Marriage with a prenuptial agrement

[PUP]

There is a post that says a marriage with a prenuptial agreement is invalid. What if the prenuptial terminates after 10 years and we are now married for 17 years? Or when we made a will the prenuptial agreement is basically overridden? Or what if you entered into a valid second marriage (first spouse dies) does canon law say you can not protect your children from the first marriage through a prenuptial?

 

[Corki]

First of all, the Church position is usually defense of the bond. That means that a marriage is presumed valid unless and until it is proven otherwise. (If at least one of the spouses was Catholic, correct form must have been observed to gain that presumption)

It’s not the case that a pre-nup “makes” a marriage invalid. IF a marriage comes before the marriage tribunal, a pre-nup can be used as evidence that the couple did not have the intent to form a permanent bond. Marriages don’t go to the tribunal unless there is a divorce and application to determine nullity.

What if the prenuptial terminates after 10 years and we are now married for 17 years?

Validity is determined by what conditions existed at the time of the marriage, not 10, 17 or 50 years later.

Or what if you entered into a valid second marriage (first spouse dies) does canon law say you can not protect your children from the first marriage through a prenuptial?

The presence of children does not change the expectation that both spouses should intend a permanent bond. The same “rules” apply for all marriages.

 

[Dee_Dee_King]

It’s not the case that a pre-nup “makes” a marriage invalid.

you are correct. an acceptable prenuptial agreements may protect the children from a previous marriage or decide how to allocate an estate after the death of a spouse. these wouldn’t necessarily invalidate a marriage. but in this case, a prenuptial agreement is being signed which discusses how property is to be split in the case of a divorce.

 

[Corki]

you are correct. an acceptable prenuptial agreements may protect the children from a previous marriage or decide how to allocate an estate after the death of a spouse. these wouldn’t necessarily invalidate a marriage. but in this case, a prenuptial agreement is being signed which discusses how property is to be split in the case of a divorce.

But it isn’t the pre-nup that invalidates the marriage. The pre-nup itself is neutral. It is simply evidence that the couple was already thinking about the possibility of the marriage being dissolved before they even wed. That frame of mind is what would make the marriage invalid.

 

[Dee_Dee_King]

The pre-nup itself is neutral. It is simply evidence that the couple was already thinking about the possibility of the marriage being dissolved before they even wed.

i read somewhere that when the prenuptial agreement agrees with the vows made at the wedding, it’s legitimate. but when the prenuptial agreement contradicts the vows, such as the permanence and life giving nature of a catholic marriage, it would render them invalid. in this case, the assumption is there that the marriage may not be permanent.

the depressing thing is that this priest knows about this prenuptial agreement yet is still willing to marry them. he says this kind of prenuptial agreement is frowned upon, but not necessarily prohibitive, which is wrong. he stated that it happens all the time!?

their marriage then is invalid and doesn’t do anyone good.

 

[Rence]

There is a post that says a marriage with a prenuptial agreement is invalid. What if the prenuptial terminates after 10 years and we are now married for 17 years? Or when we made a will the prenuptial agreement is basically overridden? Or what if you entered into a valid second marriage (first spouse dies) does canon law say you can not protect your children from the first marriage through a prenuptial?

You would need to talk to a priest about the validity of your marriage. He’s the only one who can answer that question, or refer you to someone at the diocese who can answer your question. Prenups are allowed, but they have to be carefully written so that they don’t make conditions on the future. For example, it can’t say something like, “in case of divorce this happens with these particular assets”. It CAN say something like, “these particular assets remain the property of this particular spouse and not become marital shared property” or some such other wording. Prenups are very common, especially in the case of protecting your children from the first marriage, and even when property/assets are accumulated before the marriage. They just have to be worded in ways that are acceptable to the canon lawyer, and that’s the reality of it. Many traditional catholics don’t like them, and will tell you that they are forbidden, but that is false. The Church does frown upon them, however, they are not forbidden, they are allowed, and marriages are not invalid because of them. You just have to be sure they are acceptable and within the Church’s rules. For many people they are a necessary part of securing one’s future, and the future of one’s children.

You can also put your children’s (or your) assets in a trust, with an attached will, to keep them separate from a marriage.

I’d call the diocese and ask for someone’s help to determine if your marriage is valid, telling them that an expired prenup is involved, and then go from there.

 

[Rence]

But it isn’t the pre-nup that invalidates the marriage. The pre-nup itself is neutral. It is simply evidence that the couple was already thinking about the possibility of the marriage being dissolved before they even wed. That frame of mind is what would make the marriage invalid.

The prenup should be written to keep certain assets from becoming shared marital assets, keeping them the property of one or the other spouse. This doesn’t put conditions on the marriage, this only guarantees ownership of assets that belong to one or the other. This is not evidence that someone is anticipating the end of a marriage, unless the prenup separates out assets and says, ‘in the case of a divorce’ or other such wording.

For example, it is allowed to say that a piece of exmaple property remains the property of wife, even after marriage and does not become part of shared marital assets. Or, a certain inherited sum of money that was given to the husband, is the husband’s gift, and does not become part of marital shared property. Or that a piece of property is the property of the wife, to be inherited by a child XXX (or children XYZ) and remains so througout the marriage.

 

[Corki]

The prenup should be written to keep certain assets from becoming shared marital assets, keeping them the property of one or the other spouse. This doesn’t put conditions on the marriage, this only guarantees ownership of assets that belong to one or the other. This is not evidence that someone is anticipating the end of a marriage, unless the prenup separates out assets and says, ‘in the case of a divorce’ or other such wording.

For example, it is allowed to say that a piece of exmaple property remains the property of wife, even after marriage and does not become part of shared marital assets. Or, a certain inherited sum of money that was given to the husband, is the husband’s gift, and does not become part of marital shared property. Or that a piece of property is the property of the wife, to be inherited by a child XXX (or children XYZ) and remains so througout the marriage.

I am pretty sure there isn’t anything wrong with a pre-nup that stipulates inheritance since that presupposes that one spouse will have died before it “kicks in”.

Any pre-nup, no matter how carefully worded, that states or alludes to what would happen in a divorce is going to be brought up in an annulment investigation. It won’t be the only evidence but it is certainly important evidence.

The issue with a pre-nup isn’t that it puts conditions on the marriage, which would lead to invalidity but that it points to at least one party having a view of marriage that is impermanent.

It’s all moot unless there is a tribunal investigation for purposes of determining nullity. Once a marriage is celebrated, the presence of a pre-nup, even if it is one that wouldn’t pass muster with the diocese, isn’t going to cancel the marriage. It will only come up if one party files annulment paperwork.

 

[Dee_Dee_King]

Once a marriage is celebrated, the presence of a pre-nup, even if it is one that wouldn’t pass muster with the diocese, isn’t going to cancel the marriage. It will only come up if one party files annulment paperwork.

some dioceses require a cannon law review of prenuptial agreements. in any case, i don’t understand how property wouldn’t be shared in a marriage. if the catholic understanding of marriage is one of complete self giving, then this should naturally extend to money and property.

For example, it is allowed to say that a piece of exmaple property remains the property of wife, even after marriage and does not become part of shared marital assets.

sounds like legalism to me, which i guess it clearly is. just take out the word divorce and replace it with end and you have an acceptable prenuptial agreement!

 

[markomalley]

There is a post that says a marriage with a prenuptial agreement is invalid. What if the prenuptial terminates after 10 years and we are now married for 17 years? Or when we made a will the prenuptial agreement is basically overridden? Or what if you entered into a valid second marriage (first spouse dies) does canon law say you can not protect your children from the first marriage through a prenuptial?

Here’s my take on it. The Code of Canon Law pretty well covers the situation:

Can. 1056 The essential properties of marriage are unity and indissolubility

The word indissolubility is the key one here. Indissolubility means just that. A valid marriage cannot be dissolved. Period.

Can. 1096 §1. For matrimonial consent to exist, the contracting parties must be at least not ignorant that marriage is a permanent partnership between a man and a woman ordered to the procreation of offspring by means of some sexual cooperation.

Both parties must know that the marriage is indissoluble and is permanent before validly entering into marriage.

Can. 1101 §1. The internal consent of the mind is presumed to conform to the words and signs used in celebrating the marriage.

What this one means is if you take an action that is contrary to the definition of marriage, your thought process is assumed to work in accord with your words and actions.

Suggest that you look at the commentary on these canons, particularly 1101. See the New Commentary on the Code of Canon Law, particularly pp 1312 and 1313.

(NOTE: I am not a canon lawyer and my opinions should be taken in that light!!)

My take on it (my take as a non-lawyer) is that the execution of a prenuptial agreement implies that both parties deny that the bond formed is indissoluble. As such, the existence of such an agreement should mean that the marriage could not have been validly attempted. Children from a deceased spouse or not.

As far as determining if a marriage is valid or not, that is not the matter for any of us here to give a definitive opinion on. You should consult with a canon lawyer and or your diocesan tribunal for any kind of a definitive opinion. Unless CAF has a canon lawyer on staff or consults with one, I would not take the opinions of anybody here, to include the official staff apologists, as gospel. Canon Law is a very specialized field that requires years of training.

 

[Borealis]

My mother-in-law to-be gave my wife a pre-nup agreement as an engagement gift. I never even read it; I signed it under protest.

We had some early marital problems, but we took the Retrouvaille weekend course (which I highly recommend to any couple experiencing marital problems), and when we got home we agreed to burn the pre-nup in the backyard. Best decision we made since saying ‘I do.’

 

[Rence]

some dioceses require a cannon law review of prenuptial agreements. in any case, i don’t understand how property wouldn’t be shared in a marriage. if the catholic understanding of marriage is one of complete self giving, then this should naturally extend to money and property. sounds like legalism to me, which i guess it clearly is. just take out the word divorce and replace it with end and you have an acceptable prenuptial agreement!

That’s because you’re not looking at circumstances that are different that your own. For example: my grandparents bought a piece of property that they wanted to go to their grandson (my brother). It passed from my grandparents, to my mother, who made sure that her prenup indicated that that property was to remain outside of the marital shared assets. My brother could claim that property any time after a certain age, and therefore is not shared marital assets, despite the fact that my mom married. It has no business being shared marital assets.

My grandparents bought a family building. When my grandfather died, the house was transferred to my mom, who refinanced the mortgage with my grandmother. My grandmother still lived in one of the apartments (and I lived in one of the apartments) when my mom married her second husband, and moved into another apartment in the building. The prenup stated that that family building remained the sole property of my mother, and not to ever become shared marital assets…as it should be - because the house was a family building that my grandmother and I also lived in. It wasn’t to be shared marital assets.

On the flipside, the man my mom married owned a condo before they got married, and did not sell it after they got married. He had many kids and grandkids, one of whom would inherit the condo. The prenup stated that the condo remained his property, and never to be shared marital assets…and rightfully so because it was for one of his grandkids from a previous marriage.

That man had seven kids and over 23 grandkids. His stocks and other earnings were to be divided up among all those…so the prenup stipulated that anything in his trust (stocks, etc, that were earned before the marriage) would remain his sole property, and not shared marital property…as it should be, because his wishes were to leave all that to his kids and grandkids. He also left certain monies to my mom in a separate section. All this money need not be shared marital assets. Marriage is between two people, yes, but there are others involved when there are assets.

What was considered shared marital assets were also named in the prenup. It was separate from anything that wasn’t the sole property of one or the other, and what was going to be inherited by others.

There are many reasons why a piece of property would remain the sole property of one spouse, rather than shared marital assets. My farm, in the case of my death, is in a trust and attached to a will, would go to my mother and brother. If I get married, it will remain in trust, and will remain my property, with the intention of being left to my mother and/or brother. It will never be shared marital assets because of that, even if my future husband and I actually live in it.

You have to remember that people get married later now. Some even have assets that they have accumulated over time before they got married. It’s not necessarily written in stone that those assets automatically became shared assets of the marriage. Those assets might be meant to go somewhere else…like to siblings or kids.

 

[Rence]

Here’s my take on it. The Code of Canon Law pretty well covers the situation:

Can. 1056 The essential properties of marriage are unity and indissolubility

The word indissolubility is the key one here. Indissolubility means just that. A valid marriage cannot be dissolved. Period.

Actually there are two keys. I agree about the “indissolubility” part that you pointed out. But the other part is “properties of marriage”. Just because one gets married does not automatically make everything that person holds in ownership “property of marriage”, as pointed out in my previous post.

My take on it (my take as a non-lawyer) is that the execution of a prenuptial agreement implies that both parties deny that the bond formed is indissoluble. As such, the existence of such an agreement should mean that the marriage could not have been validly attempted. Children from a deceased spouse or not.

Children from a previous marriage deserve to have their interests protected. That is a parent’s responsibility. So I disagree that the children from a previous marriage are not to be considered, because they should. So should the parents of the married couple, and any siblings that share an interest in any assets acquired before the couple got married.

I certainly would not want the farm truck, which I bought with my brother, to automatically become shared marital assets when and if he ever got married. We bought that truck together, even though the truck is in his name. We paid for the cost, straight down the middle, and we alternate paying for the insurance. I would take issue if he would not protect my investment. He can either stipulate in a prenup that the truck is not shared marital property, and in fact, belongs to him and me – or he can sign over the pinkslip to me. The truck also belongs to me and someone else shouldn’t decide what to do, if anything, with that truck. It has nothing to do with the dissolubility of any future marriage. The shared asset should not be shared with a third party without my consent…that’s how it is with many assets acquired before a marriage.

Now…buying a home, in which the married couple will live, is shared marital assets. Buying a car when married, which both will use, is shared marital assets. But not every little thing is automatically the newspouse’s property.

Also, the terms of the prenup as I have discussed in the examples in my previous posts, apply throughout the entire marriage. It has nothing to with the “dissolution” of marriage. It is assumed the marriage will continue, and not end. That’s the difference between a prenup that conforms to the canon, and one that does not. The one that doesn’t conform to canon discusses “divorce”, “end”, “dissolution”, etc. There is no mention of these things in the approved prenup.

As far as determining if a marriage is valid or not, that is not the matter for any of us here to give a definitive opinion on. You should consult with a canon lawyer and or your diocesan tribunal for any kind of a definitive opinion. Unless CAF has a canon lawyer on staff or consults with one, I would not take the opinions of anybody here, to include the official staff apologists, as gospel. Canon Law is a very specialized field that requires years of training.

They absolutely should do that. And if, by some chance, the marriage is considered invalid, they can be helped to fix that.

 

[Elizabeth502]

Rence, I am not an expert in community property law. But it is my understanding, in states which do have community property laws as these relate to marriage (I live in one such State), the situation with your and your brother’s joint property would be protected in the case of a dissolution of marriage (or even death – such as if the husband’s side of the family were to claim the truck as part of some estate proceeds).

What is not joint property before marriage – what is acquired separately – remains separte ownership in the event of dissolution of the marriage through divorce, annulment, death. Of course, in the case of assets like cash, a spouse wanting to keep that separate would have to keep the account intact with no joint signatures, etc., after marriage, and no naming of joint ownership or even beneficiaries (in the case of death).

What is acquired during the marriage becomes jointly owned in States which have community property laws, unless codicils, etc. are drawn up for separate ownerships of certain assets upon/after marriage, by joint agreement. (Such as a supportive husband declaring to wife that ‘I want you to keep your new business venture in your separate name so that you will be psychologically invested in it and be proud of your success.’)

For this reaason, the desire for pre-nups has always confused me. But I’m willing to listen to arguments for their need. Please enlighten me.

 

[markomalley]

Actually there are two keys. I agree about the “indissolubility” part that you pointed out. But the other part is “properties of marriage”. Just because one gets married does not automatically make everything that person holds in ownership “property of marriage”, as pointed out in my previous post.

The properties that Can 1056 refer to here are not property, such as houses, bank accounts, and cars. The properties are “characteristics” or “qualities.” For example, a property of water is that it freezes at 0 degrees celsius.

Children from a previous marriage deserve to have their interests protected. That is a parent’s responsibility. So I disagree that the children from a previous marriage are not to be considered, because they should. So should the parents of the married couple, and any siblings that share an interest in any assets acquired before the couple got married.

In a civil context, I don’t disagree with you at all. But in a spiritual context, a prenuptial agreement to marriage is like sex using a condom. You are holding something of yourself back. And that, in my non-qualified opinion, would be something to indicate that the marriage was not validly entered into. Again, let me stress that I am just a layman with pretensions. A canon lawyer would be far better able to address that.

I certainly would not want the farm truck, which I bought with my brother, to automatically become shared marital assets when and if he ever got married. We bought that truck together, even though the truck is in his name. We paid for the cost, straight down the middle, and we alternate paying for the insurance. I would take issue if he would not protect my investment. He can either stipulate in a prenup that the truck is not shared marital property, and in fact, belongs to him and me – or he can sign over the pinkslip to me. The truck also belongs to me and someone else shouldn’t decide what to do, if anything, with that truck. It has nothing to do with the dissolubility of any future marriage. The shared asset should not be shared with a third party without my consent…that’s how it is with many assets acquired before a marriage.

Now…buying a home, in which the married couple will live, is shared marital assets. Buying a car when married, which both will use, is shared marital assets. But not every little thing is automatically the newspouse’s property.

Also, the terms of the prenup as I have discussed in the examples in my previous posts, apply throughout the entire marriage. It has nothing to with the “dissolution” of marriage. It is assumed the marriage will continue, and not end. That’s the difference between a prenup that conforms to the canon, and one that does not. The one that doesn’t conform to canon discusses “divorce”, “end”, “dissolution”, etc. There is no mention of these things in the approved prenup.

And that may be a completely different situation, to define an asset as not being part of the marital union because of an actual third party interest. That is a different scenario than protecting the estate for the children from a first marriage where the property in question is solely under control of a spouse. I would think that the way to handle that would be through the establishment of a trust.

Unity means that the two spouses become one flesh. Not one flesh except _ (fill in the blank) _ – and that’s the point that I am objecting to. Any type of a legal arrangement that provides for the two becoming one except would interfere with the validity of the marriage (again, in my non-lawyerly point of view)

But a canon lawyer would have to look at the situation, and perhaps have an opinion rendered by the diocesan tribunal, prior to attempting a marriage.

 

[Rence]

Rence, I am not an expert in community property law. But it is my understanding, in states which do have community property laws as these relate to marriage (I live in one such State), the situation with your and your brother’s joint property would be protected in the case of a dissolution of marriage (or even death – such as if the husband’s side of the family were to claim the truck as part of some estate proceeds).

You’re right — IF the said property that my brother and I own are in both our names. In my case, it is not. The truck is in his name. Therefore, hypothetically speaking, if there was a future marriage, followed by a future divorce, or his death, I would have no legal recourse because the truck is in his name only. Therefore, he would have to either add me to the title, or put it in trust, or in a prenup. Any of these would work. However, if the property was in both our names, you’re right, it would remain “ours” or “mine”.

What is not joint property before marriage – what is acquired separately – remains separte ownership in the event of dissolution of the marriage through divorce, annulment, death. Of course, in the case of assets like cash, a spouse wanting to keep that separate would have to keep the account intact with no joint signatures, etc., after marriage, and no naming of joint ownership or even beneficiaries (in the case of death).

True – to a point. If marital assets are used to repair or maintain the separate property of the individual spouse, it MAY have to be repaid to the marital “pot” in the case of divorce/annulment or death, even if they both agreed to spend marital assets to do the repair or maintenance. This is a risk, and depends on a judge’s mood. My ex-step father tried to make my mom to pay him back for the repairs done on the home (even the ones done for his benefit and pleasure). Mind you, it was HIS prenup…however, the prenup stated that each’s perspective properties would remain their own property, EVEN IF joint marital funds were used to repair, remodel or otherwise maintain said individually owned property. So in the case of private property (either belonging to an individual spouse, or bequethed to a child/children) this stipulation (“even if shared marital funds are used to maintain, or repair said property, it remains the property of said individual”). So yes, true, you’re right, the property would remain the individual property of a spouse, but that doesn’t mean there won’t be a penalty down the road if there is a conflict.

What is acquired during the marriage becomes jointly owned in States which have community property laws, unless codicils, etc. are drawn up for separate ownerships of certain assets upon/after marriage, by joint agreement. (Such as a supportive husband declaring to wife that ‘I want you to keep your new business venture in your separate name so that you will be psychologically invested in it and be proud of your success.’)

Or a supportive husband and wife allowing each to maintain a separate account of their own…I never did understand how crafty people were able to sneak in their Christmas or birthday shopping without a spouse knowing, but gramma and granpa did it and did it well. Mom and hubby always had joint, as well as separate accounts though.

For this reaason, the desire for pre-nups has always confused me. But I’m willing to listen to arguments for their need. Please enlighten me.

Well you asked for it Ms. Elizabeth Watch for the book-sized email to follow…not sure if I can get to it tonight because it’s almost 8pm , but for sure you will get it next week if not tonight

 

[wjp984]

Why are prenuptial agreements not allowed? I mean, you can only account for yourself and that you will be faithful. How are you supposed to know if whoever you marry will do the same for you. How do you know they will still do the same for you three years from the time you get married? What if your spouse decides to divorce you and you don’t want to be divorced, but you are in a no fault state and have no say in the matter? Shouldn’t prenuptial agreements be allowed to protect one’s self from these situations?

I’m not married but I certainly think mutual prenuptial agreements are a good thing to insure against going against the rules of the Catholic Chuch. For example, what would be so bad about the following prenuptial agreement.

“We agree to be faithful to the Catholic Church regarding marriage and this is a covenant that if broken will result in a situation as if no marriage ever occurred.” This would include all the financial and legal implicatons of a prenuptial agreememnt and all that stuff could be written in.

 

[wjp984]

Rence, I am not an expert in community property law. But it is my understanding, in states which do have community property laws as these relate to marriage (I live in one such State), the situation with your and your brother’s joint property would be protected in the case of a dissolution of marriage (or even death – such as if the husband’s side of the family were to claim the truck as part of some estate proceeds).

For this reaason, the desire for pre-nups has always confused me. But I’m willing to listen to arguments for their need. Please enlighten me.

You are generally correct in your understanding of CP. One’s property that is owned before and after the economic community is considered separate (SP). Property received through inheratence, gift, or acquired using SP funds during the economic community is SP.

However, the need for prenuptial agreements has more to do with spousal payments or even the classification of your earned income during marriage. For example, did you know that student loans are considered basically as an asset going into a marriage? So hypothetically, you have 100k in student debt, you get married. You get a job, you start paying off your loans with the money you make using your earned income (considered CP)

Guess what happens if your spouse divorces you? You have to pay your spouse back the money that you used, from your own earned income, towards paying back your student loans. Because once you got married, you weren’t using your money to pay back your loans; you were using your spouse’s money becuase what’s yours is hers and what is hers is yours unless there is an agreement. Now there are exceptions but in general, you can see the problem.

 

[wjp984]

You’re right —

True – to a point. If marital assets are used to repair or maintain the separate property of the individual spouse, it MAY have to be repaid to the marital “pot” in the case of divorce/annulment or death, even if they both agreed to spend marital assets to do the repair or maintenance. This is a risk, and depends on a judge’s mood. My ex-step father tried to make my mom to pay him back for the repairs done on the home (even the ones done for his benefit and pleasure).

Well you asked for it Ms. Elizabeth Watch for the book-sized email to follow…not sure if I can get to it tonight because it’s almost 8pm , but for sure you will get it next week if not tonight

First of all I am adding a disclaimer that nothing I write here or in my previous posts is to be used for any purpose other than talking and debating about this issue. It is all for fun and if you (anyone that reads this forum) have some legal issues then seek an attorney. I am just really bored and enjoy talking about the law.

To the poster I am quoting: you seem to know what the reality of the situation based on your experiences. Basically in general, marital property used to enhance the other’s separarte property is considered a gift absent an agreement. However, there is a split of authority on this and no real binding authoirty even for that split which means it really is up to the judge on a case by case basis.

If the judge determines that the reimbursement is warranted it is the greater of the costs of repairs/improvements or the increased value of the property.