Sunday, April 20, 2008

Pre-nuptial agreements

I am a Catholic priest. In a recent marriage that I solemnized outside Manila, the bride’s father demanded that the Marriage Contract contain an annotation that a Pre-Nuptial Agreement had been made (regarding real estate properties that the bride was inheriting from her parents), and that such annotation be made prior to the filing of such Marriage Contract in the City Hall. Though taken aback, since it was the first time I encountered such a request, I agreed, since it was too late to do anything else. Did I do right?

What saved the day, as far as the canonical marriage was concerned, is the fact that there are normally two marriages being contracted when a so-called Church wedding takes place: first and foremost, the canonical marriage (which is what we can comment about) and the civil marriage (which is what the Marriage Contract from City Hall attests to, and about which we shall not comment about for lack of competence). Since the annotation was made in the Marriage Contract for the civil marriage—assuming that such pre-nuptial agreements are licit in the civil sphere—, then there was absolutely no problem as far as the canonical marriage was concerned.
Nevertheless, it would be good to comment on the incidence of such pre-nuptial agreements on the validity and/or licitude of the canonical marriage, if such agreement were really taken formally by the spouses as part of their marital consent.

Conditioned Matrimonial Consent in Canon Law

Can. 1102 — §1. Marriage based on a condition concerning the future cannot be contracted validly.
§2. Marriage based on a condition concerning the past or the present is valid or invalid, insofar as the subject matter of the condition exists or not.
§3. The condition mentioned in §2 cannot be placed licitly without the written permission of the Local Ordinary.

As we had explained in the past, the matrimonial consent should in principle not be subjected to any condition, since by its very nature, marriage implies a total acceptance of the other in the actual moment of the celebration of marriage.

As far as conditions concerning the past is concerned, the validity of the marriage contracted would of course depend on whether or not the condition is met or not—something which can be verified at the moment of marriage since the condition is of the past; nevertheless, the Law prohibits (under pain of illicitness but not of invalidity) the placing of such conditions without the written permission of the Local Ordinary.

On the other hand, a condition concerning the future invalidates the marriage, since the condition—on which the consent depends—still does not exist at the moment of celebrating the marriage.

Pre-Nuptial Agreements and Canon Law

The so-called pre-nuptial agreement, which of late is becoming popular in some Western countries, is still relatively uncommon in the Philippines. When it occurs—as in the present case—it normally involves property settlements—in the case of death of one of the spouses, or the separation of the spouses, or the declaration of nullity of the marriage—and is an issue exclusively in the sphere of civil law. However, care should be taken by the parish priest (or the solemnizing priest) that such a pre-nuptial agreement does not in fact formally enter in the formation of the consent given in the celebration of a canonical marriage:

1st: because if such a condition involves property settlements in the future, such a condition invalidates the consent (and the marriage), since it involves a condition that does not yet exist (c.1102, §1).

2nd: because even if such a condition involves something of the past, it should not be allowed without written permission of the Local Ordinary (c.1102, §3), under pain of illicitness.


From the tenor of the consultation, it can safely be stated that the canonical marriage was contracted validly by the spouses, since the pre-nuptial agreement was a purely civil instrument.

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