…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.
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.
I didn’t care for the post on Catholic lawyers blog. It is full of legalize and rather confusing but the post by Edwards seems to equate the promise to marry someone to the normal understanding of what a pre-nupt is which is a defined legal contract that both parties sign which would set out how material assets are to be divided in case of a marriage brake up. One doesn’t enter a marriage signing a legal document on what to do is it doesn’t last. One enters marriage for their life time and should be committed to do so.
Hmm. It seems that he got tired of hearing “in all cases, the Church does not approve of divorce or pre-nuptial agreements.” So, he demonstrated cases in which divorce might be tenable, and stretching the point way too far, he took the commonly-understood term “pre-nup” and deconstructed it. Does the Church disapprove of all agreements made prior to marriage? No. Does it disapprove of “pre-nups”, as they’re typically understood these days? Yep…!
That’s not the entire case for prenups. For example, if I marry my boyfriend, we will likely have a prenup, not because of any sort of anticipation of a breakdown of the marriage, but because of my student loans and his pre-existing business. It’s protection for him from my debtors. Community property states consider student loan debt as becoming the debt of both upon marriage, without some sort of prenuptial agreement keeping it separate. Having/not having a prenup regarding student loans can affect your tax filing status and deductions. There are similar issues regarding his business.
That’s not to say that we won’t be sharing assets or tackling these issues together. But prenups are not inherently bad or intended to be used solely for the breakdown of the marriage. They are sometimes smart planning for persons bringing various assets and debts to the table, and who want to do their best to protect their spouse.
When older couples marry, a pre nuptial agreement makes sense, not from the standpoint of “When we divorce”, but from the standpoint of “When you die, or when I die”.
My dad died; my mother eventually remarried. His wife had died. They both wanted to be able to buy a house together. There were unequal assets; the pre nuptial set up a ratio of ownership of the new house (paid in cash). Additionally, he was to obtain an insurance policy for her benefit (which didn’t get done). He died; she had a right, based on the pre nuptial to remain in the home as long as she desired - known as a life estate.
None of that is contrary to Church law or policy. It was an agreement, coupled with wills, to determine the resolution of their estates upon death.
I don’t know all the legal issues but I would imagine the difference is most deeply felt in community property states. Without some kind of pre-nup a new spouse would automatically become a shared owner of property the other spouse had prior to the marriage. Thus, the spouse who held that property (prior to marriage) couldn’t just will it to a child from a previous marriage; it would require the new spouse’s permission.
My guess is that any will that existed prior to the wedding would become invalid (or at least subject to contest) at the time of the wedding.
Granted, such agreements can be made after the wedding but some people like handle such issues in advance.
The point is not that they might or might not have written a will before; it is that pre nuptial agreements are not necessarily reflective of an intent to divorce.
You could ask an attorney why wills are not written before marriages; this was what they were advised to do.
Practically, there could be any number of reasons to not write a will before a marriage, and there could be any number of reasons that a will might not be written after a marriage that had nothing to do with “bad intent”, that is, an intent not to honor any agreement before the marriage.
I thought that it isn’t that you don’t trust the person you are marrying to do the right thing after your death. Perhaps if there is an accident and one dies and the other is injured enough that he has to have someone else speak for him. That person might not do what the couple wanted.
But would it be possible to have a will all written and ready to go that is signed right after the wedding?
It appears you have never been in the situation. I am not sure why it would be important to you to not have a pre nuptial agreement.
I have been around for 68 years; and in that time I have witnessed untold numbers of people who, in all innocence, forget what exactly they agreed to or did not agree to. Add to that the influence of children, occasionally grandchildren, siblings, and outsiders and things have a tendency to get very messy.
Both parties, in entering a second marriage, are coming in almost always with different amounts of assets, different philosophies of how to handle money, very often with children and sometimes grandchildren.
In the specific circumstances, his daughter wanted her dad to marry someone else. Subsequent to the marriage, the daughter played all sorts of games until final (several years later and a whole lot of tears) my non-confrontational mother had a head-on confrontation from her. That finally cleared the air on that issue.
My mother was far more concerned that her (then to be future) husband make it clear to all parties (that is, his kids) that she was a) not marrying him for his money; and b) that she had far more respect for him than his children did, and for the relationship he had or should have with them. The latter was perhaps too subtle a message for them, but it was grounded in her concern that it be clear she had no intention of getting between him and them.
Subsequent to the marriage, one of his sons borrowed a significant amount of money to purchase a liquor store franchise. One would think that such franchise would be about a brainless opportunity to make a living, but the son managed to go bankrupt. It was not for no reason that my step dad asked me to be the personal representative of his will rather than one of his sons or his daughter. He was a great guy and a real sweetheart, but he was also subject to being easily manipulated, most particularly by his kids. Again, that was part of having a clear agreement right from the start.
Again, I have no idea why you seem to object to such a pre nuptial agreement. The Church does not object to it.
What would be the purpose of waiting? If one party wanted to set out the agreement, and the other didn’t, I would have more than just strong suspicions that the parties had not actually come together on an agreement. The agreement was in his favor, not my mother’s but it was her position that they needed one. I fully and totally supported her in that. Setting it out settles a whole bunch of issues that can come up later. It is not like a first marriage, where usually there is little or no significant financial difference between the two. For a first marriage, unless both parties were late in life, there would be no need for such an agreement. Later in life, when assets and liabilities may be very different between the parties, as well as differing inheritance issues with children, it may be critical to continuing peace in the extended family.
The author is encountering the typical problem that he usually encounters when writing something like this:
People who do not understand what he wrote take it upon themselves to criticize his writing, based not on what he wrote, but on their own misconceptions about what he wrote.
Catholics hear the term “pre-nuptial agreement” and automatically assume that it means what they see in the tabloids and the soap operas. They are then unwilling to look at the author’s actual words to understand what he’s saying because they have already decided that they know better than the expert.
I find this paragraph especially relevant:
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.
I hope that readers will actually read those words. “…the morality of any contract depends on its terms, and not on how the document is labelled.”
The problem with discussions here on CAF is that too many posters are more concerned about the “label” on the documents and not the substance of the documents.
The irony of this is that the author is attempting to “assist” the discussion about pre-nups, but because his writings are being misunderstood by those who do not understand the topic itself, it seems to have muddied rather than cleared the waters.