By Jenna Marie Cooper
Q: A friend is in a relationship where his fiancé won't sign a prenuptial agreement because she thinks it would make the marriage invalid. It could be grounds for annulment. "For richer and for poorer," etc. What is the canonical opinion here? (Sydney, Australia)
A: Marriage is indissoluble, lasting until death, so a prenuptial agreement which contains provision for the division of assets in the event of a separation or divorce contradicts the vows spoken at the moment of consent. Professing to remain married until death and at the same time making plans for the division of assets if separated or divorced is not in accord with Church teaching. If the prenuptial agreement only addresses the division of assets upon the death of one or both spouses, that is not a problem. When we speak about a prenuptial agreement, generally we're talking about a secular-civil-law agreement made prior to a marriage – one that details how the individual spouses' resources are to be shared or not shared. Although laws can vary slightly within the United States, for the most part the presumption is that the spouses combine their resources upon marrying; meaning – if the parties were to divorce – one spouse might be legally entitled to property that originally belonged entirely to the other. In marriage, the two become one.
Since marriage is for life, obviously the Church does not recommend having a prenuptial agreement, which seems like a pre-plan for an eventual divorce. Other mechanisms exist to specify the handing-on of assets when one or both spouses die such as a will or trust.
Still, if a divorced couple with a prenuptial agreement were to present their case before a diocesan marriage tribunal, the exact terms and circumstances of the agreement can often be of great interest to the tribunal judges. Even if a prenuptial agreement is not a direct cause of nullity, it can be a symptom of a larger (and invalidating) problem within the union. In fact, having a prenuptial agreement which has a clause for the division of assets in the event of separation or divorce is not even necessary to possibly declare a marriage invalid on the grounds of Partial Simulation: Intention against Perpetuity; even having a deeply entrenched mindset before the marriage that it may be ended by divorce if one is unhappy may be sufficient as proof of nullity.
An example is the ground of partial simulation "contra bonum sacramenti," often translated into English as, "against the good of permanence." This describes a situation where one of the spouses, even if they outwardly promised a lifelong marital commitment at the altar, always intended to allow themselves the possibility of leaving the union (See can.1101, 1). Similarly, but less commonly, one or both spouses might have been genuinely mistaken about the fundamental nature of marriage as a permanent union, in such a way that they never intended to enter into an unbreakable life-long bond (can. 1099). A prenuptial agreement that was clearly intended to facilitate an easy civil divorce could be a convincing piece of supporting evidence for grounds such as these.
Additionally, it could also happen that someone might attempt to marry in a contingent way – for instance, by saying, "I will marry you, but for only as long as you remain fit and attractive;" or, "I will only consider myself married to you if we have a big family." In canon law, this is called "marriage subject to a future condition," and such attempted marriages are always invalid. (can. 1102, 1) If the future condition in question was spelled out in a civil prenuptial agreement, this would indeed be a very strong sign of the nullity of the marriage, though that is not required for this grounds of nullity.
Ultimately, just because something doesn't automatically make a potential marriage invalid doesn't mean it's the best thing for fostering a healthy marital relationship. If one party is proposing a prenuptial agreement and the other is uncomfortable with this, it's important for the priest to explain Church teaching about indissolubility to the couple so that they understand why they should not begin a marriage with plans for possible divorce.
- - -
Jenna Marie Cooper, who holds a licentiate in canon law, is a consecrated virgin and a canonist whose column appears weekly at OSV News. Send your questions to [email protected].