2005 Regular Session
To: Judiciary A
By: Representative Gunn, Fillingane, Carlton, Howell, Rotenberry, Formby, Wells-Smith
AN ACT TO CREATE A FORM OF MARRIAGE TO BE KNOWN AS COVENANT MARRIAGE REQUIRING CERTAIN DECLARATIONS; TO PROVIDE THAT A COVENANT MARRIAGE MAY BE DISSOLVED IN CASES OF ADULTERY; TO ALLOW THE DEFERRED SALE OF PROPERTY; TO AMEND SECTIONS 93-1-5, 93-5-1 AND 93-5-23, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. There is created in the state a union between man and woman to be known as "covenant marriage." In order to be eligible to enter into a covenant marriage, each party shall make a declaration of intent to do so upon application for a marriage license. The declaration of intent shall contain the following:
(a) Written permission of both parents of both parties, unless deceased at the time of the application, or unless extraordinary circumstances render written permission untenable.
(b) Presentation of proof that both parties have attended premarital counseling by a clergyman or marriage counselor, which premarital counseling included a discussion of the seriousness of covenant marriage.
(c) Signatures of both parties on notarized documents which state, "I, ________, do hereby declare my intent to enter into covenant marriage. I do so with the full understanding that a covenant marriage may not be dissolved except by reason of adultery or desertion. I have attended premarital counseling in good faith and understand my responsibilities to the marriage. I promise to seek counsel in times of trouble. I believe that I have chosen my life mate wisely and have disclosed to him or her all facts that may adversely affect his or her decision to enter into this covenant with me."
SECTION 2. Notwithstanding any provisions of law to the contrary, a covenant marriage may not be dissolved except by reason of adultery or desertion. A divorce may be granted on grounds of adultery or desertion if the defendant has been guilty of adultery or desertion, but if it appears that the adultery or desertion complained of was occasioned by collusion of the parties with the intent to procure a divorce, or if it appears that both parties have been guilty of adultery or desertion, a divorce shall not be granted. If a divorce is granted, the court may consider the following guidelines:
(a) If the husband is guilty of adultery and the marketable skills of the wife are such that her potential earning capacity would cause a reduction in her standard of living, the wife may claim alimony and suit money in the complaint or by motion as provided by law, and if the complaint is well-founded, the court shall allow a reasonable sum therefor. No alimony shall be granted to an adulterous wife.
(b) In an action involving minor children, the court may defer the sale of the family home for one (1) year to minimize trauma to the children.
SECTION 3. Section 93-1-5, Mississippi Code of 1972, is amended as follows:
93-1-5. It shall be unlawful for the circuit court clerk to issue a marriage license until the following conditions precedent have been complied with:
(a) Parties desiring a marriage license shall make application therefor in writing to the clerk of the circuit court of any county in the State of Mississippi; provided, however, that if the female applicant shall be under the age of twenty-one (21) years and shall be a resident of the State of Mississippi, said application shall be made to the circuit court clerk of the county of residence of such female applicant. Said application shall be forthwith filed with the circuit court clerk and shall include the names, ages and addresses of the parties applying; the names and addresses of the parents of the parties applying, and if no parents, then names and addresses of the guardian or next of kin; the signatures of witnesses; and any other data which may be required by law or the Mississippi State Board of Health. The application shall be sworn to by both applicants.
(b) The application shall remain on file, open to the public, in the office of the circuit court clerk for a period of three (3) days before the clerk is authorized to issue the marriage license. Provided, however, that if satisfactory proof is furnished to the judge of any circuit, chancery or county court that sufficient reasons exist, then the judge of any such court in the judicial district where either of such parties resides if they be over the age of twenty-one (21) years, or where the female resides if she be under the age of twenty-one (21), may waive the three-day waiting period and by written instrument authorize the clerk of the court to issue the marriage license to the parties if they are otherwise qualified by law. Authorization shall be a part of the confidential files of the clerk of the court, subject to inspection only by written permission of the judge. If either of the applying parties appears from the evidence to be under twenty-one (21) years of age, the circuit court clerk, immediately upon filing the application, shall cause notice of the filing of said application to be sent by prepaid certified mail to the father, mother, guardian or next of kin of both applying parties at the address named in said application.
(c) An affidavit showing the age of both applying parties shall be made by either the father, mother, guardian or next of kin of each of the contracting parties and filed with the clerk of the circuit court along with the application; or in lieu thereof, said both applying parties shall appear in person before the circuit court clerk and make and subscribe an oath in person, which said affidavit shall be attached to and noted on the application for the marriage license. In addition to either of the previous conditions stated, further proof of age shall be presented to the circuit court clerk in the form of either a birth certificate, baptismal record, armed service discharge, armed service identification card, life insurance policy, insurance certificate, school record, driver's license, or other official document evidencing age. Said document substantiating age and date of birth shall be examined by the circuit court clerk before whom application is made, and the circuit court clerk shall retain in his file with the application such document or a certified or photostatic copy thereof.
(d) The clerk shall not issue a marriage license under the provisions of this section unless the male applicant is at least seventeen (17) years of age, and the female is at least fifteen (15) years of age; provided, however, that if satisfactory proof is furnished to the judge of any circuit, chancery or county court that sufficient reasons exist and that said parties desire to be married to each other and that the parents or other person in loco parentis of the person or persons so under age consent thereto, then the judge of any such court in the county where either of such parties resides may waive the minimum age requirement and by written instrument authorize the clerk of the court to issue the marriage license to the parties if they are otherwise qualified by law. Authorization shall be a part of the confidential files of the clerk of the court, subject to inspection only by written permission of the judge.
(e) A medical certificate dated within thirty (30) days prior to the application shall be presented to the circuit court clerk showing that the applicant is free from syphilis, as nearly as can be determined by a blood test performed in a laboratory approved by the State Board of Health. The medical certificate may be obtained through the local health department by the applicant or applicants, or it may be obtained through any private laboratory approved by the State Board of Health. Said medical certificate shall be examined by the circuit court clerk and filed in a permanent file kept by the clerk for this purpose.
(f) In no event shall a license be issued by the circuit court clerk when it appears to the circuit court clerk that the applicants are, or either of them is, drunk, insane or an imbecile.
(g) The circuit clerk is authorized to grant a license for a covenant marriage as provided by Section 1 of this act.
Any circuit clerk shall be liable under his official bond because of noncompliance with the provisions of this section.
Any circuit court clerk who issues a marriage license without complying with the provisions of this section shall be guilty of a misdemeanor, and upon conviction shall be punished by a fine of not less than Fifty Dollars ($50.00) and not more than Five Hundred Dollars ($500.00).
SECTION 4. Section 93-5-1, Mississippi Code of 1972, is amended as follows:
93-5-1. Except as otherwise provided by Section 2 of this act, divorces from the bonds of matrimony may be decreed to the injured party for any one or more of the following twelve causes, viz:
First. Natural impotency.
Second. Adultery, unless it should appear that it was committed by collusion of the parties for the purpose of procuring a divorce, or unless the parties cohabited after a knowledge by complainant of the adultery.
Third. Being sentenced to any penitentiary, and not pardoned before being sent there.
Fourth. Wilful, continued and obstinate desertion for the space of one (1) year.
Fifth. Habitual drunkenness.
Sixth. Habitual and excessive use of opium, morphine or other like drug.
Seventh. Habitual cruel and inhuman treatment.
Eighth. Insanity or idiocy at the time of marriage, if the party complaining did not know of such infirmity.
Ninth. Marriage to some other person at the time of the pretended marriage between the parties.
Tenth. Pregnancy of the wife by another person at the time of the marriage, if the husband did not know of such pregnancy.
Eleventh. Either party may have a divorce if they be related to each other within the degrees of kindred between whom marriage is prohibited by law.
Twelfth. Incurable insanity. But no divorce shall be granted upon this ground unless the insane party shall have been under regular treatment for insanity and causes thereof, confined in an institution for the insane for a period of at least three (3) years immediately preceding the commencement of the action. Provided, however, that transfer of an insane party to his or her home for treatment or a trial visit on prescription or recommendation of a licensed physician, which treatment or trial visit proves unsuccessful after a bona fide effort by the complaining party to effect a cure, upon the reconfinement of the insane party in an institution for the insane, shall be regular treatment for insanity and causes thereof, and the period of time so consumed in seeking to effect a cure, or while on a trial visit home, shall be added to the period of actual confinement in an institution for the insane in computing the required period of three (3) years confinement immediately preceding the commencement of the action. No divorce shall be granted because of insanity until after a thorough examination of such insane person by two (2) physicians who are recognized authorities on mental diseases. One (1) such physician shall be either the superintendent of the state hospital or the veterans hospital for the insane in which the patient is confined, or a member of the medical staff of such hospital who has had the patient in charge. Before incurable insanity can be successfully proven as a ground for divorce, it shall be necessary that both such physicians make affidavit that such patient is a mentally disturbed person at the time of the examination and both affidavits shall be made a part of the permanent record of the divorce proceedings and shall create the prima facie presumption of incurable insanity, such as would justify a divorce based thereon. Service of process shall be made on the superintendent of the hospital in which the defendant is a patient. In event the patient is in a hospital outside the state, process shall be served by publication, as in other cases of service by publication, together with the sending of a copy by registered mail to the superintendent of said hospital. In addition thereto, process shall be served upon the next blood relative and guardian, if any. In event there is no legal guardian, the court shall appoint a guardian ad litem to represent the interest of the insane person. Such relative or guardian and superintendent of the institution shall be entitled to appear and be heard upon any and all issues. The status of the parties as to the support and maintenance of the insane person shall not be altered in any way by the granting of the divorce.
However, in the discretion of the chancery court, and in such cases as the court may deem it necessary and proper, before any such decree is granted on the ground of incurable insanity, the complainant, when ordered by the court, shall enter into bond, to be approved by the court, in such an amount as the court may think just and proper, conditioned for the care and keeping of such insane person during the remainder of his or her natural life, unless such insane person has a sufficient estate in his or her own right for such purpose.
SECTION 5. Section 93-5-23, Mississippi Code of 1972, is amended as follows:
93-5-23. When a divorce shall be decreed from the bonds of matrimony, the court may, in its discretion, having regard to the circumstances of the parties and the nature of the case, as may seem equitable and just, make all orders touching the care, custody and maintenance of the children of the marriage, and also touching the maintenance and alimony of the wife or the husband, or any allowance to be made to her or him, and shall, if need be, require bond, sureties or other guarantee for the payment of the sum so allowed. Orders touching on the custody of the children of the marriage shall be made in accordance with the provisions of Section 93-5-24. The court may afterwards, on petition, change the decree, and make from time to time such new decrees as the case may require. However, where proof shows that both parents have separate incomes or estates, the court may require that each parent contribute to the support and maintenance of the children of the marriage in proportion to the relative financial ability of each. In the event a legally responsible parent has health insurance available to him or her through an employer or organization that may extend benefits to the dependents of such parent, any order of support issued against such parent may require him or her to exercise the option of additional coverage in favor of such children as he or she is legally responsible to support.
Whenever the court has ordered a party to make periodic payments for the maintenance or support of a child, but no bond, sureties or other guarantee has been required to secure such payments, and whenever such payments as have become due remain unpaid for a period of at least thirty (30) days, the court may, upon petition of the person to whom such payments are owing, or such person's legal representative, enter an order requiring that bond, sureties or other security be given by the person obligated to make such payments, the amount and sufficiency of which shall be approved by the court. The obligor shall, as in other civil actions, be served with process and shall be entitled to a hearing in such case.
Whenever in any proceeding in the chancery court concerning the custody of a child a party alleges that the child whose custody is at issue has been the victim of sexual or physical abuse by the other party, the court may, on its own motion, grant a continuance in the custody proceeding only until such allegation has been investigated by the Department of Human Services. At the time of ordering such continuance the court may direct the party, and his attorney, making such allegation of child abuse to report in writing and provide all evidence touching on the allegation of abuse to the Department of Human Services. The Department of Human Services shall investigate such allegation and take such action as it deems appropriate and as provided in such cases under the Youth Court Law (being Chapter 21 of Title 43, Mississippi Code of 1972) or under the laws establishing family courts (being Chapter 23 of Title 43, Mississippi Code of 1972).
If after investigation by the Department of Human Services or final disposition by the youth court or family court allegations of child abuse are found to be without foundation, the chancery court shall order the alleging party to pay all court costs and reasonable attorney's fees incurred by the defending party in responding to such allegation.
The court may investigate, hear and make a determination in a custody action when a charge of abuse and/or neglect arises in the course of a custody action as provided in Section 43-21-151, and in such cases the court shall appoint a guardian ad litem for the child as provided under Section 43-21-121, who shall be an attorney. Unless the chancery court's jurisdiction has been terminated, all disposition orders in such cases for placement with the Department of Human Services shall be reviewed by the court or designated authority at least annually to determine if continued placement with the department is in the best interest of the child or public.
The duty of support of a child terminates upon the emancipation of the child. The court may determine that emancipation has occurred and no other support obligation exists when the child:
(a) Attains the age of twenty-one (21) years, or
(b) Marries, or
(c) Discontinues full-time enrollment in school and obtains full-time employment prior to attaining the age of twenty-one (21) years, or
(d) Voluntarily moves from the home of the custodial parent or guardian and establishes independent living arrangements and obtains full-time employment prior to attaining the age of twenty-one (21) years.
The court may enter an order for alimony consistent with the provisions of Section 2 of this act.
SECTION 6. This act shall take effect and be in force from and after July 1, 2005.