Pope Francis Pennsylvania and Prenuptial Agreements

Divorce and Prenuptial agreements have long been sources of friction for American Catholics. As Pope Francis travels to Philadelphia this month, his more liberal and compassionate stances are in the media, particularly one comment made at a June audience in Rome when he said divorce may sometimes be “morally necessary.”

Whether or not this represents a new view of the church is for canonic lawyers to argue, but clients sometimes find their faith in conflict with civil law processes they undertake for either marriage or divorce. When it comes to prenuptial agreements, Catholics contend with the Code of Canon Law 1192 § 1, which states “A marriage subject to a condition about the future cannot be contracted validly.”

At first glance, it would seem this precludes a prenuptial agreement, and most Catholics – clergy and lay alike – probably assume this. Yet, like many aspects of Catholicism, it tends to be more complicated and nuanced than commonly understood.

For instance, at least some American Catholic dioceses fully support a prenuptial agreement when the two parties are widowed and have children and property from previous marriages, and the contract primarily deals with what happens should one partner die. There also seems to be acceptance by the church if the contract is structured to protect or provide for elderly parents or disabled children or relatives.

A prenuptial contract in this case might provide more instructions than a Will, as well as a much more detailed record of the assets involved.

Canon lawyer Ed Peters, in his blog “In the Light of the Law,” makes a few points about prenuptial agreements which Catholic clients might ponder. As mentioned above, he points out that the Catholic Church does not oppose divorce in all circumstances. Also Dr. Peters explains, a pre-nuptial agreement is a kind of contract. The morality of any contract, he continues, depends on its terms-and likewise, the morality (or immorality) of any pre-nuptial agreement depends on what it says. Peters explains:

“Indeed, one could construct a pre-nup that is deliberately counter-cultural and, even if parts of it came into play only in the face of divorce (which an unwilling party cannot prevent anyway), would discourage civil divorce undertaken in disregard of Christ’s teaching on marriage.”

Clients of Catholic faith wondering where they stand in the intersection of Canon and Civil Law might draw this lesson: research your diocesan stance on prenuptial contracts, consider your reasons for making such a contract (for instance, if children need protection), and move forward as reason and faith dictate. Prenuptial agreements are as individual as each couple who enters into one; incorporating teachings or elements of one’s faith need not necessarily be a barrier to constructing one.