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
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
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
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.