Religious Marriage Contracts as Prenuptial Agreements?

Many Americans are unfamiliar with the idea of a religious marriage contract: essentially, it’s an agreement that two people of shared faith write with the help of their local religious leader that lays down the ‘rules’ of their marriage. The most commonly-seen are the Jewish and Islamic variations on the theme. One of the sections of these two religious marriage contracts is the “what happens in case of a divorce” section — precisely equivalent to the legal document called a prenuptial agreement.

So if two adults above the age of consent write and sign a religious marriage contract, shouldn’t the legal system acknowledge the contract and take it into account should the couple get legally married and then divorced?

Well…it’s complicated.

What Makes a Marriage?
In order to be married in the eyes of the State of Michigan, you have to do more than just sign a contract. First, you must obtain a marriage license from a county clerk. Then, you must have your marriage ‘solemnized,’ which is something that can only be done by a judge, a mayor, a county clerk, or an ordained minister of your religion (who must then turn in the marriage forms properly.) Then, the solemnization must be recorded by the county by having your signed marriage license submitted, which results in you receiving a marriage certificate. If all three of these steps are not duly completed, you are not actually married in the eyes of the law, no matter what religious contracts you have signed.

Solemnizing an Existing Religious Marriage
Of course, it is completely possible (and in fact perfectly normal) for two people who have already written and signed a religious marriage agreement to then go through the process outlined above. At that point, they are legally married and separately, they have signed a contract that provides the ‘rules’ that they agree to live under.

Divorce in a Solemnized Religious Marriage
Here’s where the law gets sticky: the court is under no obligation to adhere to the “upon-divorce” section of your religious marriage agreement. Thus far, in the cases where an existing religious divorce contract has come up, it has been discarded by the court because it was not entered into evidence at the beginning of the proceeding. The court took that as a sign that the couple wasn’t really all that fixated on adhering to the contract in the first place.

But there’s not actually any law or even case precedents in place that would inform a court of what to do if a couple did enter such an agreement into evidence right at the beginning of a trial. It could be that the court would feel an obligation to adhere to it as closely as was reasonable, or it may be that the court would decide to discard it regardless of the wishes of the couple. (And most certainly, if the court believed that the agreement was unreasonable, especially in its effect on the well-being of a child, they would discard it either way.)

So in the end, if you expect to have the ‘upon-divorce’ section of a religious marriage agreement given consideration by the court, you’re going to have to go through the effort of having that section written up as an independent prenuptial agreement. If you’ve thought about it and decided that path is right for you, call Gucciardo Family Law today at 248-723-5190. We’re here to help.