On the Compelling Need for an Effective Prenuptial Agreement
Posted on 7:12AM October 05, 2004 | Email This
Reprinted with permission from Rabbinics Today, 2:3, December 1993--------------------------------------------------------------------------------
Many of my rabbinic colleagues have told me that they are reluctant to use a prenuptial agreement related to assurance of issuance of a get upon dissolution of the marriage by civil divorce. I am deeply dismayed by this reluctance, albeit I have some understanding of why such reticence exists. Why is a prenuptial agreement necessary?
The inability of Jewish courts in the United States to compel a husband to issue a get to his wife, because of lack of jurisdiction and enforcement powers, has resulted in a powerful advantage held by the husband. Unfortunately, some husbands, often cruelly and unethically advised to do so by their attorneys, choose to exploit this advantage by using the issuance of the get as leverage for the achievement of other purposes, such as monetary extortion or reordering child custody arrangements.
Great Jewish minds have devoted not insignificant amounts of energy to produce a solution to this problem. As the dust settles after almost forty years of deliberation and debate, both Orthodoxy and the Conservative movement have elected a common approach, albeit in differing frameworks. The Conservative movement, under the guidance of the late Rabbi Saul Lieberman, added a clause to the ketubah which would make an order of a rabbinic court enforceable in civil courts in the manner of binding arbitration.
Orthodoxy, with great fanfare rejected this particular device, but affirmed the approach of using the American civil courts as the means of resolving this problem. Thus, Agudath Israel, under the leadership of their Mo'etzet Gedolei HaTorah, went the legislative route and successfully supported the passage of the Get Statute in the State of New York. The Rabbinical Council of America, under the leadership of the late Rav Yosef Dov Ha-Levi Soloveitchik, elected rather the use of a prenuptial agreement which would bind the parties through their own prior consent to be subjected to significant financial loss through their failure to issue a get in a timely fashion. The struggle within Orthodoxy to fine tune the prenuptial agreement into a document capable of being assented to by virtually all Torah circles, has taken almost fifteen years, and has left many sacrificed agunot by the wayside of life during the struggle. This has been an infuriating and almost intolerable time for sensitive Orthodox Jews to live through. But it now appears, finally, that a document having the consensus of most Orthodox halakhic leaders is truly at hand.
Rabbi Mordechai Willig, of Yeshiva University, has, with the timeless strength of great Jewish leaders, shepherded through the hands and hearts of the leadership of the halakhic community, a new prenuptial document. The documents have been approved for use by Ashkenazic and Sephardic scholars in Israel, by a very diverse set of Haredi and American Orthodox poskim here in the United States. Whether one takes the attitude of "its's about time," or of "patience has finally been rewarded," the time seems now to be at hand for the universal orthodox adoption of the use of these documents.
The next and most crucial step in the resolution of this problem now lies in the power of the rabbinate. If we, all of us together, can interpret the importance of, and insist on the use of, these documents at every Jewish marriage, then we will rid Jewish society of this scourge which now afflicts our moral condition as a people. This is one time when our united energies are essential. Only when every Jewish couple has such a document will those who will need it be protected.
I understand the sense of reluctance which many rabbis have about discussing divorce and possible extortion in the midst of premarital counselling. Yet, is not the entire ketubah precisely a contract in contemplation of divorce or death of the husband? And people hang illustrated texts of the ketubah over their beds! The point is that the very universality of the ketubah allows people to accept it without feeling that they are making a negative statement about the expected longevity of their marriage. The same can eventually be true of these prenuptial documents.
What, I believe, will ease the process of use of these documents is their use in place of the traditional tena'im, which are now in any case almost always used only to increase the number of honors available for distribution at the wedding. We ought also transfer over to these new tena'im the custom of the active presence of the mothers, either still breaking a plate, or performing some other act indicating the protective responsibility of mothers.
As rabbis, we only rarely have the opportunity to shape a new and universal Jewish practice while simultaneously helping to prevent Jewish immorality. Such a joint opportunity is now before us. Our creativity can mold the practice, our capacity as teachers and leaders will be tested in the process of convincing this coming first generation of users to be comfortable with the process, and our ethical vigor will leave a lasting mark on all future generations of Jews.
