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polskieserce

Why is it wrong to sign a prenup before marriage?

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polskieserce    23
polskieserce

I've heard several Catholics say that if a couple has a prenup (concerning asset division in a divorce) that the marriage is invalid.  I understand that the Church wants people to stay married forever and not contribute to already high divorce rate.  However, why are prenups treated any different than seat-belts, fire escapes, and life insurance policies?

When I get behind the wheel of a car, I'm not thinking "Man, a drunk driver is going to hit me at 75mph".  I expect to have a safe drive, but I acknowledging that the risk exists and take a reasonable precaution to avoid it.  Everyone is entitled to their own opinion on this topic, but I personally don't think a couple with a prenup is already planning a divorce.  Instead, I see it as a couple taking a step to prevent divorce.  If one spouse is wealthier than the other, it reduces the incentive the poorer spouse would have to get divorced.  It can also clearly list the expectations that each spouse has for the other (ie who will pay student loans).  Finally, if the relationship does hit the fan, it naturally reduces the complexity of the legal case and places less of a strain on the legal system.

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Nihil Obstat    9,205
Nihil Obstat

A pre-nup does not in and of itself cause the invalidity of the marriage. Here is what Ed Peters wrote on the subject:

 

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 thatconsent 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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polskieserce    23
polskieserce
30 minutes ago, Nihil Obstat said:

A pre-nup does not in and of itself cause the invalidity of the marriage. Here is what Ed Peters wrote on the subject:

 

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 thatconsent 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.

 

I know the Church isn't against all kinds of prenups and there are numerous things that qualify as prenups.  But this question is specifically referring to divorce planning asset protection prenups.  Those most likely make up the lions share of all prenups.

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CatherineM    6,165
CatherineM

Getting a divorce isn't a mortal sin. So planning for it just in case isn't either. It's not the divorce that's the issue. It's the remarriage and having sex with someone who isn't your sacramental spouse. 

Personalky I hate the idea of them. I prefer people to enter marriage with the idea that divorce isn't an option, and that you are becoming one person. However, when it's two people with children from their first marriage, I insisted my clients do one. Had two from church get married that had lost their spouses. She'd been a widow for ten years, and him for just a year. Six kids between them. 

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Nihil Obstat    9,205
Nihil Obstat
1 hour ago, polskieserce said:

I know the Church isn't against all kinds of prenups and there are numerous things that qualify as prenups.  But this question is specifically referring to divorce planning asset protection prenups.  Those most likely make up the lions share of all prenups.

Yes, this was addressed in the article. The contract does not in and of itself invalidate the marriage.

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truthfinder    1,339
truthfinder

I'll have to read the Peter's article, but marriage contracts were standard in France and its colonies for hundreds of years.  They're a little different from prenups but essentially listed all that the bride and groom were bringing into the marriage and which would form their mutual goods. This was particularly important as Catherine states when they had previous children because the French law was particular in who got what in terms of precedence etc.  If these sorts of contracts were not allowed, the church would have caused a fuss about them a long time ago. 

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polskieserce    23
polskieserce

Just to clarify, let's say two people are about to get married and they have get a prenup that covers issues like:

  • what constitutes pre-marital property that can't be divided in a divorce
  • waiving inheritance rights
  • waiving spousal support waiver
  • how to divide dept should the relationship end

If the validity of the marriage was ever questioned before a Catholic tribunal, would this prenup be grounds for declaring the marriage invalid?

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Nihil Obstat    9,205
Nihil Obstat
58 minutes ago, polskieserce said:

Just to clarify, let's say two people are about to get married and they have get a prenup that covers issues like:

  • what constitutes pre-marital property that can't be divided in a divorce
  • waiving inheritance rights
  • waiving spousal support waiver
  • how to divide dept should the relationship end

If the validity of the marriage was ever questioned before a Catholic tribunal, would this prenup be grounds for declaring the marriage invalid?

It does not seem to me that such a contract would have any effect on the validity of the marriage.

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Maggyie    2,541
Maggyie

Or if it is the kind of prenup that penalizes having children (I have heard of them where if the wife gets pregnant she forfeits a percentage)

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CatherineM    6,165
CatherineM
4 hours ago, Maggyie said:

Or if it is the kind of prenup that penalizes having children (I have heard of them where if the wife gets pregnant she forfeits a percentage)

That would definitely be a no no. 

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Nihil Obstat    9,205
Nihil Obstat
6 hours ago, Maggyie said:

Or if it is the kind of prenup that penalizes having children (I have heard of them where if the wife gets pregnant she forfeits a percentage)

In such a case I would be willing to bet that the marriage could be found to be invalid, but an important distinction is that the marriage is not invalidated by the pre-nuptial contract, but rather the pre-nuptial contract provides evidence that openness to life was lacking at the time the putative marriage was entered into.

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polskieserce    23
polskieserce
On 6/6/2016 at 11:46 PM, CatherineM said:

Only problem I see would be if the inheritance rights deals with children born to the marriage. 

I was thinking along the lines of spousal inheritance, not child inheritance.

 

18 hours ago, Maggyie said:

Or if it is the kind of prenup that penalizes having children (I have heard of them where if the wife gets pregnant she forfeits a percentage)

Well for a Catholic marriage, I think the Church would really like to see strong provisions against abortion included in the agreement (ie, financial penalties for having one).  For two people who are 100% open life, this should be a non-issue.  However, objection to something like that could be a red flag that the woman isn't totally against abortion.

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CatherineM    6,165
CatherineM

I've only heard of one prenup that mentioned abortion. It was a guy who didn't want kids and wanted her to agree to have one if she got pregnant. Law school classmate had them as a client. He refused to draft it and lost the guy's business. I'd definitely have done the same. 

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IgnatiusofLoyola    1,192
IgnatiusofLoyola
20 hours ago, little2add said:

if you need a prenup, your doing it wrong 

I think that judgement is a little hasty, particularly, as mentioned in earlier posts, in cases where one or both of the spouses have children from a previous marriage. Also, for people with a lot more money than any Phatmassers I know, a prenup may be necessary to protect assets.

For example, I heard that Bill Gates (founder of Microsoft) did not want a prenup when he got married. However, in his case, he had billions of dollars of assets almost totally in Microsoft stock, as the majority owner of Microsoft. If Bill Gates had gotten divorced, possible changes in the ownership of company stock (which affects things like membership on the Board of Directors) could have caused doubts in the minds of shareholders and negatively affected the value of Microsoft stock. So Microsoft counsel told Bill Gates he needed a prenup to protect any harm to Microsoft (and its employees and shareholders) should he and his wife divorce. He grudgingly signed a prenup. Note: Bill and Melinda Gates are still married.

I am not an expert in contract law, so I am going to give members of a couple the benefit of the doubt in terms of having a prenup, unless I have seen the prenup and KNOW it contains clauses that contradict Catholic teachings on marriage.

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polskieserce    23
polskieserce
5 hours ago, CatherineM said:

I've only heard of one prenup that mentioned abortion. It was a guy who didn't want kids and wanted her to agree to have one if she got pregnant. Law school classmate had them as a client. He refused to draft it and lost the guy's business. I'd definitely have done the same. 

I can understand why you wouldn't do a prenup that mandates abortion if the woman gets pregnant.  But what if the prenup was against abortion (ie, major financial penalties for having an abortion)?

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Nihil Obstat    9,205
Nihil Obstat
23 minutes ago, polskieserce said:

I can understand why you wouldn't do a prenup that mandates abortion if the woman gets pregnant.  But what if the prenup was against abortion (ie, major financial penalties for having an abortion)?

Since a pre-nuptial contract is not inherently evil and does not in and of itself invalidate a putative marriage, as we established above, a contract with purely moral terms would not be objectionable.

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little2add    474
little2add

Placing conditions (prenup) on  a unconditional Union may or may not doom the partnership from the start.  

 If you can't  promise each other  loyalty and devotion in sickness and health,  richer or poorer, togetherness  until death do you part, you  probably shouldn't get married in church  or anywhere else for that matter,  as far as I'm concerned 

 Seems to me a prenup is a plan for failure, 

 

 

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tinytherese    1,073
tinytherese

It strikes me as a sign that you don't trust your future spouse, in which case you shouldn't marry them.

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