent shall be evidenced by a written cer-
15       tificate subscribed thereto and duly attested. Where the applicants or
16       either of them are under 18 years of age and their parents are dead and
17       there is no legal guardian then a judge of the district court may after due
18       investigation give consent and issue the license authorizing the marriage.
19       The judge or clerk may issue a license upon the affidavit of the party
20       personally appearing and applying therefor, to the effect that the parties
21       to whom such license is to be issued are of lawful age, as required by this
22       section, and the judge or clerk is hereby authorized to administer oaths
23       for that purpose.
24           (d) Every person swearing falsely in such affidavit shall be guilty of a
25       misdemeanor and shall be punished by a fine not exceeding $500. A clerk
26       or judge of the district court shall state in every license the birth dates of
27       the parties applying for the same, and if either or both are minors, the
28       name of the father, mother, or guardian consenting to such marriage.
29           (e) Every marriage license shall expire at the end of six months from
30       the date of issuance if the marriage for which the license was issued does
31       not take place within the six-month period of time.
32           Sec. 7. K.S.A. 23-109 is hereby amended to read as follows: 23-109.
33       (a) Every person who performs a marriage ceremony under the provisions
34       of this act shall endorse the person's certificate of the marriage on the
35       license, give the duplicate copy of the license to the parties to the mar-
36       riage and return the license, along with a copy of the declaration of intent
37       to contract a covenant marriage if applicable, within 10 days after the
38       marriage, to the judge or clerk of the district court who issued it. The
39       judge or clerk shall record the marriage on the marriage record in the
40       office of the judge or clerk and shall forward, not later than the third day
41       of the following month, to the secretary of health and environment the
42       license and certificate of marriage, along with a copy of the declaration
43       of intent to contract a covenant marriage if applicable, together with a

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  1       statement of the names of the parties and the name and address of the
  2       person who performed the marriage ceremony.
  3           (b) If no marriage license has been issued by the judge or clerk of
  4       the district court during a month, the judge or clerk shall promptly notify
  5       the secretary of health and environment to that effect on a form provided
  6       for that purpose.
  7           Sec. 8. K.S.A. 60-1601 is hereby amended to read as follows: 60-
  8       1601. (a) (1) Except in the case of a covenant marriage, the district court
  9       shall grant a decree of divorce or separate maintenance for any of the
10       following grounds:   (1) (A) Incompatibility;   (2) (B) failure to perform a
11       material marital duty or obligation; or   (3) (C) incompatibility by reason
12       of mental illness or mental incapacity of one or both spouses.
13             (b) (2) The ground of incompatibility by reason of mental illness or
14       mental incapacity of one or both spouses shall require a finding of either:
15         (1) (A) Confinement of the spouse in an institution by reason of mental
16       illness for a period of two years, which confinement need not be contin-
17       uous; or   (2) (B) an adjudication of mental illness or mental incapacity of
18       the spouse by a court of competent jurisdiction while the spouse is con-
19       fined in an institution by reason of mental illness. In either case, there
20       must be a finding by at least two of three physicians, appointed by the
21       court before which the action is pending, that the mentally ill or mentally
22       incapacitated spouse has a poor prognosis for recovery from the mental
23       illness or mental incapacity, based upon general knowledge available at
24       the time. A decree granted on the ground of incompatibility by reason of
25       mental illness or mental incapacity of one or both spouses shall not relieve
26       a party from contributing to the support and maintenance of the mentally
27       ill or mentally incapacitated spouse. If both spouses are confined to in-
28       stitutions because of mental illness or mental incapacity, the guardian of
29       either spouse may file a petition for divorce and the court may grant the
30       divorce on the ground of incompatibility by reason of mental illness or
31       mental incapacity.
32           (b) Notwithstanding any other law to the contrary and subsequent to
33       the parties obtaining counseling, the district court shall grant a decree of
34       divorce to a spouse of a covenant marriage only upon proof of any of the
35       following grounds:
36           (1) The other spouse has committed adultery.
37           (2) The other spouse has been convicted of capital murder K.S.A.
38       21-3439 and amendments thereto, murder in the first degree K.S.A. 21-
39       3401 and amendments thereto, murder in the second degree K.S.A. 21-
40       3402 and amendments thereto, voluntary manslaughter K.S.A. 21-3403
41       and amendments thereto, involuntary manslaughter K.S.A. 21-3404 or
42       21-3442 and amendments thereto, rape K.S.A. 21-3502 and amendments
43       thereto, indecent liberties with a child K.S.A. 21-3503, and amendments

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  1       thereto, aggravated indecent liberties with a child K.S.A. 21-3504, and
  2       amendments thereto, criminal sodomy subsection (a)(2) and (a)(3) of
  3       K.S.A. 21-3505 and amendments thereto, aggravated criminal sodomy
  4       K.S.A. 21-3506, and amendments thereto, indecent solicitation of a child
  5       K.S.A. 21-3510, and amendments thereto, aggravated indecent solicitation
  6       of a child K.S.A. 21-3511, and amendments thereto, sexual exploitation of
  7       a child K.S.A. 21-3516, and amendments thereto, aggravated sexual bat-
  8       tery K.S.A. 21-3518, and amendments thereto or any conviction for a
  9       felony offense that is comparable to a crime listed above, or any federal
10       or other state conviction for a felony offense that under the laws of this
11       state would be an offense as listed above.
12           (3) The other spouse has abandoned the matrimonial domicile for a
13       period of one year and constantly refuses to return.
14           (4) The other spouse has physically or sexually abused the spouse
15       seeking the divorce or a child of one of the spouses.
16           (5) The spouses have been living separate and apart continuously
17       without reconciliation for a period of two years.
18           (6) (A) The spouses have been living separate and apart continuously
19       without reconciliation for a period of one year from the date the judgment
20       of separate maintenance was signed.
21           (B) If there is a minor child or children of the marriage, the spouses
22       have been living separate and apart continuously without reconciliation
23       for a period of one year and six months from the date the judgment of
24       separate maintenance was signed. However, if abuse of a child of the
25       marriage or a child of one of the spouses is the basis for which the judg-
26       ment of separate maintenance was obtained, then a judgment of divorce
27       may be obtained if the spouses have been living separate and apart con-
28       tinuously without reconciliation for a period of one year from the date
29       the judgment of separate maintenance was signed.
30           (C) Notwithstanding any other law to the contrary and subsequent
31       to the parties obtaining counseling, the district court shall grant a decree
32       of separate maintenance to a spouse of a covenant marriage upon proof
33       of any of the following grounds:
34           (1) The other spouse has committed adultery.
35           (2) The other spouse has been convicted of capital murder K.S.A.
36       21-3439 and amendments thereto, murder in the first degree K.S.A. 21-
37       3401 and amendments thereto, murder in the second degree K.S.A. 21-
38       3402 and amendments thereto, voluntary manslaughter K.S.A. 21-3403
39       and amendments thereto, involuntary manslaughter K.S.A. 21-3404 or
40       21-3442 and amendments thereto, rape K.S.A. 21-3502 and amendments
41       thereto, indecent liberties with a child K.S.A. 21-3503, and amendments
42       thereto, aggravated indecent liberties with a child K.S.A. 21-3504, and
43       amendments thereto, criminal sodomy subsection (a)(2) and (a)(3) of

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  1       K.S.A. 21-3505 and amendments thereto, aggravated criminal sodomy
  2       K.S.A. 21-3506, and amendments thereto, indecent solicitation of a child
  3       K.S.A. 21-3510, and amendments thereto, aggravated indecent solicitation
  4       of a child K.S.A. 21-3511, and amendments thereto, sexual exploitation of
  5       a child K.S.A. 21-3516, and amendments thereto, aggravated sexual bat-
  6       tery K.S.A. 21-3518, and amendments thereto or any conviction for a
  7       felony offense that is comparable to a crime listed above, or any federal
  8       or other state conviction for a felony offense that under the laws of this
  9       state would be an offense as listed above.
10           (3) The other spouse has abandoned the matrimonial domicile for a
11       period of one year and constantly refuses to return.
12           (4) The other spouse has physically or sexually abused the spouse
13       seeking the divorce or a child of one of the spouses.
14           (5) The spouses have been living separate and apart continuously
15       without reconciliation for a period of two years.
16           (6) On account of habitual intemperance of the other spouse, or ex-
17       cesses, cruel treatment, or outrages of the other spouse, if habitual intem-
18       perance, or such ill-treatment is of such a nature as to render their living
19       together insupportable.
20           Sec. 9. K.S.A. 23-105, 23-109 and 60-1601 and K.S.A. 1997 Supp.
21       23-106 are hereby repealed.
22           Sec. 10. This act shall take effect and be in force from and after its
23       publication in the statute book.
24      
25