Excerpt from a Canon Law Opinion Outlining
the "de facto" Catholic Antenuptial Agreement

(submitted 8/23/04 by the defendant in an Ohio divorce case)

1. As Catholics, to enter into marriage in the Catholic Church is to be introduced into an ecclesial order of spouses (cf. Catechism of the Catholic Church, Nos. 1631 and 1537).

a) Catechism of the Catholic Church, No. 1631: "This is the reason why the Church normally requires that the faithful contract marriage according to the ecclesiastical form. Several reasons converge to explain this requirement:

• Sacramental marriage is a liturgical act. It is therefore appropriate that it should be celebrated in the public liturgy of the Church;
• Marriage introduces one into an ecclesial order, and creates rights and duties in the Church between the spouses and towards their children;
• Since marriage is a state of life in the Church, certainty about it is
necessary (hence the obligation to have witnesses);
• The public character of the consent protects the "I do" once given and helps the spouses remain faithful to it."

b) Catechism of the Catholic Church, No. 1537:
"The word order in Roman antiquity designated an established civil body, especially a governing body. Ordinatio means incorporation into an ordo. In the Church there are established bodies which Tradition, not without basis in Sacred Scripture, has since ancient times called taxeis (Greek) or ordines. And so the liturgy speaks of the ordo episcoporum, the ordo presbyterorum, the ordo diaconorum. Other groups also receive this name of ordo: catechumens, virgins, spouses, widows,…."

2. Among the effects of being incorporated into the ecclesial order of spouses is the assumption of certain rights and duties towards one's spouse and one's children. (See supra Catechism of the Catholic Church, No. 1631). These rights and duties are governed by canon law.

a) Code of Canon Law, canon 1059: "Even if only one party is Catholic, the marriage of Catholics is governed not only by divine law, but also by canon law, without prejudice to the competence of civil authority concerning the merely civil effects of the same marriage."

3. Among the rights and duties that bind those in the order of spouses are the duty and the right to preserve conjugal living unless a legitimate cause excuses them (cf. Code of Canon Law, canon 1151).

4. Before spouses may separate, the spouses have the duty and the right to follow the canons regarding the "Separation (of the Spouses) with the Bond Remaining," the substantive law of which is found in Code of Canon Law, canons 1151-1155, and the procedural law of which is found in Code of Canon Law, canons 1692-1696 (see below).

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CANON LAW

SEPARATION WHILE THE BOND REMAINS

Can. 1151 Spouses have the obligation and the right to maintain their common conjugal life, unless a lawful reason excuses them.

Can. 1152
§1 It is earnestly recommended that a spouse, motivated by Christian charity and solicitous for the good of the family, should not refuse to pardon an adulterous partner and should not sunder the conjugal life. Nevertheless, if that spouse has not either expressly or tacitly condoned the other's fault, he or she has the right to sever the common conjugal life, provided he or she has not consented to the adultery, nor been the cause of it, nor also committed adultery.

§2 Tacit condonation occurs if the innocent spouse, after becoming aware of the adultery, has willingly engaged in a marital relationship with the other spouse; it is presumed, however, if the innocent spouse has maintained the common conjugal life for six months, and has not had recourse to ecclesiastical or to civil authority.

§3 Within six months of having spontaneously terminated the common conjugal life, the innocent spouse is to bring a case for separation to the competent ecclesiastical authority. Having examined all the circumstances, this authority is to consider whether the innocent spouse can be brought to condone the fault and not prolong the separation permanently.

Can. 1153
§1 A spouse who occasions grave danger of soul or body to the other or to the children, or otherwise makes the common life unduly difficult, provides the other spouse with a reason to leave, either by a decree of the local Ordinary or, if there is danger in delay, even on his or her own authority.

§2 In all cases, when the reason for separation ceases, the common conjugal life is to be restored, unless otherwise provided by ecclesiastical authority.

Can. 1154 When a separation of spouses has taken place, provision is always, and in good time, to be made for the due maintenance and upbringing of the children.

Can. 1155 The innocent spouse may laudably readmit the other spouse to the conjugal life, in which case he or she renounces the right to separation.

CASES CONCERNING THE SEPARATION OF SPOUSES

Can. 1692
§1 Unless lawfully provided otherwise in particular places, the personal separation of baptized spouses can be decided by a decree of the diocesan Bishop, or by the judgment of a judge in accordance with the following canons.

§2 Where the ecclesiastical decision does not produce civil effects, or if it is foreseen that there will be a civil judgment not contrary to the divine law, the Bishop of the diocese in which the spouses are living can, in the light of their particular circumstances, give them permission to approach the civil courts.

§3 If the case is also concerned with the merely civil effects of marriage, the judge is to endeavor, without prejudice to the provision of §2, to have the case brought before the civil court from the very beginning.

Can. 1693
§1 The oral contentious process is to be used, unless either party or the promoter of justice requests the ordinary contentious process.

§2 If the ordinary contentious process is used and there is an appeal, the tribunal of second instance is to proceed in accordance with can. 1682 §2, observing what has to be observed.

Can. 1694 In matters concerning the competence of the tribunal, the provisions of can. 1673 are to be observed.

Can. 1695 Before he accepts the case, and whenever there appears to be hope of success, the judge is to use pastoral means to induce the parties to be reconciled and to resume their conjugal life.

Can. 1696 Cases of separation of spouses also concern the public good; the promoter of justice must, therefore, always intervene, in accordance with can. 1433.

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