Three Prenuptial Agreements That Just Might Work
Three prenuptial marriage protection agreements have been accepted by Orthodox rabbis as fulfilling halakhah (Jewish law).
This agreement avoids the pitfalls of asmakhta by making the obligation begin as soon as the marriage is contracted, so that it is no longer a contingent agreement. Furthermore, the problem of ones mamon is avoided as this agreement simply extends the general obligation of a husband to support his wife, an obligation that already exists under halakhah. The additional amount of support is referred to as tosefet mezonot.
Rabbi Bleich writes in the Fall 1992 issue of Tradition that this agreement was approved by the major 20th-century rabbinic figure Rabbi Yaakov Kaminetzky. Rabbi Herschel Schachter, Rosh Kollel [head] of the Rabbi Isaac Elchanan Theological Seminary, also believes that this agreement is halakhically valid.
While this agreement is unilateral, protecting only the wife in the case of a recalcitrant husband, it does address the majority of igun [chained-wife] cases.
Rabbi Zalman Nechemia Goldberg's Agreement
The latest agreement was designed by Rabbi Zalman Nechemia Goldberg of the Jerusalem Beit Din. This document consists of two separate contracts, the first of which is a binding arbitration agreement. The agreement includes a clause that makes the recalcitrant party liable for all costs incurred by the other party in securing compliance with the beit din's directives.
The second contract obligates the husband to pay his wife 100 dollars a day (which is linked to the cost of living) if they do not continue domestic residence together. This contract differs subtly from the tosefet mezonot agreement, in that the monetary support is not an extension of the husband's marital obligation to support his wife, but is a separate financial arrangement. In addition, unlike the standard obligation of spousal support, this obligation continues even if the wife has taken the step of separating from her husband against his will (she is called a moredet) and even if she earns her own living (ma'aseh yadayim).
The designers of this agreement assert that the obligation is not a penalty for not appearing at the beit din or not complying with its decisions. Rather, it is an estimate of the expenses that are incurred when a separate household is established.
The combination of two factors eliminates the problem of asmakhta. First, the obligation becomes binding immediately upon entering into the agreement. Second, the agreement is concluded with a kinyan suddar, a ritual halakhic manner of demonstrating seriousness of intent, in the presence of a judicial body that the groom explicitly acknowledges as an esteemed rabbinical court (beit din hashuv; see Shulhan Arukh, Hoshen Mishpat 207: 14-15). The kinyan suddar consists of the rabbi handing the husband a utensil such as a pen and the husband subsequently lifting the utensil above his head. Ones mamon is avoided by not linking the monetary obligation to the giving of the get. See Torat Gittin cited in Pithhei Teshuva, Even Haezer 134:11.
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