" prenups invalidate a marriage, don’t they?"
(I only speak to the canonical question and not the other issues. Anyone presented with a prenup to sign before marriage is urgently advised to discuss the matter with the priest preparing the couple for marriage to discuss all the issues— canonical, civil and others raised in the thread.)
Maybe yes. Maybe no.
Indissolubility is an essential property of marriage (c. 1056) . Sometimes we call it permanence. Valid marital consent can be undermined if there is a positive act of the will to exclude indissolubility at the time of consent. Essentially a person who does this really intends to enter into a marriage that he or she judges to be dissoluble at will (c. 1101§2), and then we would have invalidity. But the internal consent to marriage is presumed by the law when it is externally given in words or signs of the ceremony (c. 1101§1). Invalidity would have to be proven in a tribunal.
The particular document and the disposition of the parties would have to be examined in addition to the testimonies of the case. The mere provision for the distribution of property upon the contingency of civil divorce would not necessarily exclude valid consent. Those other factors would need to be examined in the concrete.
That a person might entertain the speculative possibility of divorce does not necessarily create a positive act of the will to exclude indissolubility. Possibilities, hypotheses, and speculations about the future are evaluated in the intellect. But marital consent pertains to the will, since it is an act of the will that establishes marriage (canon 1057). As you might expect, there are jurisprudential standards for examining if a positive act of the will to exclude marriage or one of its properties or elements existed at the time of consent. What exactly did the person intend? It is always difficult to establish this.
(The matter of the conditional consent mentioned in canon 1102 may or may not be relevant in any given case. One would have to look at details. In some ways canons 1101 and 1102 can draw very close to each other and the distinctions are nuanced. Convalidation raises other issues since a new act of the will has to be given by both parties. If one or either believed that the prior ceremony led to a valid marriage, they wouldn’t give any new consent at the convalidation. But it could also be a maybe yes and maybe no situation as above.)
The pope addresses the question of indissolubility in one of his allocutions to the Rota. It is a nice read. See what he says about “positive act of the will” at n. 4.
vatican.va/holy_father/john_paul_ii/speeches/documents/hf_jp-ii_spe_20000121_rota-romana_en.html
Now certainly no one can enter marriage believing or intending that it be a temporary or contingent arrangement or that it be just another human contract. God instituted it to be a permanent and life giving covenant regulated by God’s law and not ours. A loss of the sense of permanence and the divine in marriage is one of the plagues of our age.
I said that in my first post.I found this from a 2007 thread, from a post by a professed canon lawyer. It does seem to indicate that this can be done, which is all I really wanted to know. In other words, a prenup can be conceived and signed, still intending indissolubility.
My post asked only if it was possible. You went on to answer the question as “should” one do it. I don’t have the time and energy to waste the judicial vicar’s time and energy on hypotheticals, not that he would likely let me. That advice seems absurd since I assume they are pretty busy. This is the proper place to explore the corners of theology on a hypothetical level, at least to start with. With your #3, your lack of knowledge (experience) is not something I thought worth commenting on.I said that in my first post.
It is possible, but any prenuptial agreement has to be examined by the tribunal and a ruling made before the marriage can proceed.
I am not sure why you have ignored everything I’ve said since my first post:
- It is possible
- The tribunal must examine it and rule before a marriage can be contracted
- The only cases I know of involved a prenuptial agreement regarding death, not divorce
- Make an appointment with the judicial vicar of your diocese to discuss in detail
I answered your question: it is possible but only with tribunal review.My post asked only if it was possible. You went on to answer the question as “should” one do it.
You indicated you are a Catholic lawyer and wantd guidance on how to respond to clients on this matter. Th Judicial Vicar is absolutely the correct person to talk to, it is his job, he can guide you and it is not absurd advice at all. It is the answer to what you asked-- how to get guidance on what you should do as a Catholic lawyer.I don’t have the time and energy to waste the judicial vicar’s time and energy on hypotheticals, not that he would likely let me. That advice seems absurd since I assume they are pretty busy.
It is not the proper place to get the answer for this topic, because it cannot be addressed in hypotheticals only in actuals. Any prenup is going to be investigated by the tribunal based on what it contains, the couple will be interviewed as to their intentions.This is the proper place to explore the corners of theology on a hypothetical level, at least to start with.
Rudeness duly reported.With your #3, your lack of knowledge (experience) is not something I thought worth commenting on.
I think that you are making a real point here. You are going contrary to the conventional understanding of a pre-nup. Conventional understanding is based on the possible outcome of a divorce. Now if the contract must be valid independent of the success/failure of the marriage then it could be the moral equivalent of a non disclosure agreement when one of the two parties enters in relationship with a third partner.I found this from a 2007 thread, from a post by a professed canon lawyer. It does seem to indicate that this can be done, which is all I really wanted to know. In other words, a prenup can be conceived and signed, still intending indissolubility.
That is a false dicotomy, moral law (a.k.a. natural law) and canon law cannot contradict each other. What is forbidden by natural law is not allowed by canon law even if not expressly forbidden.Another interesting tidbit I should have put in my original post is that moral law and church law may be different on the point. Not all things that are moral are permitted by church law.
Would you mind providing a source for these assertions, especially the assertion that a diocesan tribunal has to rule on the validity of a pre-nuptial agreement in advance? I have never heard of such a thing, and legally it’s simply incorrect: a prenuptial agreement in proper form is binding, regardless of whether a spouse’s church’s tribunal has ruled on it. The Catholic Church has no power under American law to declare a pre-nuptial agreement invalid or void. If the requirements are met, it’s valid, like it or not. Similarly, I have never heard of weddings being held up because the diocese has to decide whether to permit it to happen, simply because there’s a pre-nuptial agreement in place. As Dennis Miller might say, that’s news to me.I said that in my first post.
It is possible, but any prenuptial agreement has to be examined by the tribunal and a ruling made before the marriage can proceed.
I am not sure why you have ignored everything I’ve said since my first post:
- It is possible
- The tribunal must examine it and rule before a marriage can be contracted
- The only cases I know of involved a prenuptial agreement regarding death, not divorce
- Make an appointment with the judicial vicar of your diocese to discuss in detail
I think you misunderstood me.Would you mind providing a source for these assertions, especially the assertion that a diocesan tribunal has to rule on the validity of a pre-nuptial agreement in advance? I have never heard of such a thing, and legally it’s simply incorrect: a prenuptial agreement in proper form is binding, regardless of whether a spouse’s church’s tribunal has ruled on it. The Catholic Church has no power under American law to declare a pre-nuptial agreement invalid or void. If the requirements are met, it’s valid, like it or not. Similarly, I have never heard of weddings being held up because the diocese has to decide whether to permit it to happen, simply because there’s a pre-nuptial agreement in place. As Dennis Miller might say, that’s news to me.
I never said that all such marriages were void. I said each case is unique and requires investigation before the marriage can move forward.As for marriages involving pre-nuptial agreements, it’s true that the existence of a pre-nup can be evidence of lack of matrimonial intent on the part of one or both spouses; but it does not necessarily follow that all such marriages are void.
You really seem to be tilting at windmills here. No one said any such thing.Such a pre-nup – which is executed for the purpose of protecting the business and at the demand of the business – is not something that screams “See?! That spouse wasn’t contemplating permanent marriage!” So it would not (at least, on its own) suggest invalidity of the matrimonial bond.