Marriage Contracts Restricting No-Fault Divorce -- Washington State
bill
Part of the Divorce Reform Page of
Americans for Divorce Reform
As Reported By House Committee On Law & Justice
Title: An act relating to written marriage contracts.
Brief Description: Providing for written marriage contracts. [Couples could
make contracts that prevent a no-fault divorce unless both spouses consent
to one.]
SB 5532 - Authorizes two persons of the opposite sex to enter into a written
marriage contract providing that the marital relationship will not be
dissolved except upon a showing by a preponderance of the evidence by
one party of the fault of the other party that constitutes grounds for
dissolution.
Background: Marriage is a civil contract. In 1973, Washington adopted
the Uniform Marriage and Divorce Act and became a "no-fault" divorce
state. Either spouse may dissolve the marriage contract and obtain a
divorce by alleging that the marriage is "irretrievably broken."
The court must dispose of the parties' property without regard to
marital misconduct.
Prior to the adoption of the uniform act, Washington was a "fault"
divorce state. Divorce could only be granted for one of several
reasons: (1) consent to the marriage was obtained by fraud or force and
no voluntary cohabitation followed the discovery of the fraud; (2) a
party was incapable of consent due to insufficient age or mental
incapacity; (3) adultery and the action was filed within one year of
learning about the adultery; (4) impotency; (5) abandonment for one
year; (6) cruel treatment of either party by the other, or personal
indignities rendering life burdensome; (7) habitual drunkenness of
either party; (8) neglect or refusal of the husband to make suitable
provision for his family; (9) imprisonment; (10) living separate and
apart for five consecutive years without regard to fault in the
separation; or (11) insanity for a period of two years before filing for
divorce.
Sponsors: Representatives Padden, Backlund and McMahan.
Brief History:
Committee Activity:
Law & Justice: 2/15/95, 2/21/95 [DP].
HOUSE COMMITTEE ON LAW & JUSTICE
Majority Report: Do pass. Signed by 10 members: Representatives
Padden, Chairman; Delvin, Vice Chairman; Hickel, Vice Chairman;
Campbell; Carrell; Lambert; McMahan; Robertson; Sheahan and Smith.
Minority Report: Do not pass. Signed by 7 members: Representatives
Appelwick, Ranking Minority Member; Costa, Assistant Ranking Minority
Member; Chappell; Cody; Morris; Thibaudeau and Veloria.
Staff: Pat Shelledy (786-7149).
Summary of Bill: When a couple enters into a marriage contract, the
couple may contract to restrict the grounds upon which a divorce may be
granted. If the couple agrees to restrict divorce, they may do so upon
the following grounds:
(a) Adultery;
(b) Infection with a sexually transmitted disease when the spouse
seeking the divorce did not know at the time of marriage that the other
spouse was infected, or the other spouse acquired the disease after
marriage from someone other than the spouse petitioning for divorce;
(c) Infection with a fatal disease when the spouse seeking the divorce
did not know at the time of marriage that the other spouse was infected
with the disease;
(d) Abandonment by the other spouse for one or more years preceding
filing;
(e) Habitual addiction to alcohol or drugs;
(f) Failure to provide financially for the family upon terms
established in the contract;
(g) Imprisonment for two or more years;
(h) Physical abuse, extreme mental cruelty, or sexual abuse;
(i) Legal insanity; or
(j) Mutual consent of both parties.
Common law equitable principles may be raised as defenses to the
action.
The contract may provide for remedies for violation of the contract,
including damages, specific enforcement, and divorce or separation.
A decree of dissolution that does not conform to the marriage contract
will have no force or effect.
A marriage contract that limits the availability of divorce to only
those reasonable grounds specified in the contract must contain an
express waiver of the right to obtain a divorce because the marriage is
"irretrievably broken."
When obtaining a divorce, the petitioner must allege the grounds for
divorce under the contract. A divorce will be granted if the other
party does not deny the alleged grounds or if the court finds that the
alleged grounds exist.
The restrictions also apply to legal separations.
Appropriation: None.
Testimony For: No fault divorce has been a disaster for couples,
particularly for children of divorcing parents. The state should not
interfere with a couple's desire to enter into a contract to preserve a
marriage in absence of specified grounds for divorce. The family unit
requires support and protection.
Testimony Against: Requiring grounds to obtain a divorce will not stop
parties who do not want to remain married. Instead, divorces will be
more protracted and bitter, and attempts to establish grounds for
divorce will increase.
Testified: Conrad Green, citizen (pro); and Charles Snyder, Superior
Court Judges Association (con).
Skip to text of legislation
HOUSE BILL REPORT
HB 1403
As Reported By House Committee on:
Judiciary
Title: An act relating to written marriage contracts.
Brief Description: Creating a written marriage contract that allows
dissolution only on a showing of fault by one party.
Sponsor(s): Representatives Padden, Hochstatter, Hargrove, D. Sommers
and Morton.
Brief History:
Reported by House Committee on:
Judiciary, March 5, 1991, DP.
HOUSE COMMITTEE ON
JUDICIARY
Majority Report: Do pass. Signed by 10 members: Representatives
Padden, Ranking Minority Member; Paris, Assistant Ranking Minority
Member; Broback; Forner; Hargrove; Mielke; Scott; D. Sommers; Tate; and
Vance.
Minority Report: Do not pass. Signed by 7 members: Representatives
Appelwick, Chair; Belcher; Inslee; Locke; R. Meyers; H. Myers; and
Wineberry.
Staff: Pat Shelledy (786-7149).
Summary of Bill: Parties to a marriage, either before or after the
marriage, may enter into a written marriage contract providing that the
marriage may not be dissolved except by mutual consent or by the fault
of one of the parties. The party must prove the fault of the other
party by a preponderance of the evidence. What constitutes "fault"
must
be specified in the marriage contract and must not be contrary to public
policy. The marriage contract must be the exclusive agreement between
the parties governing the terms of the marriage contract. If the
parties do not contract for a "fault" divorce, the current law
governing
"no-fault" divorce will govern.
The petitioner may petition for dissolution of the marriage due to the
fault of the other party if, in general, the petitioner files the
petition within two years of the discovery of the fault and the
petitioner does not ratify the marriage by continuing to live with the
party at fault. The petitioner may file when the party at fault:
(1) Obtained consent to the marriage by force, duress, or fraud;
(2) Married the petitioner when the petitioner was incapable of
consenting to the marriage because of physical or mental incompetence;
(3) Married the petitioner when the petitioner was under age 17 and the
petitioner did not live with the party at fault after turning 17;
(4) Commits adultery;
(5) Is impotent;
(6) Is infected with a sexually transmitted disease and the petitioner
did not transmit the disease to the party at fault;
(7) Is infected with another fatal disease, another contagious,
infectious, or communicable disease named in chapters 248-100 and
248-101 WAC;
(8) Has abandoned the relationship or disappeared for one or more
years;
(9) Has a habitual and ongoing addiction to alcohol or drugs;
(10) Continuously neglects or refuses to support the family in the
proportionate share of responsibility for the family as determined in
the contract or, if the party at fault is the husband, if the husband
continuously neglects or refuses to make reasonable provision for the
basic needs of his family, and no reasonable expectation exists that the
neglect or refusal will cease. The two-year limitation does not apply
to this provision;
(11) Has been imprisoned for two or more years and is still imprisoned
when the petition is filed;
(12) Continuously treats the petitioner or a minor child residing in
the home with physical abuse or extreme mental cruelty, or a child with
sexual abuse, and there is no reasonable expectation that the abuse will
cease. The two- year limitation does not apply to this provision; or
(13) Is legally insane.
The parties to the contract must acknowledge that in the absence of a
written contract to the contrary either party may obtain a divorce on
the grounds that the marriage is irretrievably broken. The contract
must state that the parties give up that right and agree to be bound
solely by the terms of the contract. A statutory format for the
acknowledgement and agreement is provided.
The parties have a right to a jury trial if the responding party
contests the petition and denies the allegations of fault.
Following a jury determination that the marriage should be dissolved
the court must determine issues of property division, child custody,
child visitation, and maintenance without submission of those issues to
the jury.
Testimony For: The incident of divorce has reached crisis
proportions. The negative consequences of divorce, especially for
children, are profound and long-lasting. "No-fault" divorce contributes
to the divorce rate because obtaining a divorce is so easy. This bill
will help curb the divorce rate by allowing couples to agree to remain
married unless certain specific problems arise and persist of sufficient
concern to warrant divorce.
Testimony Against: No-fault divorce is not the cause of the high
divorce rate nor the negative consequences of divorce. Restoring
"fault" divorce will not curb the divorce rate nor cure the societal
problems resulting from divorce. Rather, it will aggravate the divorce
process by the parties' efforts to prove fault, which will increase the
animosity between the parties and lead to increased litigation costs.
Rather than focus on making it more difficult to end a bad marriage,
efforts should be directed at requiring parties to prepare for marriage
before they get married.
Witnesses: Representative Padden, prime sponsor; Bryce Christensen,
The Rockford Institute (pro); Scott Staley, Council for Responsible
Government (pro); Judge Michael Donahue, Superior Court Judges
Association (con); Bob Hoyden, Parents Opposed to Punitive Support (pro
because parties get to choose); Lonnie Johns Brown, National
Organization of Women (con); Anne Simons, Washington Women United (con);
Conrad Green, citizen/lawyer (pro); Father John Pin
HOUSE BILL 1711
_______________________________________________
State of Washington 54th Legislature 1995 Regular Session
By Representatives Padden, Backlund and McMahan
Read first time 02/06/95. Referred to Committee on Law & Justice.
AN ACT Relating to written marriage contracts; amending RCW 26.09.030;
reenacting and amending RCW 26.09.020 and 26.09.150; and adding a new
section to chapter 26.04 RCW.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. A new section is added to chapter 26.04 RCW to
read as follows:
(1) The marriage contact entered into pursuant to this chapter may be a
written marriage contract, entered either prior to or after the marriage
is duly and lawfully solemnized, which may provide that the marital
relationship of the husband and wife shall only be dissolved upon a
finding by the court, established by a preponderance of the evidence,
that reasonable grounds for dissolution of the marriage have been
proven. Reasonable grounds for dissolution of the marriage in such
contract may include the following:
(a) The commission of adultery by the other party;
(b) The other party was infected with a sexually transmitted disease
not known to the spouse filing the petition for dissolution of marriage,
at the time the marriage was solemnized, or which disease is contracted
by the other party after the marriage from other than the spouse filing
the petition for dissolution of marriage;
(c) The other party was infected at the time the marriage was
solemnized with a fatal disease not known to the spouse filing the
petition for dissolution of marriage;
(d) The spouse filing the petition for dissolution of marriage or legal
separation has been abandoned by the other spouse for one or more years
preceding the filing of the petition;
(e) The other party is habitually addicted to alcohol or drugs;
(f) Failure, neglect, or refusal of the other party to provide for the
party's family to the extent such agreement was set forth in the written
marriage contract;
(g) Imprisonment of the other party in a state, federal, or foreign
prison for two or more years, during which the petition for dissolution
of marriage or legal separation is filed;
(h) Treatment of the petitioning spouse, or a family member residing in
the home of the parties, by the other party, in a manner which
constitutes physical abuse, extreme mental cruelty, or sexual abuse;
(i) Determination that the other party is legally insane; or
(j) Mutual consent of both parties, voluntarily, knowingly, and freely
given, to the entry of a decree of dissolution of marriage.
(2) Common law equitable principles, including, but not limited to
condonation, the clean hands doctrine, or other equitable principles
apply to dissolution actions based on allegations of grounds.
Affirmative defenses may be asserted as defenses to allegations of
grounds. A written marriage contact may provide remedies for violation
including damages, specific enforcement, dissolution of marriage, or
legal separation.
(3) The written marriage contract shall be interpreted according to and
pursuant to the laws of the state of Washington which shall apply to all
such contracts. The state of Washington shall retain jurisdiction over
all marriage contracts entered pursuant to the authorization of this
chapter. A decree or order of dissolution of marriage, divorce, legal
separation, or declaration concerning the validity of the marriage,
which does not conform to the marriage contract and the laws of the
state of Washington, shall have no force nor effect.
(4) A marriage contract that limits the availability of a decree of
dissolution of marriage to only those reasonable grounds for dissolution
of marriage enumerated in the written marriage contract shall contain an
express waiver of the availability of all other statutory or contractual
bases for the award of a decree of dissolution of marriage in a form
substantially as follows:
WAIVER
I understand that, pursuant to the laws of the state of Washington,
married persons may obtain a dissolution of their marriage only by
claiming that the parties' marriage is "irretrievably broken."
I
understand that most, if not all, states in the United States may have
similar laws permitting divorce or dissolution of marriage without
requiring the proof of any reasonable grounds for divorce or dissolution
of marriage.
By signing this written marriage contract, I knowingly and voluntarily
waive any right to a divorce or dissolution of my marriage by any and
all other statutory rights and provisions and specifically limit the
availability of divorce or dissolution of marriage to only those
specific reasonable grounds for divorce or dissolution of marriage which
are herein enumerated.
If you want to help out with the cost of providing this information,
contributions to Americans for Divorce Reform
would be appreciated.
Return to Divorce Reform Page
Return to Favorite quotes on divorce reform
Return to Americans for Divorce Reform