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.

By Viva Hammer

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.

 

The 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.

 

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 getin 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 theCode of Jewish Law, indicates that the concern that ones mamon constitutes a form of duress that renders a get invalid is really a stringency.

 

However, since even the Rema and Taz concede that this is valid only post facto and there are authorities who disagree with their conclusions, agreements must be drafted that avoid the possibility of creating an onesmamon.

 

The above discussion makes it clear that the halakhic parameters in which these agreements are drafted are very complex. A competent and recognized beit din will not execute a get if the husband is cooperating in the process as a result of an improperly drafted marriage protection agreement. And if for some reason a get results from the enforcement of a halakhically invalid agreement, the get will be worthless, and the parties will still be considered husband and wife.

 

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. She can be reached at vivahammer@aol.com.

 

Drisha Institute is a forum for developing the next generation of Jewish educators and leaders. The world's first center for women's advanced study of classical Jewish texts, Drisha offers full-time learning programs and summer institutes for women, programs for high school girls and pre-bat-mitzvah girls, as well as continuing education for women and men. Visit www.drisha.org or call 212.595.0307.