If you think prenuptial agreements are only for the rich and famous, think again. A 2013 survey of the American Academy of Matrimonial Lawyers revealed that 63 percent of divorce attorneys say they’ve seen an increase in the number of prenups being contracted.
But these agreements, which define how assets will be divided in the event of divorce, are the antithesis of establishing a life together to last a lifetime.
This is why, for the Church, the phrase “until death do you part,” leaves no room for, “but if it doesn’t work out, I get the sports car.” The Church makes this clear both in the Catechism of the Catholic Church and within canon law. Canon 1102 states: “A marriage subject to a condition about the future cannot be contracted validly.” And according to the catechism: “The matrimonial covenant, by which a man and a woman establish between themselves a partnership of the whole of life, is by its nature ordered toward the good of the spouses and the procreation and education of offspring; this covenant between baptized persons has been raised by Christ the Lord to the dignity of a sacrament” (No. 1601).
Dr. Rick Fitzgibbons, director of the Institute for Marital Healing and co-author of “Helping Clients Forgive: An Empirical Guide for Resolving Anger and Restoring Hope” (APA, $39.95), has worked with several hundred couples over the past 34 years. Fitzgibbons identifies four reasons that prenuptial agreements are contrary to healthy marriages: First, they show a complete lack of understanding on the part of couples of the meaning of Catholic marriage, which includes the Church’s truth on sexuality in marriage as an antidote to many problems couples face. Second, they evidence a marriage rooted in selfishness. Third, they insert mistrust within a marriage and a fear that commitments will not last. Fourth, prenups lead to an unconscious sadness about marriage from seeing unhappiness in the marriages of others.
He explained that a healthy marriage emanates from God. “Marriage is total self-giving to the Lord and to one’s spouse with the movement from ‘me’ to ‘we,’” Fitzgibbons said.
Importance of preparation
Christian Meert, director of CatholicMarriagePrep.com, founded the apostolate in 2004 with his wife, Christine, to help engaged couples build strong marriages. Over 10, 000 couples have successfully completed the course. The Meerts also run the Office of Marriage and Family Life in the Diocese of Colorado Springs. Education, he said, is the key to preventing the conversation about prenuptial agreements from ever happening.
In the Light of the Law
Ed Peters, a canon lawyer who keeps the blog “In the Light of the Law,” pointed out that most of the modern Catholic rite of marriage doesn’t touch marriage at its core:
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 that consent 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 prenuptial agreement.
“Couples getting good marriage preparation would not want a prenup,” he said. “They would know that marriage is for life and there is no condition attached to it.”
Drawing up a prenup is looking at marriage with possibilities of disasters, Meert added.
“It is saying that divorce might be on the horizon so we need to protect ourselves,” he said. “That is not a good way to enter into marriage.”
Meert blamed a fear of suffering and risk as the motive behind such agreements. He said the thinking is that if there are problems, instead of working on them, people want an easy exit door.
“When couples have the right tools,” Meert said, “they understand exactly what marriage entails, and what each spouse commits to for life. They have to read, process and understand each and every word of the questions the priest or deacon will ask them before they exchange consent since the exchange of consents makes marriage.”
Hostile to Scripture
Michael Liffrig, senior counsel for First Court, a law firm that resolves injury lawsuits out-of-court, previously did mediation for over 15 years between divorcing couples.
According to Liffrig, the spirit behind a prenuptial agreement is hostile to Scripture’s ideal of the union of marriage.
“Christ says divorce is wrong,” he said. “A prenuptial agreement is a contract, really a modification of a civil marriage contract. The Church rejects the contractual vision of marriage. The sacrament of marriage is a covenant, which I keep regardless of the benefits I receive.”
There are, notably, some ways in which prenuptial agreements can be used validly as a Catholic marriage is planned.
Msgr. Ricardo Coronado-Arrascue, judicial vicar for the Diocese of Colorado Springs, explained that it is acceptable for a prenuptial agreement to be made for the purpose of ensuring that an asset will be used in a certain way during a marriage.
“An example would be: This property will go to support children in a poor country after our marriage, or my mother’s property that I will inherit will go to the Church,” he said. “Or say there is already a child out of wedlock, a person can say, ‘I want part of my property to go to my child whatever happens to me.’”
The point, Msgr. Coronado-Arrascue said, is that an agreement cannot propose a condition that is contrary to the nature of marriage, such as planning for an end to the relationship.
“If it does not affect the nature of marriage, you can make agreements,” he said.
If a couple were to enter into a prenuptial agreement that did affect the nature of marriage, that agreement could be used to prove, in the event of the application for a decree of nullity (an annulment), that the marriage was not valid to begin, Msgr. Coronado-Arrascue said.
“Marriage is either valid at the time of the ceremony, or it is not,” he said.
The Church believes so strongly in the damaging effects of prenuptial agreements, that it believes they have “no place in every human marriage” — whether they take place in a Catholic setting or not, Msgr. Coronado-Arrascue said.
“You are either married or not, and you cannot be validly married with a prenup agreement that is contrary to marriage,” he said.
(This article originally appeared in OSV Newsweekly and is reprinted with permission.)