We have had a recent spate of pre-marital agreement requests from folks who adhere to Roman Catholicism as their faith. This creates a rather ticklish situation because for better or worse many American Catholics don’t pay close attention to the Vatican’s Code of Canon Law and Chapter IV’s regulation of matrimonial consent. Needless to say, to be married within the Catholic Church requires attention to these laws as they bind Catholics throughout the world in the same way that Pennsylvania’s statutes regulate marriages in Pennsylvania.
The Canon Law of note is No. 1102. It is quite simple and can be read on the Vatican’s website. “A marriage subject to a condition about the future cannot be contracted validly.” As most attorneys will confess, simplicity of language does not always connote uniformity of interpretation. But the accepted interpretation one hears from those trained in canon law is that parties cannot marry with the blessing of the Church where they have already made agreements touching upon the possibility of separation or divorce.
We profess to have no training in canon law, but the conventional wisdom is that the parties can agree upon matters regulating their marriage but they cannot have language that contemplates an end to the marriage because marriage is a holy event intended to last indefinitely.
The typical prenuptial agreement triggers upon either separation or divorce. Neither of those words can appear in an instrument which the Church would approve. So what choices are available. It would appear that some couples simply choose not to reveal the terms of their agreements to the ordinaries who marry them. It is not the responsibility of secular attorneys to reveal their actions and obviously, others in far higher authority than secular lawyers will judge. The second is to attempt to craft agreements that try to limit rights without incorporating any conditions “about the future.” This is itself a very slippery slope because just about every element one can contemplate in a prenuptial agreement is an attempt to regulate future conditions. There are law firms that do have civil attorneys who also profess to specialize in Canon law and it may be worthwhile seek out that specialized assistance because clerics may want to approve of an agreement before their consent to solemnize the marriage.
None of this really affects Pennsylvania law. Church law and secular law are completely separate. Pennsylvania policy actually supports premarital agreements and that policy is not changed based upon the religious affiliations of the citizens who are governed by Pennsylvania law.