A prenuptial agreement is a contract signed by two parties, specifying how personal property will be divided after the marriage ends some people see it as their divorce insurance. And since the Catholic Church teaches that a sacramental marriage cannot be dissolved, never ends, then a prenuptial agreement is a denial of that truth–right?
“So they are no longer two, but one flesh. Therefore, what God has joined together, no human being must separate.”
So Catholics can’t sign a prenuptial agreement, right?
I stopped to ponder the question after reading a column in The Tablet, a Catholic newspaper in Britain, by the president of Vardag’s family law firm, Ayesha Vardag. Vardag, who is Catholic, assists couples in arranging pre-nups or post-nups, and she believes that in so doing, she is helping to strengthen and preserve marriage. She writes:
Does it make sense for the Church to thin its ranks by pushing away those who worship with the deep spirit of the faith albeit not the letter of its currently prevailing law? Pope Francis tells us it does not. I hope a groundswell gathers, behind him, of realism, compassion and inclusion and makes a place for all those who want to be at the table.
“Better a prenup than a fearful avoidance of marriage,” Vardag writes. She describes the tension between her identity as a Catholic who believes that marriage is indissoluble, and as a divorce attorney whose task it is to broker an exit when the marriage falls apart. “One divorce solicitor,” Vardag explained,
“…dealt with this tension by taking his clients to church to offer up their ring for the needy. We might say we don’t break the marriage, we just resolve what is already broken. But I have certainly had clients to whom, if I believed them to be cruelly treated, abused or in a state of unresolvable unhappiness, I have counselled exit. And I believe that to have been right.”
But is she right?
Or does a prenuptial agreement signal that the couple isn’t really making a promise “until death do us part” but instead are simply promising to love one another as long as the dinner is tasty and the sex is good?
For insight on that question, I sought the advice of canon lawyer Ed Peters, who teaches at Sacred Heart Major Seminary. On his blog “In the Light of the Law,” Dr. Peters makes three points which are essential to the understanding of premarital contracts:
1. The Catholic Church does not oppose divorce in all circumstances. In some cases, civil divorce may be necessary to protect “certain legal rights, the care of children, or the protection of inheritance.” A person who is divorced is still able to receive the Eucharist; only if the person subsequently remarries without first receiving a canonical annulment is he or she precluded from reception of the Sacraments.
2. The Catholic rite of marriage is actually a pre-nuptial agreement in itself. When one party says “I take you as my husband/wife” and the other party does the same, that nugget within the wedding ceremony is actually the contract. All the rest, Dr. Peters notes–the promise to cherish “in good times and in bad” and recitals of love and exchange of rings–those things are lovely mutual promises but are so much window dressing on the actual statement of contract contained within the ceremony. And the promise, still common today, by a non-Catholic spouse to permit any children from the marriage to be raised in the Catholic faith is another “pre-nuptial agreement.”
3. Most importantly, Dr. Peters explains, a pre-nuptial agreement is a kind of contract. The morality of any contract, he continues, depends on its terms–and likewise, the morality (or immorality) of any pre-nuptial agreement depends on what it says. Peters explains:
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.
You can read more, and find Dr. Peters’ careful references from the Catechism, here.
So is a pre-nuptial contract bad?
If, however, you are mouthing the words
“for better or worse, in sickness and in health, until death do us part”
but what you’re REALLY thinking is
“as long as she’s healthy and trim,
as long as he earns a good living and doesn’t drink too much,
and until someone better comes along…”
…then I have news for you: Your intent was duplicitous from the start; and without the intent of entering into a life-long union, the marriage is invalid.
Your loving-albeit-temporary relationship is an annulment just waiting to happen.
If, however, you do wish to proceed with getting a prenuptial agreement with a partner, you may want to do so through a solicitor experienced in family law: someone like peters and may.