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The Halakhic Sources and Background of the Prenuptial, by Rabbi Mordechai Willig

Posted on 3:34PM October 07, 2004 | Email This

Prenuptial Agreements - Introduction
for Officiating Rabbi

by Rabbi Mordechai Willig

I. Preface

The idea of a pre-nuptial agreement which encourages the parties to appear before a Bet Din in the unfortunate event of marital strain or break-up is not new. Over 300 years ago, the Nachlat Shiva included such a provision in his formulary, incorporating it into the standard tena'im, conditions entered into before marriage.1 The author of the Nachlat Shiva, a disciple of the Taz, cited authorities who attribute this provision to Takanot Shum, instituted in Germany over 500 years ago.2 Today's poskim differ on the specifics of the monetary obligation which should be employed in such an agreement. Some prefer a conditional obligation of support in the event of marital separation, similar to the form proposed by the Nachlat Shiva.3 Others feel that an unconditional obligation running from the date of the marriage should be prepared. The poskim also disagree about the size of the obligation.4

The primary obstacle to the widespread use of pre-nuptial agreements appears to be the reluctance of rabbanim to introduce innovations to the institution of marriage. Thus, there is even a widespread reluctance to employ a simple arbitration agreement, referring future marital disputes to a particular Bet Din, an agreement which is halakhically non-controversial.5 Such an agreement could avoid the frequent bitter battles over which Bet Din should hear a particular dispute. A legally binding arbitration agreement would also solve the problems of one party applying to the secular courts to gain an advantage over the other in marital disputes.

The precedent of centuries ago should allay the fears of rabbanim concerning innovation. In practice, the need for a prenuptial agreement is greater now, when there is no centralized Bet Din system, than it was in the Nachlat Shiva's time. Moreover, the secular courts are no longer systematically hostile to Jews and are now a practical option for unhappy couples. Finally, the role of Bet Din is restoring marital harmony (shalom bayit) to which the Nachlat Shiva also refers, should not be ignored at a time of high divorce rates.

Self interest should also prompt rabbanim to reconsider their reluctance to use a pre-nuptial agreement. The congregational rabbi is often at the center of a controversy over which Bet Din will consider a case of marital breakup. The problem of the recalcitrant spouse is also a source of anguish for the rabbi, who shares the pain of iggun and is frustrated by, and all too frequently attacked for, his inability to solve it.
The form directly address and ameliorates all of these problems, even if it cannot solve all of them once and for all. If it is widely used, it will substantially diminish the occurrence of iggun and facilitate the halakhically acceptable adjudication and resolution of marital strife cases in general.

II. Arbitration Agreement
There are two separate themes to this agreement, which has been simplified into a single document, to be executed by the parties. One is an arbitration agreement, which binds the parties to accept rabbinic arbitration in front of the Beth Din of America in cases of serious marital disputes. It is signed by both the future husband and wife and is the heart of a legally enforceable arbitration agreement. The gist of this section of the agreement is the binding acceptance of rabbinic arbitration before a Bet Din of marital disputes when the husband and wife are not living together.
The optional section (Section IV) concerns the scope of the Beth Din of America's authority. If no options are chosen then the authority of the Bet Din is limited to the Get, the Ketubah and the Tena'im.
If the parties agree, the document may include other issues in the arbitration agreement (e.g., support, custody, or the division of property; the first and fourth clause directs that matters be resolved according to Jewish law without any other requirements.
Some attorneys have objections to the inclusion of monetary disputes (e.g., property settlements, alimony, child support) in the arbitration agreement, for the current secular laws of equitable distribution and maintenance or community property, they claim, will generally result in larger financial settlements for women than does enforcing the provisions of Jewish law. Halakhically, however, resolutions of marital property disputes are within the jurisdiction of a Bet Din, unless that Bet Din permits the parties to resolve them in court. It does not follow from the fact that Bet Din is the appropriate tribunal to hear marital property disputes that the parties cannot themselves agree to financial arrangements other than those prescribed by the halakha in the absence of an agreement. If both parties agree in advance that Bet Din should decide their financial affairs according to a specified law of a designated secular jurisdiction, the Bet Din will do so. We have included an optional paragraph in the agreement which requires the use of equitable distribution (the most commonly used form of property division in America) or communal property (used in California and a number of other states) in divorce cases. Acceptance of an agreement about financial matters is surely preferable to the wholesale exclusion of monetary disputes from the arbitration agreement which will result in their resolution by the secular courts.The second part of this document details the husband's obligation of support in the event that the couple are living apart from one another, which this agreement sets at $150 per day, which is to be adjusted annually to reflect changes in the specified Consumer Price Index,
Although there are some who might prefer to omit this obligation entirely, for halakhic or pragmatic reasons, this agreement does not give them that option. Those who want such an agreement (i.e, just an arbitration agreement) should contact the Orthodox Caucus or the Beth Din of America. A prospective husband may refuse to accept this support obligation, but be willing to accept the arbitration agreement. If so, and efforts at persuading him to accept this obligation fail, he should still be encouraged to sign the arbitration agreement. If the husband later refuses to abide by the decision of the rabbinic arbitrators (“Bet Din”) reached either with his participation or after his default, the Bet Din's judgment would be enforceable in the secular courts as an arbitrator's decision.
Still, there is a substantial advantage to having the support obligation as part of this agreement and for this reason, it is included in this text without option. The presence of an independent financial liability will typically enable the Bet Din to expedite resolution of all marital disputes, either to effect reconciliation or to terminate the marriage in a halakhically acceptable way. A husband is less likely to ignore a Bet Din when an obligation of a specific sum of support accrues automatically than when the Bet Din must decide whether to impose one and what its amount should be.

Footnotes:

1. Naalas Shiva, ch. 9

2. Ibid. Sub-paragraph 14

3. Moriah Iyyar 5748, quoting Rabbi Zalman Nehemiah Goldberg.

4. See Rabbi J. David Bleich, Or ha-Mizra, Tishri 5750.

5. R. Moshe Feinstein, Iggeros Moshe, Even ha-Ezer 4:107