Why is it wrong to sign a prenup before marriage?

[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.

[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.

 

[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.

[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. 

[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.

[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. 

[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?

[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.

[CatherineM]

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

[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)

[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. 

[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.

[little2add]

if you need a prenup, your doing it wrong 

[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.

[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.