Covenant Marriage and the Conflict of Laws

Abstract

Recently, three American stales introduced covenant marriage as a new form of marriage in response to the rising divorce rate. The author examines the three

distinguishing characteristics of covenant marriage that distinguish it from the current form of marriage offered in the United States and Canada. For the United States, the author canvasses the possibility of separating jurisdiction from choice of law. separating subject matter jurisdiction from personal jurisdiction, and recognition of the parties' intent, as three possible alternatives that non-covenant marriage states can utilize in order to respect the parties' intentions and the covenant marriage state's legislative intent. For Canada, the author canvasses the possibility that while Canada could take jurisdiction on the "ordinarily resident" basis, they may refuse jurisdiction on the basis of <i>forum non conveniens</i> or, alternatively, that they may apply the substantive law of the covenant marriage state on the basis that the Declaration of Intent signed by the parties represents an express choice of law clause.