Prenuptial Agreements: A Good Solution to a Difficult Problem

Prenuptial marriage protection agreements that accord with halakhah, or Jewish law, can help secure a woman's freedom to remarry in case of a divorce.

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This article explains marriage protection agreements as well as potential halakhic problems that may invalidate them. A subsequent article describes three such agreements that accord with Jewish law. Reprinted with permission from the author from Darshan, a publication of Drisha Institute.

An escalating problem in the Jewish community is the refusal of men and women to cooperate in securing a religious divorce, or get. Although a civil divorce can be obtained by judicial decree, whether or not both the husband and wife agree to the dissolution of the marriage, a get requires the free will of both parties. As a result, the get often becomes a weapon in the hands of an individual who wants to manipulate the divorce settlement in his or her favor or who seeks to act out feelings of bitterness against his or her spouse.

prenuptial agreementThe use of the get as a weapon was hardly intended by the Torah and could indeed be avoided in a system of religious legal autonomy. In such a system, any individual who failed to comply with an order of a rabbinic court, or beit din, could be ostracized from the Jewish community. Today, however, the beit din’s powers are rarely invoked, and the beit din’s ability to influence a person’s behavior is minimal.

The result is a growing number of couples whose marriages have ended for all practical purposes, but who do not obtain a get because of the recalcitrance of one of the parties to the marriage. This situation is known as igun, and it has potentially devastating consequences for Jewish life.

Igun threatens the sanctity of family and marriage, the cornerstones of Judaism, in a number of ways. Foremost is the pain and suffering of those who are divorced civilly but not halakhically (halakhah means Jewish law). Unable to remarry, they are prisoners of a failed marriage and hostages of an unyielding spouse.

Additionally, there is the real danger that an individual in such circumstances will remarry anyway, despite the strict halakhic prohibition against doing so. This is particularly a problem for the woman, who is biblically forbidden to marry more than one man. If she is not halakhically divorced from her first husband, her second marriage is considered adulterous. Any child born of this second union will be considered a mamzer [child of an adulterous woman], forbidden to marry anyone but another mamzer or a convert. This explains why the vast majority of igun cases involve recalcitrant husbands rather than recalcitrant wives. Because men are biblically–though not rabbinically–permitted to marry more than one wife, men with recalcitrant wives are often able to find alternative halakhic solutions.

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Viva Hammer is a lawyer in Washington, D.C. She is finishing a book on Jewish family size.

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