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5 - Covenant Marriage Laws
- Edited by Joel A. Nichols, University of St Thomas, Minnesota
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- Book:
- Marriage and Divorce in a Multi-Cultural Context
- Published online:
- 05 November 2011
- Print publication:
- 31 October 2011, pp 120-137
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Summary
Three American states – Louisiana, Arizona, and Arkansas – statutorily authorize couples to enter into a “covenant marriage.” These covenant marriage statutes incorporate into law, in varying degrees, the understanding of traditional marriage as historically recognized in Western countries – a sexually monogamous union between one man and one woman intended to be for life. Further, covenant marriage attempts to lessen the problems of divorce by strengthening the institution of marriage. John Witte explains the logic well:
The Western tradition has learned, through centuries of experience, to balance the norms of marital formation, maintenance, and dissolution.… The lesson in this is that rules governing marriage formation and dissolution must be comparable in their stringency. … Loose formation rules demand loose dissolution rules, as we see today. To fix “the modern problem of divorce” will require reforms of rules at both ends of the marital process.
What is covenant marriage?
Covenant evokes a rich heritage both in the law, as a special form of contract with specific formalities and greater binding force, and in religion, as an unbreakable and perpetual agreement between the Creator and mankind. The word covenant added as an adjective preceding marriage carries with it that rich heritage from dual sources to imbue and renew our understanding of a very old, yet indispensable, social institution. As Max Stackhouse describes a covenant’s effect:
[t]he sociotheological idea of covenant is so rich with ethical content that it gives moral meaning to all it touches.… [A] covenant shifts the terms of … relationships. [A covenant] is not cut casually, for it entails not only celebration and sacrifice but also the incorporation of new shared duties and rights that nourish life with other meanings, and thus a sense that these duties and rights are based on an enduring law and purpose as established by a higher authority.
13 - Postmodern Marriage as Seen through the Lens of the ALI's “Compensatory Payments”
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- By Katherine Shaw Spaht, Professor of Law, Louisiana State University
- Edited by Robin Fretwell Wilson, University of Maryland, Baltimore
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- Book:
- Reconceiving the Family
- Published online:
- 25 January 2010
- Print publication:
- 17 July 2006, pp 249-268
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Summary
The “no-fault” divorce revolution, begun in the late 1960s, stalled in many states in the United States with the stubborn persistence of fault as a factor in alimony awards and the division of marital property after divorce. In the Introduction to the Principles, the drafters assert that “American law is sharply divided on the question of whether ‘marital misconduct’ should be considered in allocating marital property or awarding alimony.” During the 1970s, many states not only retained fault for purposes of the financial incidents of divorce but also combined a new no-fault ground for divorce with existing fault grounds. Thus, divorce law of many states, as well as the law governing ancillary matters, remains “mixed,” with both fault and no-fault grounds for divorce, and fault taken into consideration as a factor in alimony or property awards or both.
As a means of completing the stalled no-fault revolution, achieving unity among state laws that was not accomplished by the Uniform Marriage and Dissolution Act (“UMDA”), and providing a coherent theory justifying awards to a spouse after divorce, the Principles propose a set of provisions that would compensate a spouse for certain losses attributable to the marriage and its termination. Loss would substitute for the almost universal criterion today of need, and fault would be eliminated almost entirely from consideration in the Principles.
6 - Louisiana's covenant marriage law: recapturing the meaning of marriage for the sake of the children
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- By Katherine Shaw Spaht, Professor of Law University of Louisiana, Baton Rouge, Louisiana, USA
- Edited by Antony W. Dnes, University of Hertfordshire, Robert Rowthorn, University of Cambridge
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- Book:
- The Law and Economics of Marriage and Divorce
- Published online:
- 13 August 2009
- Print publication:
- 14 February 2002, pp 92-117
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Summary
Though American divorce law was never intended in principle to be as unusual as it has turned out in fact, it nevertheless carries a powerful ideology, sending out distinctive messages about commitment, responsibility, and dependency. … The American story about marriage, as told in the law and in much popular literature, goes something like this: marriage is a relationship that exists primarily for the fulfillment of the individual spouses. If it ceases to perform this function, no one is to blame and either spouse may terminate it at will.
(Glendon, 1987, pp. 106, 108)Introduction
The described redefinition of marriage “did not take place overnight in Western nations” (Glendon, 1987, p. 65). The process of change began well before the 1960s and 1970s, when “no-fault” divorce was generally adopted in the United States and other Western countries. In fact, divorce legislation in developed countries has proceeded for the past two hundred years in one general direction: it has become easier and easier for dissatisfied spouses to escape the marital relationship and, consequently, their familial responsibilities.
What has happened to alter so radically the American conception of marriage? Unquestionably, powerful social, economic, and cultural forces have been at work, eroding traditional notions of moral responsibility, and changes in the law have reflected such trends. The ideology of “no-fault” divorce conforms to fashionable theories that abhor objective value judgments and promotes an obsessive concentration on each individual's subjective self-fulfillment (Kramer, 1997; see also Glendon, 1987, p. 119; Gallagher, 1996, p. 265; Whitehead, 1997, p. 194).