Q: A friend is in a relationship where his fiancée won't sign a prenuptial agreement because she thinks it would make the marriage is invalid. It could be grounds for annulment. "For richer and for poorer" etc. What is the canonical opinion here? (Sydney, Australia)

A: When we speak about a prenuptial agreement, or a "prenup," generally we're talking about a secular civil law agreement made prior to a marriage one that details how the individual spouses' resources are to be shared or not shared. Although laws can vary slightly within the United States, for the most part the presumption is that the spouses combine their resources upon marrying meaning – if the parties were to divorce – one spouse might be legally entitled to property that originally belonged entirely to the other.

Since as Catholics we believe that marriage is for life, obviously the Church does not recommend having a prenuptial agreement, which seems like a pre-plan for an eventual divorce.

However, by itself a prenuptial agreement is not grounds for a declaration of nullity from a Church marriage tribunal and having a prenuptial agreement does not automatically make a marriage invalid. In fact, there can be some entirely legitimate reasons why a couple might have a prenuptial agreement. For example, if an older widowed couple marries, they might have a prenuptial agreement in place to ensure that their respective children receive their proper inheritances. A prenuptial agreement might also be helpful in clarifying exactly who owns what in a multi-generational family farm or business, especially one in which multiple siblings have a stake.

Still, if a divorced couple with a prenuptial agreement were to present their case before a diocesan marriage tribunal, the exact terms and circumstances of the agreement can often be of great interest to the tribunal judges. Even if a prenuptial agreement is not a direct cause of nullity, it can be a "symptom" of a larger (and invalidating) problem within the union.

An example is the ground of partial simulation "contra bonum sacramenti," often translated into English as "against the good of permanence." This describes a situation where one of the spouses, even if they outwardly promised a lifelong marital commitment at the altar, always intended to allow themselves the possibility of leaving the union. (See can.1101, 1) Similarly, but less commonly, one or both spouses might have been genuinely mistaken about the fundamental nature of marriage as a permanent union, in such a way that they never intended to enter into an unbreakable life-long bond. (can. 1099) A prenuptial agreement which was clearly intended to facilitate an easy civil divorce could be a convincing piece of supporting evidence for grounds such as these.

Additionally, it could also happen that someone might attempt to marry in a contingent way, for instance by saying: "I will marry you, but for only as long as you remain fit and attractive" or, "I will only consider myself married to you if we are able to have a big family." In canon law, this is called "marriage subject to a future condition," and such attempted marriages are always invalid. (can. 1102, 1) If the future condition in question was spelled out in a civil prenuptial agreement, this would indeed be a very strong sign of the nullity of the marriage.

Ultimately, just because something doesn't automatically make a potential marriage invalid doesn't mean it's the best thing for fostering a healthy marital relationship. If one party is proposing a prenuptial agreement and the other is uncomfortable with this, it's important to have a pastoral conversation about everyone's feelings, expectations and intentions.

Jenna Marie Cooper, who holds a licentiate in canon law, is a consecrated virgin and a canonist whose column appears weekly at OSV News. Send your questions to [email protected].