Reprinted with permission from the author from Darshan, a publication of Drisha Institute.
A number of marriage protection agreements have been proposed, and three seem to overcome the halakhic problems of kinyan devarim [an agreement with no substance], asmakhta [a penalty agreement], and ones mamon [financial compulsion] described in the previous article.
Binding Arbitration Agreement
The most basic of these is a binding arbitration agreement in which husband and wife agree to adjudicate get [bill of divorce]-related issues in a named beit din [rabbinic court]. If either party fails to appear before the beit din, he or she is held in contempt of court. Rabbi J. David Bleich published such an agreement in the Journal of Halacha and Contemporary Society, and Rabbi Moshe Feinstein [one of the most respected and influential 20th-century Orthodox thinkers] found no halakhic problem with this type of agreement.
A variation of this agreement includes a clause making the recalcitrant party liable for all costs, including attorney’s fees reasonably incurred by the aggrieved party in order to secure the other’s appearance at the beit din. In The Rabbinate as Calling and Vocation, Rabbi Haskel Lookstein writes that a document based on this concept was approved by Rabbi Joseph B. Soloveitchik [like Feinstein, a major figure in 20th-century Orthodox Judaism]. This addition is based on Shulhan Arukh Hoshen Mishpat 14:5 (see also Pithhei Teshuva, Hoshen Mishpat 14:12).
Signing this kind of agreement also serves to strengthen the system of Jewish courts both because the parties can be forced to come before a beit din in a situation when halakhah would require them to do so anyway and because the courts will enforce the ruling of the beit din selected by the parties.
Although a binding arbitration agreement has proved helpful in some cases, it fails to pressure the recalcitrant party into actually complying with the instructions of the beit din. Binding arbitration agreements are best used in combination with other types of prenuptial agreements.
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