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A Catholic look at pre-nuptial agreements

February 18, 2014

Catholic discussion of “pre-nuptial agreements” (pre-nups) might be assisted by the following observations.

First, although the Church’s position in regard to civil divorce is often presented as one of (a) total opposition (b) to divorce per se, neither perception is accurate.

The Church does not oppose divorce under all circumstances. See CCC 2383 allowing for civil divorce to protect “certain legal rights, the care of children, or the protection of inheritance [!]” or Canons 1143-1146 whereby civil divorce generally satisfies one prerequisite to the invocation of the Pauline Privilege, namely, “departure” of the other spouse.

Divorce per se (even if one is the ‘moving party’ behind the divorce) carries no canonical consequences in terms of participating in the sacraments, etc. Sacramental consequences are not visited upon divorced persons per se, but rather, upon divorced persons who unilaterally attempt a later marriage.

Catholics who attempt marriage while, for example, impeded from doing so, but who, Deus laudetur, come to their spiritual senses and wish to repudiate that ‘marriage’ need a civil mechanism by which their repentance can be given civil effect as well as canonical. Divorce is the only way that can happen.

Second, most of the modern Catholic rite of marriage is a pre-nuptial agreement.

To actually marry, one party need only say “I take you as my husband/wife” to which the other party says “I take you as my wife/husband”. Assuming canonical capacity and the observance of canonical form, consent so exchanged suffices for marriage. 1983 CIC 1057 § 1. The rest of the lovely wedding rite (recitals of love and honor, in good times and in bad, etc.) are mutual promises made before, or at least contemporaneously with, the exchange of that consent which alone makes the marriage. The violation of these promises by either or both parties, though gravely sinful, does not void the marriage because marriage arises from mutual consent to marriage, not from mutual promises of “love”, “honor”, and so on. Moreover, not too long ago, non-Catholics marrying Catholics were required, in advance of the wedding, to promise to raise the children as Catholics (1917 CIC 1061). Such a pre-wedding commitment was by any definition a pre-nuptial agreement.

What about the promise of fidelity made while promising love and obedience? Even that does not defeat my characterization of most of the marriage rite as a pre-nuptial agreement for two reasons: First, because fidelity is constitutive of marriage itself, one cannot marry if, while attempting to marry, one harbors a positive intention contrary to fidelity (1983 CIC 1056 and 1101 § 2); but, for better or worse (no pun intended), one can marry without intending to “love” or “honor” one’s spouse. Second, the violation of a sincerely-offered promise of fidelity, though gravely sinful, does not invalidate the marriage, as is well known.

Third, and most importantly, a pre-nuptial agreement is a kind of contract. Now because the morality of any contract depends on its terms, and not on how the document is labelled, the morality of a pre-nuptial agreement depends on what it says and not on what it is called.

One can, of course, easily imagine terms in pre-nuptial agreements that violate Church teaching on marriage. For all I know, these represent the great majority of pre-nups now in force. Such documents cannot in good conscience be signed. But one can also, I suggest, imagine terms in a pre-nup that are wholly consistent with, nay even supportive of, Church teaching on marriage. Indeed, one could construct a pre-nup that is deliberately counter-cultural and, even if parts of it came into play only in the face of divorce (which an unwilling party cannot prevent anyway), would discourage civil divorce undertaken in disregard of Christ’s teaching on marriage.

In short, the Church’s opposition to divorce is more nuanced than most people realize, the Church herself has made and still makes use of pre-nuptial agreements (though under different titles), and, like any contract ,the morality of a pre-nuptial agreement eventually comes down to its terms, not its literary form.

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