Text of KS HB 2254 (2012)

Session of 2011 HOUSE BILL No. 2254 By Representatives Howell, Arpke, Boman, Brown, Brunk, Calloway, Collins, DeGraaf, Garber, Goico, Gonzalez, Goodman, Gregory, Hedke, Hermanson, M. Holmes, Huebert, Kelley, Kiegerl, Kinzer, Mast, McLeland, Meier, Mesa, Montgomery, O'Hara, Osterman, Otto, Patton, Peck, Rhoades, Ryckman, Scapa, Seiwert, Siegfreid, Vickrey and Weber 2-9 AN ACT concerning marriage; relating to covenant marriage; amending K.S.A. 23-105, 23-109, 60-1601 and 60-1627 and K.S.A. 2010 Supp. 23-106 and repealing the existing sections. Be it enacted by the Legislature of the State of Kansas: New Section 1. (a) A covenant marriage is a marriage entered into by one male and one female who understand and agree that the marriage between them is a lifelong relationship. Parties to a covenant marriage have received counseling emphasizing the nature and purposes of marriage and the responsibilities thereto. Only when there has been a complete and total breach of the marital covenant commitment may the nonbreaching party seek a declaration that the marriage is no longer legally recognized. (b) A man and woman may contract a covenant marriage by declaring their intent to do so on their application for a marriage license as provided in K.S.A. 23-106, and amendments thereto, and executing a declaration of intent to contract a covenant marriage, as provided in subsection (c). The application for a marriage license and the declaration of intent shall be filed with the district court which issues the marriage license. (c) A declaration of intent to contract a covenant marriage shall contain all of the following: (1) A recitation by the parties to the following effect: "A COVENANT MARRIAGE We do solemnly declare that marriage is a covenant between a man and a woman who agree to live together as husband and wife for so long as they both may live. We have chosen each other carefully and disclosed to one another everything which could adversely affect the decision to enter into this marriage. We have received premarital counseling on the nature, purposes and responsibilities of marriage. We have read the covenant marriage act, and we understand that a covenant marriage is for life. If we experience marital difficulties, we commit ourselves to take all reasonable efforts to preserve our marriage, including marital counseling. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 HB 2254 2 With full knowledge of what this commitment means, we do hereby declare that our marriage will be bound by Kansas law on covenant marriages and we promise to love, honor and care for one another as husband and wife for the rest of our lives." (2) (A) An affidavit by the parties that they have received premarital counseling from a priest, minister, rabbi, clergy person or organized ministry of any religious denomination or sect, including a Christian Science practitioner, or a licensed marriage and family therapist, which counseling shall include a discussion of the seriousness of covenant marriage, communication of the fact that a covenant marriage is a commitment for life, a discussion of the obligation to seek marital counseling in times of marital difficulties, and a discussion of the exclusive grounds for legally terminating a covenant marriage by divorce or by divorce after separate maintenance. (B) A notarized attestation, signed by the counselor and attached to or included in the parties' affidavit, confirming that the parties were counseled as to the nature and purpose of the marriage and the grounds for termination thereof and acknowledging that the counselor provided to the parties the informational pamphlet developed and promulgated by the office of the attorney general, pursuant to section 4, and amendments thereto, which pamphlet entitled "covenant marriage act" provides a full explanation of the terms and conditions of a covenant marriage. (3) (A) The signature of both parties witnessed by a notary. (B) If one or both of the parties are minors, the written consent or authorization of those persons required by law to consent to or authorize the marriage of minors. (d) The declaration shall contain two separate documents, the recitation and the affidavit, the latter of which shall include the attestation either included therein or attached thereto. The recitation shall be prepared in duplicate originals, one of which shall be retained by the parties and the other, together with the affidavit and attestation, shall be registered and recorded as provided in article 1 of chapter 23 of the Kansas Statutes Annotated, and amendments thereto. (e) In addition to any fee for a marriage license, the supreme court shall establish by rule a covenant marriage fee not to exceed $25. New Sec. 2. (a) A covenant marriage shall be governed by all of the provisions of article 1 of chapter 23 of the Kansas Statutes Annotated and article 16 of chapter 60 of the Kansas Statutes Annotated, and amendments thereto. (b) As used in this act, "counselor" includes, but is not limited to, a priest, minister, rabbi, clergy person or organized ministry of any religious denomination or sect, including Christian Science practitioner, or a licensed marriage and family therapist. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 HB 2254 3 New Sec. 3. (a) On or after July 1, 2011, married couples may execute a declaration of intent to designate their marriage as a covenant marriage to be governed by the laws relative thereto. (b) (1) This declaration of intent, in the form and containing the contents required by subsection (c), shall be presented to the district court who issued the couple's marriage license and the secretary of health and environment with whom the couple's marriage license is filed. If the couple were married outside of this state, a copy of the foreign marriage certificate, with the declaration of intent attached thereto, shall be filed with the district court who issues marriage licenses in the county in which the couple is domiciled. The court shall make a notation on the marriage certificate of the declaration of intent of a covenant marriage and attach a copy of the declaration to the certificate. (2) On or before the 15th day of each calendar month, the court shall forward to the secretary of health and environment each declaration of intent of a covenant marriage filed with the court during the preceding calendar month pursuant to this section. (c) (1) A declaration of intent to designate a marriage as a covenant marriage shall contain all of the following: (A) A recitation by the parties to the following effect: "A COVENANT MARRIAGE We do solemnly declare that marriage is a covenant between a man and a woman who agree to live together as husband and wife for so long as they both may live. We understand the nature, purpose and responsibilities of marriage. We have read the covenant marriage act and we understand that a covenant marriage is for life. If we experience marital difficulties, we commit ourselves to take all reasonable efforts to preserve our marriage, including marital counseling. With full knowledge of what this commitment means, we do hereby declare that our marriage will be bound by Kansas law on covenant marriage, and we renew our promise to love, honor and care for one another as husband and wife for the rest of our lives." (B) (i) An affidavit by the parties that they have discussed their intent to designate their marriage as a covenant marriage with a priest, minister, rabbi, clergy person or organized ministry of any religious denomination or sect, including a Christian Science practitioner, or a licensed marriage and family therapist, which included a discussion of the obligation to seek marital counseling in times of marital difficulties and the exclusive grounds for legally terminating a covenant marriage by divorce or by divorce after separate maintenance. (ii) A notarized attestation, signed by the counselor and attached to the parties' affidavit, acknowledging that the counselor provided to the parties the information pamphlet developed and promulgated by the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 HB 2254 4 office of the attorney general, pursuant to section 4, and amendments thereto, which pamphlet entitled "covenant marriage act" provides a full explanation of the terms and conditions of a covenant marriage. (iii) The signature of both parties witnessed by a notary. (2) The declaration shall contain two separate documents, the recitation and the affidavit, the latter of which shall include the attestation either included therein or attached thereto. The recitation shall be prepared in duplicate originals, one of which shall be retained by the parties and the other, together with the affidavit and attestation, shall be filed as provided in subsection (b). (d) The court shall collect a declaration of intent of a covenant marriage fee as established by the supreme court by rule in an amount not to exceed $50. New Sec. 4. On or before September 1, 2011, the office of the attorney general shall develop and promulgate an informational pamphlet entitled "covenant marriage act." Such pamphlet shall outline in sufficient detail the consequences of entering into a covenant marriage. Such pamphlet shall be made available to any counselor who provides marriage counseling as provided for by this act. Sec. 5. K.S.A. 23-105 is hereby amended to read as follows: 23-105. All marriages, including covenant marriages, occurring within the state shall be registered under the supervision of the secretary of health and environment as provided in K.S.A. 65-102, and amendments thereto. Sec. 6. K.S.A. 2010 Supp. 23-106 is hereby amended to read as follows: 23-106. (a) The clerks of the district courts or judges thereof, when applied to for a marriage license by any person who is one of the parties to the proposed marriage and who is legally entitled to a marriage license, shall issue a marriage license in substance as follows: MARRIAGE LICENSE (Name of place where office located, month, day and year.) TO ANY PERSON authorized by law to perform the marriage ceremony, Greeting: You are hereby authorized to join in marriage A B of ____________, date of birth _______, and C D of ____________, date of birth _______, (and name of parent or guardian consenting), and of this license, duly endorsed, you will make due return to this office immediately after performing the ceremony. E F, (title of person issuing the license). (b) If such parties intend the marriage to be a covenant marriage, a declaration of intent to contract a covenant marriage, as established in section 1, and amendments thereto, shall be attached to the marriage license and the license shall also include the following: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 HB 2254 5 "We, (name of intended wife) and (name of intended husband), do hereby declare our intent to contract a covenant marriage and, accordingly, have executed a declaration of intent attached hereto." (b)(c) No clerk or judge of the district court shall issue a marriage license before the third calendar day (Sunday, holidays, and days on which the office of the clerk of the court is not accessible included) following the date of the filing of the application therefor in such clerk's or judge's office except that in cases of emergency or extraordinary circumstances, a judge of the district court may upon proper showing being made, permit by order of the court the issuance of such marriage license without waiting three days. Each district court shall keep a record of all marriages resulting from licenses issued by the court, which record shall show the names of the persons who were married and the date of the marriage. (c)(d) No clerk or judge shall issue a license authorizing the marriage of any person: (1) Under the age of 16 years, except that a judge of the district court may, after due investigation, give consent and issue the license authorizing the marriage of a person 15 years of age when the marriage is in the best interest of the person 15 years of age; or (2) who is 16 or 17 years of age without the express consent of such person's father, mother or legal guardian and the consent of the judge unless consent of both the mother and father and any legal guardian or all then living parents and any legal guardian is given in which case the consent of the judge shall not be required. If not given in person at the time of the application, the consent shall be evidenced by a written certificate subscribed thereto and duly attested. Where the applicants or either of them are 16 or 17 years of age and their parents are dead and there is no legal guardian then a judge of the district court may after due investigation give consent and issue the license authorizing the marriage. (d)(e) The judge or clerk may issue a license upon the affidavit of the party personally appearing and applying therefor, to the effect that the parties to whom such license is to be issued are of lawful age, as required by this section, and the judge or clerk is hereby authorized to administer oaths for that purpose. (e)(f) Every person swearing falsely in such affidavit shall be guilty of a misdemeanor and shall be punished by a fine not exceeding $500. A clerk or judge of the district court shall state in every license the birth dates of the parties applying for the same, and if either or both are 16 or 17 years of age, the name of the father, mother, or guardian consenting to such marriage. (f)(g) Every marriage license shall expire at the end of six months from the date of issuance if the marriage for which the license was issued 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 HB 2254 6 does not take place within the six-month period of time. Sec. 7. K.S.A. 23-109 is hereby amended to read as follows: 23-109. (a) Every person who performs a marriage ceremony under the provisions of article 1 of chapter 23 of the Kansas Statutes Annotated, and amendments thereto, this act shall endorse the person's certificate of the marriage on the license, give the duplicate copy of the license to the parties to the marriage and return the license, along with a copy of the declaration of intent to contract a covenant marriage, if applicable, within 10 days after the marriage, to the judge or clerk of the district court who issued it. The judge or clerk shall record the marriage on the marriage record in the office of the judge or clerk and shall forward, not later than the third day of the following month, to the secretary of health and environment the license and certificate of marriage, along with a copy of the declaration of intent to contract a covenant marriage, if applicable, together with a statement of the names of the parties and the name and address of the person who performed the marriage ceremony. (b) If no marriage license has been issued by the judge or clerk of the district court during a month, the judge or clerk shall promptly notify the secretary of health and environment to that effect on a form provided for that purpose. Sec. 8. K.S.A. 60-1601 is hereby amended to read as follows: 60- 1601. (a) (1) Except in the case of a covenant marriage, the district court shall grant a decree of divorce or separate maintenance for any of the following grounds: (1)(A) Incompatibility; (2)(B) failure to perform a material marital duty or obligation; or (3)(C) incompatibility by reason of mental illness or mental incapacity of one or both spouses. (b)(2) The ground of incompatibility by reason of mental illness or mental incapacity of one or both spouses shall require a finding of either: (1)(A) Confinement of the spouse in an institution by reason of mental illness for a period of two years, which confinement need not be continuous; or (2)(B) an adjudication of mental illness or mental incapacity of the spouse by a court of competent jurisdiction while the spouse is confined in an institution by reason of mental illness. In either case, there must be a finding by at least two of three physicians, appointed by the court before which the action is pending, that the mentally ill or mentally incapacitated spouse has a poor prognosis for recovery from the mental illness or mental incapacity, based upon general knowledge available at the time. A decree granted on the ground of incompatibility by reason of mental illness or mental incapacity of one or both spouses shall not relieve a party from contributing to the support and maintenance of the mentally ill or mentally incapacitated spouse. If both spouses are confined to institutions because of mental illness or mental incapacity, the guardian of either spouse may file a petition for divorce 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 HB 2254 7 and the court may grant the divorce on the ground of incompatibility by reason of mental illness or mental incapacity. (b) Notwithstanding any other law to the contrary and subsequent to the parties obtaining counseling, the district court shall grant a decree of divorce to a spouse of a covenant marriage only upon proof of any of the following grounds: (1) The other spouse has committed adultery. (2) The other spouse has been convicted of capital murder, as defined in K.S.A. 21-3439, prior to its repeal, or section 36 of chapter 136 of the 2010 Session Laws of Kansas, and amendments thereto, murder in the first degree, as defined in K.S.A. 21-3401, prior to its repeal, or section 37 of chapter 136 of the 2010 Session Laws of Kansas, and amendments thereto, murder in the second degree, as defined in K.S.A. 21-3402, prior to its repeal, or section 38 of chapter 136 of the 2010 Session Laws of Kansas, and amendments thereto, voluntary manslaughter, as defined in K.S.A. 21-3403, prior to its repeal, or section 39 of chapter 136 of the 2010 Session Laws of Kansas, and amendments thereto, involuntary manslaughter, as defined in K.S.A. 21-3404 or 21- 3442, prior to their repeal, or section 40 of chapter 136 of the 2010 Session Laws of Kansas, and amendments thereto, rape, as defined in K.S.A. 21-3502, prior to its repeal, or section 67 of chapter 136 of the 2010 Session Laws of Kansas, and amendments thereto, indecent liberties with a child, as defined in K.S.A. 21-3503, prior to its repeal, or subsection (a) of section 70 of chapter 136 of the 2010 Session Laws of Kansas, and amendments thereto, aggravated indecent liberties with a child as defined in K.S.A. 21-3504, prior to its repeal, or subsection (b) of section 70 of chapter 136 of the 2010 Session Laws of Kansas, and amendments thereto, criminal sodomy as defined in subsection (a)(2) and (a)(3) of K.S.A. 21-3505, prior to its repeal, or subsection (a)(3) or (a)(4) of section 68 of chapter 136 of the 2010 Session Laws of Kansas, and amendments thereto, aggravated criminal sodomy, as defined in K.S.A. 21-3506, prior to its repeal, or subsection (b) of section 68 of chapter 136 of the 2010 Session Laws of Kansas, and amendments thereto, indecent solicitation of a child, as defined in K.S.A. 21-3510, prior to its repeal, or subsection (a) of section 72 of chapter 136 of the 2010 Session Laws of Kansas, and amendments thereto, aggravated indecent solicitation of a child, as defined in K.S.A. 21-3511, prior to its repeal, or subsection (b) of section 72 of chapter 136 of the 2010 Session Laws of Kansas, and amendments thereto, sexual exploitation of a child as defined in K.S.A. 21-3516, prior to its repeal, or section 74 of chapter 136 of the 2010 Session Laws of Kansas, and amendments thereto, aggravated sexual battery as defined in K.S.A. 21-3518, prior to its repeal, or subsection (b) of section 69 of chapter 136 of the 2010 Session 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 HB 2254 8 Laws of Kansas, and amendments thereto, or any conviction for a felony offense that is comparable to a crime listed above, or any federal or other state conviction for a felony offense that under the laws of this state would be an offense as listed above. (3) The other spouse has abandoned the matrimonial domicile for a period of 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 continuously without reconciliation for a period of two years. (6) (A) The spouses have been living separate and apart continuously without reconciliation for a period of one year from the date the judgment of separate maintenance was signed. (B) If there is a minor child or children of the marriage, the spouses have been living separate and apart continuously without reconciliation for a period of one year and six months from the date the judgment of separate maintenance was signed. However, if abuse of a child of the marriage or a child of one of the spouses is the basis for which the judgment of separate maintenance was obtained, then a judgment of divorce may be obtained if the spouses have been living separate and apart continuously without reconciliation for a period of one year from the date the judgment of separate maintenance was signed. (C) Notwithstanding any other law to the contrary and subsequent to the parties obtaining counseling, the district court shall grant a decree of separate maintenance to a spouse of a covenant marriage upon proof of any of the following grounds: (1) The other spouse has committed adultery. (2) The other spouse has been convicted of a crime specified in subsection (b)(2). (3) The other spouse has abandoned the matrimonial domicile for a period of 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 continuously without reconciliation for a period of two years. (6) On account of habitual intemperance of the other spouse, or excesses, cruel treatment, or outrages of the other spouse, if habitual intemperance, or such ill-treatment is of such a nature as to render their living together insupportable. Sec. 9. K.S.A. 60-1627 is hereby amended to read as follows: 60- 1627. (a) An action for interspousal tort shall not be consolidated with an action under K.S.A. 60-1601, et seq., and amendments thereto, unless the parties agree to consolidation and consolidation is approved by the court. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 HB 2254 9 (b) A decree of divorce or separate maintenance granted under subsections (a)(1) or (3)(A) or (a)(1)(C) of K.S.A. 60-1601, and amendments thereto, shall not preclude an action for interspousal tort. (c) A decree of divorce or separate maintenance granted under subsection (a)(2)(B) of K.S.A. 60-1601, and amendments thereto, shall preclude an action for interspousal tort based upon the same factual allegations. An action for interspousal tort which has been finally determined shall preclude an action under subsection (a)(2)(B) of K.S.A. 60-1601, and amendments thereto, based upon the same factual allegations. Sec. 10. K.S.A. 23-105, 23-109, 60-1601 and 60-1627 and K.S.A. 2010 Supp. 23-106 are hereby repealed. Sec. 11. This act shall take effect and be in force from and after its publication in the statute book. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15