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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The tragedy of individuals trapped in iguncasts Judaism in a negative light. An individual unable to obtain a get often harbors resentment against the halakhic system. And the media is quick to exploit the story.

Marriage Protection Agreements--An Old Idea

For many years now, there has existed a halakhically sound mechanism for preventing the problem of igun. It involves the use of marriage protection agreements, also known as halakhic prenuptial agreements, before every Jewish wedding. This approach has strong precedent in the Nachalat Shiva 9:14 [a 17th-century work that contains the correct texts of various halakhic documents], which discusses the German custom of drafting of tenaim (legal conditions of marriage) with a clause which stated that in the case of matrimonial discord a certain amount of money be transferred to the woman as mezonos [support] until the husband and wife came before the rabbinic authorities to resolve the couple's dispute.

The idea of using halakhic prenuptial agreements throughout the community was first suggested by the 19th-century German rabbi, Rabbi David Zvi Hoffmann, in his collection of responsa, Melamed Leho'il (III:22). In 1954, Israel's Chief Rabbi Yitzhak Isaac Herzog lent emphatic support to the idea. In his work on halakhah in a Jewish state, Tehuka l'Yisrael al pi Halakha, Rabbi Herzog wrote that a halakhic prenuptial agreement should become a standard component of every Jewish wedding.

In the United States, a great deal of scholarship has been dedicated to drafting and making legally and halakhically binding modern versions of this old concept. The most prominent scholars in this field are Rabbi J. David Bleich, Rabbi Judah Dick, and Rabbi Mordechai Willig.

Potential Halakhic Problems

Drafting a halakhically acceptable agreement is a complex task. A simple written promise to give a get in the case of civil divorce is halakhically unacceptable. Halakhah considers such an agreement a kinyan devarim, an agreement that has no substance because it is overly vague. In Jewish law, an agreement is enforceable only if there is an exchange of tangible monetary consideration.

Introducing a defined monetary element to an agreement eliminates the issue of kinyan devarim. Nevertheless, a simple agreement to pay a fine in case of refusal to give or receive a get is also unacceptable. Halakhah does not recognize as valid a penalty agreement, or asmakhta. The essential problem with an asmakhta is the assumed lack of intent, or gemirat da'at, on the part of the concerned parties, who never really expect to have to pay the fine. Halakhah assumes that people generally do not consider themselves obligated when the liabilities are contingent and indefinite.

Even if a monetary penalty that avoids the problem of asmakhta can be devised, there remains the problem of ones mamon. With a few exceptions, a get must be given with the free consent of both husband and wife. According to most authorities, duress of a financial nature, or ones mamon, would render a resulting get invalid. However, both the Rema and the Taz (critical 16th- and 17th-century Jewish legal authorities whose commentaries are printed in volumes of the Code of Jewish Law), as well as the Hazon Ish (Shulhan Arukh, Even Haezer 99:5), rule that a get is valid ex post facto (b'diavad) if it was executed as a result of self-induced monetary duress. Indeed, the Pithei Teshuva, a digest of responsa also appearing in the Code of Jewish Law, indicates that the concern that ones mamon constitutes a form of duress that renders a get invalid is really a stringency.

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Viva Hammer

Viva Hammer is a tax attorney in Washington, D.C. She was the co-founder and director of the Wedding Resource Center, which was established with the goal that no Jewish marriage take place without a Marriage Protection Agreement. She has written for The Washingtonian, Lilith, Jewish Action, Los Angeles Jewish Journal, and many other places.