Delving into the prenuptial-agreement issue a bit deeper - thoughts & advice welcome


#1

I have searched the internet and CAF pretty thoroughly on the topic, and I know the basic answer: for a Catholic marriage, a prenuptial agreement (excluding widows and widowers making a document to protect their children in the event of their own death) is verboten. My questioning has more to do with how we think of it in the light of the fact that in America, despite having contracted a Catholic marriage, any divorce can be done against our will in a civil court. I haven't seen this exact topic discussed anywhere, and I'm just curious.

I understand why the idea of any kind of prenuptial agreement regarding divorce is a logic fail regarding a Catholic marriage, so I'm not trying to rehash the Cathechistic reasoning. I understand that when we marry in the Catholic Church, we give ourselves over completely - lock, stock, and barrel. The Catholic Church does not believe in no-fault divorce; the Catholic Church does not believe that someone can be divorced against his or her will, and won't grant that kind of verdict. Amen to that. Would that when Catholics attempted to end their marriages, it was a matter only for Catholic tribunals.

But it's not. It's a matter for U.S. courts who famously do not recognize the form of Catholic marriage, and this is the sort of sticky reasoning I'm curious about.

Let's say that I'm a Catholic woman with many assets of her own acquired before marriage, committed to my marriage, and my husband one day walks out of the house and proceeds to divorce me in civil court. Well, in civil court he can do that and there's nothing I can do to stop him, but to me - as a Catholic woman - I will consider myself married for the rest of my life. (Church and state are separate, as we all know. The Catholic Church, of course, is happy - especially when it comes to marriage - to make that distinction.) Even though I consider myself spiritually married, there would be no material support for me any longer. I might consider myself a wife, but that wouldn't mean that the law would consider me a wife, and thus my husband could take a great deal of my money and leave me very badly off. I could believe that I deserve to not be abandoned in this manner - physically and financially - and the Church would of course believe as much as well, but that wouldn't translate into anything enforceable in the U.S.

The Catholic Church, I know, does not approve of prenuptial agreements because they presuppose divorce, and there is no divorce in the Catholic Church. But this ignores the fact that there is also a civil agreement being entered into which operates with different rules.

My question, I guess, is why it's spiritually wrong to create a document that deals purely with the civil contract that's also being entered. There is no way not to enter that civil contract, even if you think it's wrong - the Church in fact requires it for all marriages. I mean, if I'm getting married, it means I'm entering into two contracts: one Catholic, one civil, despite not agreeing entirely with the terms of the civil marriage - the prenup would be my way of altering that civil contract. Why would it affect my spiritual state if it's so contractually separate?

By the way, would there be an ethical way to make a prenup, e.g. it could state that if a Catholic tribunal annulled the marriage or approved separation, then this hypothetical wife's assets could be distributed, but if the husband in this case just walked out the door and pursued a civil divorce, then the prenuptial agreement would stand and the wife would keep her assets, as it would be under the aegis of civil courts?

(I'm not trying to pick a bone with the Catholic Church, which I love, and have chosen to obey fully! Please understand this. I am just genuinely very, very curious.)


#2

Where did you get the idea that all pre-nuptial agreements are forbidden? They are not forbidden, and i know of at least one Bishop that strongly recommended them, especially in the cases of two elderly people marrying, so that one sides family could NOT be "forgotten".

It would depend on how it was worded. Something along the lines of, "My spouse is to have the use of my estate while living, but upon his/her death, the estate is to be divided according to my last will and testament.

That way, the widow or widower is protected, but the estate itself goes to whomever you wanted it to go to. They get to use the assets for their own care, medical expenses, etc, but they can't leave it all to "their kids".


#3

If you read the other posts on this site, or Google the topic, in general it can be understood that the idea that a prenuptial agreement in the Catholic Church is either deeply frowned upon or, by some accounts, forbidden (the Diocese of Pittsburg is one such website that indicates that it will not allow two people to marry with a “prenup”).

I suppose I was also thinking of the topic as between two younger people without children, just as a point of discussion.


#4

The current culture of divorce is fed by prenuptial agreements. The Catholic Church is now the only major Christian denomination in the west that still holds to Jesus' teachings on divorce. What message does the Church send if it starts allowing pre-nups? What message to couples marrying in the church? Do your best to be married for life, but if it doesn't work out, you'll need one of these. How is that different to any other Christian denomination that has now abandoned Christ's teaching on divorce, or the rest of secular society?

The problem of people getting screwed over in divorce is terrible (and pre-nups are no sure way of overcoming this anyway), but I do not think we should begin to sow the seeds of divorce at the very start by allowing Catholic couples to enter pre-nups.

It seems to me that the logic in the argument here might be similar to the question of handing out condoms to combat AIDS. While the Church teaches fidelity and abstinence, surely condoms are a good backup when fidelity and abstinence fail? While I have some sympathy for people who hold this position, I still think the greater good is for the Church to teach the virtuous of fidelity/abstinence. In the same way, I think the greater good is served by the Church upholding the wonderful sacrament of marriage, without conceding the need for a backup, in this case pre-ups.


#5

I understand what you're saying, and I agree. My post was not an attempt, per se, to suggest that the church should "start allowing" pre-nups just willy nilly. I do believe that they contribute to the culture of divorce, and I do believe that divorce is wrong. My question is really more abstract and hypothetical and so forth.

My question, I'll just state again, was about how the Church and apologetics can reconcile the fact that they (almost always) require that those being married enter into not one but two contracts: a) civil and b) Catholic, but make it impossible to alter the civil contract, even though on the other hand the civil contract should have no bearing on the marriage.


#6

I understand what you're saying, and I agree. My post was not an attempt, per se, to suggest that the church should "start allowing" pre-nups just willy nilly. I do believe that they contribute to the culture of divorce, and I do believe that divorce is wrong. My question is really more abstract and hypothetical and so forth.

My question, I'll just state again, was about how the Church and apologetics can reconcile the fact that they (almost always) require that those being married enter into not one but two contracts: a) civil and b) Catholic, but make it impossible to alter the civil contract, even though on the other hand the civil contract should have no bearing on the marriage.


#7

Take a look at this website: marysadvocates.org Bai has been to court with the argument that when you are married in the Catholic Church, it is the Catholic Church's canon law court that resolves the disputes in the marriage, long before before either spouse can turn to the civil courts. Getting married in the Catholic Church is, in effect, a prenuptial agreement stating that the Church will be the arbiter of marital disputes.

If couples knew that, I wonder if they would see the Church as more than just a pretty building to have a wedding in.


#8

Interesting. I have never considered the CC's stand on prenups, because in Australia they are not valid anyway (as far as I know). So I did a quick search, and it seems the CC doesn't approve of them, except in circumstances where the prenuptial agreement is designed to protect a third party, such as children of a previous marriage or elderly parents.

This makes sense to me. If you decide to marry, you are joining yourself to your new spouse, as one person. If, God forbid, a divorce happens that you didn't want, there is definitely a possibility that you will have to share the marital possessions in whatever way the court decides, and therefore not equal to what each person brought to the marriage. What went before the marriage is past history, before you united yourself with another person, so if you brought considerable wealth in, while your spouse didn't, that is irrelevant at the time of the breakup.

None of this takes into account the fairness of a court's decision, but that's above my head. I think it just highlights the gravity of the decision to marry. You really should not take it lightly.

There are many other things in life that are not fair. We cannot control these things - all we can do is live our best life in the midst of the carnage, and ultimately get to Heaven, dragging as many people with us as we can. If your spouse leaves you high and dry, it's terrible, and not what God designed, but a pre-nup seems to me like wrapping yourself in bubble-wrap in case you get hit by a car. It could happen, it shouldn't happen, the precaution will cause you difficulty (in the case of the prenup, the difficulty is entering a marriage with a failure clause).

My two cents.


#9

Just to throw a new wrinkle in: my best friend's grandfather recently divorced (legally) his wife, but neither one considered themselves divorced in the Catholic sense.

How can this be? Both were elderly, and she was ill. As state law has it, both spouses have to run through their assets before Medicaid will begin to help with the health care. This would leave the living spouse a completely destitute elderly person. If the only way for him to save his wife and make the end of her life comfortable was to give every penny, this man would have, but it was not the only way. Both of sound mind, they signed a post-nup (same as a prenup), and then divorced (in civil court). She was then technically destitute, and was cared for in the same nursing home, in the same room, by Medicare.

Neither one in the couple considered themselves "divorced." They said that it was just a legal document that once came with benefits that no longer benefitted them and had nothing to do with their Catholic sacrament. What they did was not illegal. It makes sense to me.

It does make me think, too. Is there ever a time, especially regarding extremely expensive health care, when it's all right to void a civil contract that you never even wanted in the first place? And if so, then a prenup would make sense (because it would protect assets for the whole family if one had to divorce in the legal sense only - to void only the civil contract, not the holy sacrament in order to get help with a serious illness or in the event that one spouse was sued for, for instance, a bad car accident he caused above and beyond what insurance covered). With a prenup, the state or the entity suing would not be able to get at the other spouse's assets, and this spouse - obviously not considering him or herself divorced in any real sense except for a piece of paper - would be able to keep the whole family afloat.

My fiance and I were talking about this outside of the context of prenups, and we just find it so fascinating that on one hand, the contractual civil marriage means nothing spiritually or to the Church, and on the other hand, it's a requirement (we understand that it's U.S. law and that the Church is not in the business of flouting the law unless it's unjust). It's just such a logic rabbit-hole. (Again, I LOVE the Catholic Church, and I submit entirely to her wisdom and guidance. Any complaints are levied against the government for poking its nose in my sacramental marriage).


#10

[quote="BrickRoux, post:1, topic:234065"]
My question, I guess, is why it's spiritually wrong to create a document that deals purely with the civil contract that's also being entered. There is no way not to enter that civil contract, even if you think it's wrong - the Church in fact requires it for all marriages. I mean, if I'm getting married, it means I'm entering into two contracts: one Catholic, one civil, despite not agreeing entirely with the terms of the civil marriage - the prenup would be my way of altering that civil contract. Why would it affect my spiritual state if it's so contractually separate?

[/quote]

It does not deal solely with the civil contract. You cannot separate the two. When you exchange your vows you either give valid consent and have valid intent or you don't. Setting up a prenuptial agreement that divides assets in a divorce indicates you do not have valid intent as you already consider divorce a means of ending the marriage should things not "work out."

[quote="BrickRoux, post:1, topic:234065"]
By the way, would there be an ethical way to make a prenup, e.g. it could state that if a Catholic tribunal annulled the marriage or approved separation, then this hypothetical wife's assets could be distributed, but if the husband in this case just walked out the door and pursued a civil divorce, then the prenuptial agreement would stand and the wife would keep her assets, as it would be under the aegis of civil courts?

[/quote]

I doubt it. But, this would be a question for a canon lawyer.

You seem to view the civil and Catholic components of marriage separately, but they are not separate. A Catholic takes one marriag vow. The two become one flesh. Their assets become one also. The idea of keeping assets separate "in case" really calls into question the validity of your consent and intent.


#11

[quote="BrickRoux, post:5, topic:234065"]
My question, I'll just state again, was about how the Church and apologetics can reconcile the fact that they (almost always) require that those being married enter into not one but two contracts: a) civil and b) Catholic, but make it impossible to alter the civil contract, even though on the other hand the civil contract should have no bearing on the marriage.

[/quote]

It's not two contracts. That is where you're thinking has gone off the tracks. It's one.


#12

I wonder, is there an official Church document condemning prenups, meaning that I as a Catholic am obligated to stand against prenups. Or, to the contrary, is it a case of those controversial matters on which no definitive teaching was issued, meaning that we Catholics may favor prenups without becoming disobedient to the Magisterium?

If I'm not free to form my own opinion, I will of course submit myself to the teaching of the Church. But if there's no obligatory magisterial teaching on the issue, I think I will favor the idea of having a prenup. I'm practically convinced my cheating scheming gold-digger father would have never married my mother had she insisted on a prenup. Thus, she would have escaped being tricked into an invalid marriage by someone who had no intent to marry her for better or worse, and to stay faithful to her.

On second thought, though, where would I be if my father never married my mother? :hmmm: :D


#13

BrickRoux,

I'll take a different tack. The solution to this is the elimination of no-fault divorces, not the church modifying their stance on pre-nups. The problem is that in many states in the US, an individual can betray their marriage- commit adultery etc.-- and then expect to be treated legally as if they had fulfilled all their obligations. That is, the lower income spouse in a no fault divorce is legally entitled to being 'supported in the lifestyle to which they had become accustomed" in most states. Makes sense if they upheld all their vows and were betrayed by the higher income spouse. But,if the lower income spouse commits adultery and want to end the marriage, they still get the support of being married. The innocent spouse is held to upholding the financial burdens of the marriage while receiving none of the benefits.

Would be interesting if the lower income still had to provide 'marital' benefits to the other spouse because it had become "part of the lifestyle to which they had become accustomed".


#14

In most states, the spouse with the assets gained before the marriage is fully entitled to keep them, if there is documentation that those assets did exist before the marriage. So, if I come into a marriage with a large trust fund in my name, if my husband and I got a divorce, he would have no rights to that trust fund whatsoever. Assets gained during the marriage, however, are fair game for community property.

It is advised legally that if either or both spouses come into a marriage with children from another marriage, that they do have some sort of pre-nuptial agreement so that their children may be provided for in the case of another divorce or death. Now, the spouse without the trust fund can always TRY to get possession of it, but the law is one the side of the spouse with previous assets keeping that money.

That is the ONLY instance in which a pre-nup is at all advisable. I have even heard lawyers say that.


#15

[quote="styrgwillidar, post:13, topic:234065"]
BrickRoux,

I'll take a different tack. The solution to this is the elimination of no-fault divorces, not the church modifying their stance on pre-nups. The problem is that in many states in the US, an individual can betray their marriage- commit adultery etc.-- and then expect to be treated legally as if they had fulfilled all their obligations. That is, the lower income spouse in a no fault divorce is legally entitled to being 'supported in the lifestyle to which they had become accustomed" in most states. Makes sense if they upheld all their vows and were betrayed by the higher income spouse. But,if the lower income spouse commits adultery and want to end the marriage, they still get the support of being married. The innocent spouse is held to upholding the financial burdens of the marriage while receiving none of the benefits.

Would be interesting if the lower income still had to provide 'marital' benefits to the other spouse because it had become "part of the lifestyle to which they had become accustomed".

[/quote]

Oooh. I think this is really well thought out. I never really thought of civil marriage as a contract between two people. That makes perfect sense, and there are promises made that ought to be fulfilled by both parties of the contract. Therefore a no-fault divorce is wrong, because it assumes there are no obligations to fulfill the terms of the contract.

I love it!


#16

Well.... this whole discussion has brough up another question in my mind. If a woman with money marries a man wihtout money (not trying to get a sexist argument going just trying to give an example) and they divorce, the assets are divided.

But what if the marriages is annulled? Then are the assets still divided or is there different consideration because how can someone say 'My spouse owes me my share of the family assets' if they were never a married couple to start with????

Also, it seems unfair to me that a person could rack up a lot of debt, divorce their spouse and then only have to pay half and stiff their innocent spouse with the rest. That is so cruel!

Are their really no exceptions in the Catholic church?

CM


#17

[quote="TheRealJuliane, post:14, topic:234065"]
In most states, the spouse with the assets gained before the marriage is fully entitled to keep them, if there is documentation that those assets did exist before the marriage. So, if I come into a marriage with a large trust fund in my name, if my husband and I got a divorce, he would have no rights to that trust fund whatsoever. Assets gained during the marriage, however, are fair game for community property.

It is advised legally that if either or both spouses come into a marriage with children from another marriage, that they do have some sort of pre-nuptial agreement so that their children may be provided for in the case of another divorce or death. Now, the spouse without the trust fund can always TRY to get possession of it, but the law is one the side of the spouse with previous assets keeping that money.

That is the ONLY instance in which a pre-nup is at all advisable. I have even heard lawyers say that.

[/quote]

Also keep in mind that laws in a state passed after the prenup is signed can negate it.

[quote="cmscms, post:16, topic:234065"]
Also, it seems unfair to me that a person could rack up a lot of debt, divorce their spouse and then only have to pay half and stiff their innocent spouse with the rest. That is so cruel!

[/quote]

Basically, that is what my step-dad did to my mom. To the tune of over $300,000.00 dollars. He basically ran up business debts on several personal credit cards. Unfortunaly, anything that could not be proven to be strictly business became marital debt in the marriage. Same with the house even though my mom made all the payments, it was still a marital asset.

Since it was a second marriage there were prenups, but the laws of our state changed and negated part of the prenups.

I think if you are older with kids from a previous marriage they are a good idea. For first time marriages I think you should go in intending to unite your lifes fully.


#18

Of course there are no 100% guarantees, because people can and do change, both for the better and for the worse (addictions, adultery, abuse, etc.), but this is yet another reason to date/court with an intention to discern marriage. You need to see how the person handles their finances as well as how they can be trusted with various levels of responsibility.


#19

[quote="BrickRoux, post:1, topic:234065"]

By the way, would there be an ethical way to make a prenup, e.g. it could state that if a Catholic tribunal annulled the marriage or approved separation, then this hypothetical wife's assets could be distributed, but if the husband in this case just walked out the door and pursued a civil divorce, then the prenuptial agreement would stand and the wife would keep her assets, as it would be under the aegis of civil courts?

(I'm not trying to pick a bone with the Catholic Church, which I love, and have chosen to obey fully! Please understand this. I am just genuinely very, very curious.)

[/quote]

The way it's worded makes the difference. You're not allowed to make conditions on the future of the marriage. For example, you can't say something like, " in case of divorce or annullment yadda yadda". But you CAN say, " 'this particular asset' is the sole property of 'this person' and remains the sole property of 'this person', and does not become shared marital assets". In this way, if there is a divorce it won't be divided as part of shared marital assets, but will remain in the hands of the person who owns it.

You can also protect your assets by putting them in a trust, and in the trust spell out that the contents of the trust do not ever become marital property, but remain the sole property of the person named in the trust. You don't even need a prenup for that.

In the case of insurance policies, you can name specific beneficiaries.

There's always a way to protect yourself civilly. You just can't put conditions on the marriage's future. But you can write it so that the future of the marriage isn't a consideration in the prenup or even a trust.


#20

Thanks, all! This has made me think a whole lot!

1ke - In the U.S., it's easy for us to forget that there are actually two marriages going on. United States law (pokes its nose into churches and) requires that a person get a civil marriage license before performing a religious marriage. At the very moment when the couple becomes married in their house of worship, they also become married under U.S. law. The religious officiant will sign the civil marriage license to that effect. Because we don't see it, we don't realize it's two contracts at once.

I'm getting married in Vatican City (yay!) I have (by Vatican law, mind you) to get a separate civil ceremony beforehand, so I'm seeing firsthand that I'm actually entering into two philosophically different unions. This is true all over Europe, all over Latin America... They separate the two contracts into separate actual physical occurrences, so it's easier to wrap your mind around it. Nonetheless, it is two separate contracts wherever you are, even if they become valid in the same instant.

There is a part of me that's a little disappointed at the U.S. for requiring my church to in turn require me to sign a contract (my marriage license at city hall is contract indeed, because by signing it I'm saying "if I proceed with this marriage, I will abide by the marriage laws of this state or the state in which I reside"), the terms to which I don't morally agree (that my union can be dissolved by current state laws regarding no-fault divorce). But because it's not an unjust law, we have to render under Caesar, and so we do.

So ... Styrgwillidar ... you're totally right. I wish that people who could prove that their marriages were performed in the Catholic Church with full and lucid understanding of what that obligation meant could not have the option of no-fault divorces. Some states offer something called a "covenant marriage" - I wonder if that's similar. I think that a while ago, a woman actually sued to stop the no-fault divorce that her husband initiated in this manner, with her pre-Cana brochure as a piece of evidence! Alas. You know how that went.

TheRealJuliane - Thanks! That's actually quite helpful to know!

Rence - I think that's really wise, thanks for pointing it out.


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