Three Prenuptial Agreements That Just Might Work

Three prenuptial marriage protection agreements have been accepted by Orthodox rabbis as fulfilling halakhah (Jewish law).

By Viva Hammer

In her previous article, "Prenuptial Agreements--A Good Solution to a Difficult Problem," the author described potential halakhic challenges with respect to marriage protection agreements: They may not be overly vague or be based on the simple payment of a fine or financial compulsion. 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.

Tosefet Mezonot Agreement

The second type of prenuptial agreement is Rabbi J. David Bleich's tosefet mezonot [additional support], which appears in The Rabbinate as Calling and Vocation. This agreement obligates the husband as soon as he enters into the marriage to pay his wife 200 dollars every day "throughout the period during which she does not share his board until a judgment is issued by a beit din declaring that she is not prevented from marrying in accordance with the law of Moses and Israel because of him."

 

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.

 

This agreement has received the approval of many halakhic authorities such as Rabbi Ovadia Yosef, the former Sephardic Chief rabbi of Israel; Rabbi Chaim Zimbalist of the Tel Aviv Beit Din; Rabbi Yitzchak Leibes; Rosh Beit Din of the Rabbinical Alliance of America; Rabbi Gedalia Schwartz, Rosh Beit Din of the Rabbinic Council of America; and Rabbi Herschel Schachter, Rosh Kollel of the Rabbi Isaac Elchanan Theological Seminary. On June 15, 1993, the Rabbinical Council of America passed a resolution urging its members to use the agreement at every Jewish wedding in which they officiate. Since then, the agreement has been updated and is available on the website of the beit din of America.

 

Like the tosefet mezonot agreement, this arrangement protects only the wife. Nonetheless, the recent decision of the Rabbinical Council of America promises to go a long way in eliminating the problem of igun.

 

Many great halakhic authorities approve of using marriage protection agreements. Rabbis who use these agreements have reported that their use has actually prevented the incidence of igun ["chained" wives, who have not received a get [Jewish bill of divorce] from their husbands]. Despite this, there is sometimes opposition among both rabbis and lay people to the use of marriage protection agreements. This opposition is often not on halakhic grounds, but on personal grounds. The decision to sign a marriage protection agreement could be seen to imply an expectation that the marriage will end in divorce or a suspicion that the bride and groom are capable of victimizing a spouse.

 

This is why all of us, rabbis and lay people alike, must work to ensure that marriage protection agreements become standard procedure at every Jewish wedding. Once signing a marriage protection agreement becomes a communal decision, the personal burden is removed from individual men and women. Signing the agreement as a standard part of the Jewish wedding affirms the individual's concern for the welfare of the entire community. By signing a halakhic prenuptial agreement, the husband and wife are helping to eliminate igun from our midst.

 

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.

 

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