Do ‘pre-nups’ produce invalid marriages?

Part of the necessary documentation for a church wedding is the pre-nuptial
enquiry form. When priests mention this requirement to couples there’s often
a short silence. Because ‘pre-nuptial enquiry form’ sounds suspiciously like
‘pre-nuptial agreement’, which is something else entirely.
The pre-nuptial enquiry form is to ensure that a couple have been baptised
and confirmed, are free to marry and that they understand what Christian
marriage is.
A pre-nuptial agreement is a document agreed by both parties to a marriage
about how the spoils of war will be divided in the event of the marriage
falling apart.
It’s a topical issue at the moment as a Law Commission in England, after
studying the situation for four years, is suggesting that pre-nuptial
agreements should be incorporated into English marriage law. And where
English law goes, Irish law tends to follow.
It’s a subject that has exercised Irish minds quite a bit since the law
changed some years ago regarding the disposal of assets if marriages break
down. And it’s summed up in the story of a group of young men, including a
prospective groom, drinking in a pub the night before a wedding.
The banter was good-humoured and the group began to tease an elderly
bachelor supping a pint in the corner. The groom teased the bachelor about
the lonely life he’d lived, the farm he had no one to leave to and what had
he to show for it? The bachelor looked him in the eye and said that whatever
land he (the bachelor) had he would always have which couldn’t be said for
the groom. ‘After you walk down the aisle tomorrow’, the bachelor said,
‘you’ll only own half the farm you have today’.
In some ways pre-nuptial agreements make great sense. Spouses often bring
very varied inheritances to a marriage and it seems fair that, all things
being equal, what they took to a marriage they should bring with them if the
marriage fails. With so many marriages now breaking up it seems sensible to
plan for that prospect. And with so many couples retaining their own money
and their own bank accounts, pre-nuptial agreements seem no more than an
extension of that. And, of course, such agreements would deter ‘gold
diggers’, men or women.
It seems strange, for example, that when the multimillionaire Sir Paul
McCartney wedded Heather Mills without the parachute of a pre-nuptial
agreement he ended up paying her, according to a recent report, a whopping
£17,000 for every day they were married – or £24 million in all. So the
argument that marriage has changed and that the rules governing it need to
be changed is fairly compelling.
But there’s a problem, if by ‘marriage’ we mean ‘Christian marriage’. And it
isn’t just that ‘pre-nups’, as they are called, must take the romance out of
the ‘for better or worse’ commitment if part of the plans for the greatest
moment of people’s lives is agreeing who will get the back field or the fur
coat if the relationship goes awry.
The problem has to do with the principle of consent. In Christian marriage
that ‘consent’ principle is sacrosanct. If two people promise to love each
other for as long as the marriage lasts, or while both are happy to keep it
going, then it’s clear that the consent is less than full and complete, less
than the words mean– ‘for better, for worse, for richer, for poorer, etc’.
The consent is defective and if defective consent can be shown to be present
at the time of the marriage it can be argued that the couple are not really
married at all and are therefore entitled to a declaration of nullity (a
statement that the marriage never existed at all.) Without appropriate
consent, a Christian marriage is invalid.
Some years ago in England a prominent Catholic politician married a famous
(non-believing) philosopher. After some years the marriage broke down. The
Catholic wife sought a degree of nullity (an annulment or declaration that
the marriage never existed) on the grounds that her husband entered the
marriage with ‘a divorce mentality’ (if it doesn’t work out I’ll walk away
from it) and that therefore his consent was defective. Even though he said
the words ’for better, for worse, etc’ he didn’t really mean them because he
was keeping his options open. The wife applied for an annulment and was
granted it.
The point here is that in Christian marriage if a pre-nuptial agreement is
part of the package a strong argument can be made for suggesting that it’s
not a Christian marriage at all.
There’s a lot of debate now about marriage and its ever-expanding
definition.  In a sense that’s inevitable as people now live longer, and
therefore spend a longer time married than their parents or grandparents. As
well as that the notion of a permanent commitment doesn’t rest very snugly
on the shoulders of the young, now. If we change our jobs, change our homes,
change our ideas the notion of changing spouses after X number of years
seems to part of the way we are becoming.
So there are many kinds of marriages today, even though the word ‘marriage’
can appear strained when it tries to encompass them all – civil marriage,
common law marriage, same-sex marriage, Muslim marriage, Hindu marriage . .
. and Christian marriage.
One of the constituents of Christian marriage is consent to its permanence –
for better, for worse, for richer, for poorer. If that permanence is
compromised with a pre-nuptial agreement then it’s not really Christian
marriage at all. The consent is defective so the marriage is invalid.

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  1. Pádraig McCarthy says:

    Points here worth thinking about. “Happily ever after!”

  2. That’s dynamite. I wonder will it be picked up by the media. Was always true but had never really thought about it.
    On the pre-nuptial enquiry, I had a very interesting experience.
    You were expected to produce a recent baptism cert to show (i) you had been baptised, and (ii) you had not been married previously. The latter worked in the following way. You applied to your original church of baptism for a cert. The church checked the register, including that there was no annotation on it that you were previously married. It then issued a clear cert. You hand up that cert to the church you are married in and they return it annotated with details of the marriage to the original church. That church then annotates the entry in the register so that the next time it issues a baptism cert the marriage will be noted on it.
    It is a beautifully simple system that would make any modern data base operator purr with admiration. Fool proof. Crash proof.
    Well not really. It leaves out the human factor. When I handed up my cert the church I was married in not only didn’t send it to my church of baptism, it gave it back to me and I still have it.
    So, if I’m ever tempted to have another go, my church of baptism will be foursquare behind me.
    Anyway, just sayin’.

  3. I think that a pre-nup agreement definitely invalidates a marriage. No couple should be admitted to Catholic Marriage if they’ve taken out such a policy. And I wouldn’t touch a woman who would hold such reservations about me. ‘TIL DEATH DO US PART – I take that very seriously. Perhaps that’s why I’m still single!!! Marriage reflects the unconditional, self-less love of Jesus, so how can it be that we could even think of saying ”if it doesn’t work out, I get this…?”

  4. Pádraig McCarthy says:

    Re 2: Pól Ó Duibhir:
    Yes, there’s always the human factor. But it’s not correct that “You hand up that cert to the church you are married in and they return it annotated with details of the marriage to the original church.” It is not the cert that is returned. There is a separate form for “Notification of Marriage” which is sent to the church of Baptism. Perhaps Pól could request an up-to-date copy of his Baptism certificate now, and find out whether the marriage is recorded there.
    “So, if I’m ever tempted to have another go, my church of baptism will be foursquare behind me.” Maybe. Maybe not.
    Another human factor. In one parish where I served, we received a Notification of Marriage, for recording in the Baptism register. The record of the Baptism could not be found. The sacristan was suspicious and looked further. The Baptism certificate of the bride in question had been altered: ten years were taken off her age!

  5. Peter Langan says:

    The pre-nuptial agreement is, in fact, already part of the law of England and Wales. The circumstances in which it will be enforced were laid down by the Supreme Court in Radmacher v Granatino, decided in October 2010.
    So important was the principle of enforceability or non-enforceability considered that the case was heard by a bench of nine, rather than the usual five, judges. There was a substantial majority, 8 to 1, in favour of enforceability.
    Presumably the canonical impact of the making of such an agreement will depend on the precise state of mind of the parties. The mere making of formal provision for a contingency which neither desires, but which cannot be ruled out as an impossibility, might not on its own be destructive of the necessary intention to form a lifelong union. But I am not a canonist…

  6. Thanks Pádraig. I’ll take you up on that. You’ve made me curious.
    Just as an aside, on the question of altering dates, comparison of the 1901 and 1911 censuses shows up an amount of accelerated ageing which came about around 1908 as the 1909 pension was about to be introduced for those over 70.

  7. Pádraig McCarthy says:

    Re 6: Pól Ó Duibhir.
    I’ve learned to take stated ages with flexibility in family tree matters! It seems they were just not too particular to be exact. There are discrepancies in the aging from 1901 to 1911 in my family tree, most of them becoming younger; but no pensions were involved. My mother’s aunt Agnes is given as 19 in 1901, but as 20 in 1911. Eternal youth?
    On my father’s side, comparing civil registration with baptismal register, I found that in many cases children were baptised up to several weeks before they were born! Clearly not the case. The explanation I think is simple. The baptism took place within a few days of birth, and so it was easy to remember which day. The civil registration where a child was born at home might not take place until some time had elapsed, at which stage they could not remember exactly what day the child was born, and just gave an approximation. The human factor again. The baptismal date is likely to be more accurate.

  8. Joe O'Leary says:

    Peter Langan sounds right — prenups are just a kind of insurance – today no one can be sure that the disaster of divorce or annulment will not overtake their marriage.

  9. Pádraig
    I have followed that up (#6) and I owe Holy Mother Church an apology.
    I got an up-to-date baptism cert, and lo and behold, there I am duly married and no chance of sneaking in another one unnoticed. Full marks to Ssts Alphonsus and Columba, Ballybrack.
    I am heartened to see that what I had thought of as the perfect system is actually working.
    However, I still maintain that a watch has to be kept for the possibility of human error, though for possible evidence I now have to go back to 1870 and the birth of my grandfather. He was baptised in Clontarf in that year and subsequently married in church, in James’s St. in 1901, but there is no annotation on the birth register of that fact. I have seen such annotations on other parish registers and, unless Clontarf did things differently and kept a separate register for those baptised there who got married elsewhere, then there was a glitch in the system.
    Just out of interest, and in passing, the system, when working properly would normally avoid the type of thing that happened with Bono’s parents who got married twice in church and both marriages were recorded as separate valid civil marriages. However, their case did not mean a breakdown in the church system as their first marriage was in a Protestant church. The fault here lies with Dolphin’s Barn who should not have notified the second (Catholic) marriage to the State authorities, and if they were not aware of the first marriage, with the State, whose system should have picked it up.
    Whatever about the slog and frustrations, chasing up family history can be fun.

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