Chancellor’s Expert Opinion, defacto Prenuptual Agreement
- Posted by Mary's Advocates
- On July 30, 2004
- canon, civil, Constitution
In August, 2004, 13 months after a Plaintiff filed in the civil court, a Defendant submitted a pleading to the civil court asking that jurisdiction be transferred in a divorce case to the Roman Catholic Church.
The expert opinion shown here was provided to educate the civil judge about the pre-marital agreement to abide by the Roman Catholic Code of Canon Law. All couples who marry in the Catholic Church are agreeing to be married in accordance with the laws of the Roman Catholic Church, which specifies grounds and procedures regarding separation and divorce.
In this case, the appellate civil court decided that waiting 13 months was too long after being cited in civil action in domestic relations court, to submit Defendant’s claim. The appellate civil court did not decide that the claim had no merit.
AFFIDAVIT OF BENEDICT T. NGUYEN,
having been duly sworn according to the laws of Wisconsin, states the following is true and correct according to the best of his own personal knowledge, information, and belief:
1. I presently reside in the city of […], Wisconsin.
2. I am an expert in the area of Catholic canon law and currently serve as the Chancellor of the Catholic Diocese of La Crosse, WI, and a canon lawyer for the Tribunal of the Diocese of La Crosse.
3. My experience in education is the following:
d) Master of Theological Studies (M.T.S.), The University of Dallas, Dallas, TX.
e) Pontifical Licentiate in Canon Law (J.C.L.), The Catholic University of America, Washington, D.C.
4. 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,
5. 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.
6. 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).
7. 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.
8. It is undisputed that both Plaintiff […] and Defendant […] were practicing Roman Catholics prior to and at the time of their marriage ceremony, and continue to profess to be practicing Roman Catholics at present time.
9. It is also undisputed that Plaintiff and Defendant explicitly desired and intended to be married within the Roman Catholic Church and to assume the rights and duties connected with being married within the Roman Catholic Church. This is made evident by the fact that Plaintiff and Defendant:
a) Sought and underwent marriage preparation within the Roman Catholic Church: specifically at [NAMED} Catholic Church in [CITY];
b) In fact completed marriage preparation sessions according to the Marriage Policy of the Diocese of [NAMED];
c) Were in fact presented with the Roman Catholic Church’s understanding of marriage, as evidenced by the Diocese of [NAMED] Marriage Policy, Chapter VI, pg. 17, and their agreement to the Diocese of [NAMED] Declaration of Matrimonial Consent;
d) Were actually subsequently married according the Rite of Marriage of the Roman Catholic Church, officiated by a Roman Catholic Priest.
10. It is also undisputed that Plaintiff and Defendant did in fact contract marriage within the Roman Catholic Church through the proper Roman Catholic ecclesiastical form (Rite of Marriage) and thus were introduced into the ecclesial order of spouses, pursuant to Catechism of the Catholic Church, No. 1631.
11. Therefore, given the above points in law and in fact, it is concluded that Plaintiff and Defendant understood the rights and duties of marriage within the Roman Catholic Church and sought marriage within the Roman Catholic Church, which de facto includes the assumption of the rights and duties of the order of spouses (cf. Catechism of the Catholic Church, No. 1631), including those of separation of the spouses pursuant to Code of Canon Law, canons 1151-1155 and 1692-1696.
12. Therefore, it is also concluded that Plaintiff and Defendant, by virtue of their seeking and actually entering into marriage within and according to the laws and rites of the Roman Catholic Church, have de facto an antenuptial agreement to adhere to the rights and duties proper to the order of spouses, as governed by the canonical laws of the Roman Catholic Church, including those of separation of the spouses pursuant to Code of Canon Law, canons 1151-1155 and 1692-1696.
Affiant further sayeth naught.
Benedict T. Nguyen July 30, 2004
State of Wisconsin
County of La Croose
Sworn and signed before me on this 30th day of July, 2004, by Benedict T. Nguyen having personally appeared before me, the undersigned Notary Public, and known to me or satisfactorily proven to be the person whose name is subscribed to the above Affidavit. I attest that the principal appears to be of sound mind and not under or subject to duress, fraud or undue influence.
My Commission Expires: 4-27-08
Susan K. Vlasak