In my previous post, I discussed the Heskem L'khavod Hadadi (The Agreement for Mutual Respect), which is being promoted by several organizations to help solve the problem of recalcitrant spouses in divorce proceedings. This time, I'll write about two other agreements that are similar in concept, but different enough that I ought to point out the differences, and then I'll give you my two cents.
(This agreement can be downloaded from some other sites as well, but I don't see a point to put all the links here - you can look at my previous post.)
The agreement begins with some paragraphs on financial matters and equal distribution of property, in accordance with the Israeli civil law. In the Heskem L'khavod Hadadi, these matters are addressed in the addendum.
Similar to the Heskem L'khavod Hadadi, the recalcitrant spouse must pay a monthly payment until the get is given/accepted (man agrees to give, woman agrees to accept). The amounts defined are slightly different, but not significantly. For these payments to be obligatory, one of the three following conditions must be in place: Either the couple must be living apart for at least twelve months; the beit din has determined that there is no chance for reconciliation or has ordered one of the parties to give/accept a get; or the breakdown in the marriage is irreparable.
The primary difference between this agreement and the Heskem L'khavod Hadadi is the manner in which it is decided that reconciliation is not possible. The second condition is what bothers me most in this agreement. The beit din is the last place I'd look for someone to say that a marriage is over. A recalcitrant husband just has to say the words "shalom bayit" and he has to be practically a serial murderer before the beit din would obligate a divorce, in spite of the husband's request to reconcile. I only need to remind you of the case of the husband who was guilty of sexually molesting his 15 year old daughter. So that condition is worthless. The third condition, the intent of which is the same, is not elaborated on. Who decides that the marriage is irreparable, and on what basis? The agreement does not specify. Therefore, the only condition that is clearly defined and feasible to happen is the twelve month separation. Therefore, for anyone who thinks it is important to try to reconcile before proceeding with divorce, the Heskem L'khavod Hadadi is the better formulated agreement.
I wrote above that the amounts of the monthly payments to be made by the recalcitrant spouse according to Yad L'Isha's prenup are not significantly different from the amounts in the Heskem L'khavod Hadadi. However, there is one point that bothers me. These amounts are not equal for the man and the woman. While the man would have to pay 40% of his monthly salary, with a minimum of 3000 NIS, the woman would have to pay 40% of her monthly salary, with a minimum of 2000 NIS. No doubt, the authors of this agreement took into consideration that more often that not the woman's salary is a lower salary. I'm in favor of equality. It is possible that the minimum of 3000 NIS might pressure the women more, because relative to her income it is more. But remember, the real point in this payment is not to pay maintenance. The real point is to "encourage" someone to agree to divorce. There is no problem of a coerced divorce if the woman is the recalcitrant spouse. If there were no concern of a coerced divorce (see my quote from Maimonides about that in my previous post), I'd say the higher the payment the better! We are out to accomplish something here - ending a marriage that is no longer good. I'm in favor of equal rights and equal responsibilities. Every situation is different. If a couple wants to take into consideration their different circumstances, including differences in earning potential, in this agreement, they can consult with a lawyer and a halakhic authority and tailor their prenup to their requirements. I don't see the necessity of doing that when the goal is not to actually pay. In any event, it is essential that a couple consult with such experts before signing this agreement.
Unlike the Heskem L'khavod Hadadi, Yad L'Isha's agreement does not address child custody and support issues. In my opinion, this is a significant omission that needs to be addressed, and a couple who would use this agreement should amend it to include this matter.
To sum up, in my opinion, this agreement is not as well-formulated as the Heskem L'khavod Hadadi (for which I have criticism, also - not to worry - as I do for all of the prenups that are based on the same concept), and therefore I'd like to suggest that Yad L'Isha remove it from their website and replace it with the Heskem L'khavod Hadadi, unless they can offer some explanation of what advantages their own prenup has. The Heskem L'khavod Hadadi has achieved greater momentum as far as its publicity and support from various organizations are concerned, so why confuse the public? Let's avoid decision fatigue.
The (Israeli) Conservative Movement's Prenup Agreement
Here we find a breath of fresh air! In the second "whereas" (in the manner that legal contracts are written) it states that the Conservative approach to marriage, which the couple has chosen, is based on their belief in equality of the genders and the right of each one to be married to whom they wish. Breakdown of a marriage should not result in a woman remaining an aguna, because of the refusal of her spouse to give her a get.
The agreement itself is also based on the principle of monthly payments by the recalcitrant spouse, as seen in the Heskem L'khavod Hadadi. The amount is not specified, and, as always, the couple should consult with legal and halakhic authorities. There is also a paragraph requiring an attempt at marriage therapy, but there is no paragraph addressing custody and support of children. This should be added.
Two possibilities are presented with this agreement. One possibility is that the couple has a civil marriage (in addition to the Conservative ceremony), in which case, presumably, they register in Misrad HaP'nim (see my previous post for my thoughts on that, and you can read earlier posts, as well - by now you must know what I think about doing that). If that is the case, then any divorce proceedings would have to be in a beit din (of the Israeli rabbinate). Therefore, the halakhic and legal advice that the couple obtains must be with people who are familiar with those batei din.
The second possibility is that the couple do not register in the Misrad HaP'nim. Such a couple is referred to as yedu'im batzibbur (literally, known in public, what is termed "common law marriage"). I urge such couples who plan on having this status - or even just think about it - to check with the New Family organization to find out all of the latest and greatest rights of such a relationship. The information provided on the form for the prenup is not up-to-date in this matter. These rights are improving all the time in Israel and I think this is the best way to go! If a couple chooses this route, they should consult with a Conservative halakhic authority, who should explain the implications of marriage (and divorce) in the manner of the Conservative movement. I am under the impression that if the prenup agreement does not lead to the desired result, if one party wishes to divorce, then the Conservative beit din will annul the marriage (hafka'at qiddushin).
Therefore, it would be wise for any couple who chooses to marry in a Conservative ceremony not to register in Misrad HaP'nim. They will have a traditional and halakhic (yes, I maintain that their ceremony is halakhic) marriage (and therefore, with all of the reservations that I have about qiddushin), but at least better protection against get refusal than is found in the (Orthodox) Israeli rabbinate.
In summary, if I had to choose one of the three prenups based on substantial monthly payments by the recalcitrant spouse that are offered, I would opt for the Conservative one, marry in a Conservative ceremony, and not register in Misrad HaP'nim.
But if a couple insists on marrying using the services of the Israeli rabbinate (you do know already what I think about this, don't you?), then use the Heskem L'khavod Hadadi. Yad L'Isha should remove their agreement, so that there is a standard prenup of this type. There are enough concerns about the effectiveness and acceptance of this type of agreement, without confusing the matter by having multiple versions. This does not mean that couples should not tailor it to their needs, but it should be based on a standard format.
If I am already raising the matter of "concerns", I ought to tell you that one reader raised the question of the attitude of the Israeli batei din to such agreements. Based on her personal experience, there are dayyanim who see any such prenup as a cause to make any future divorce a coerced divorce, and thus invalid. I plan on raising this issue with the various organizations that are promoting the agreement. It is fine that a civil court will order the recalcitrant spouse to pay, because this agreement is seen by the civil court as a valid monetary contract, but what happens when the couple appears in the beit din to arrange the divorce?
In my next post I'll discuss the prenup offered by the Center for Women's Justice. I'll also say a few words about a prenup that is on Mavoi Satum's site, not because I think it is of much importance, but because it is kind of nice.
I wrote above that the amounts of the monthly payments to be made by the recalcitrant spouse according to Yad L'Isha's prenup are not significantly different from the amounts in the Heskem L'khavod Hadadi. However, there is one point that bothers me. These amounts are not equal for the man and the woman. While the man would have to pay 40% of his monthly salary, with a minimum of 3000 NIS, the woman would have to pay 40% of her monthly salary, with a minimum of 2000 NIS. No doubt, the authors of this agreement took into consideration that more often that not the woman's salary is a lower salary. I'm in favor of equality. It is possible that the minimum of 3000 NIS might pressure the women more, because relative to her income it is more. But remember, the real point in this payment is not to pay maintenance. The real point is to "encourage" someone to agree to divorce. There is no problem of a coerced divorce if the woman is the recalcitrant spouse. If there were no concern of a coerced divorce (see my quote from Maimonides about that in my previous post), I'd say the higher the payment the better! We are out to accomplish something here - ending a marriage that is no longer good. I'm in favor of equal rights and equal responsibilities. Every situation is different. If a couple wants to take into consideration their different circumstances, including differences in earning potential, in this agreement, they can consult with a lawyer and a halakhic authority and tailor their prenup to their requirements. I don't see the necessity of doing that when the goal is not to actually pay. In any event, it is essential that a couple consult with such experts before signing this agreement.
Unlike the Heskem L'khavod Hadadi, Yad L'Isha's agreement does not address child custody and support issues. In my opinion, this is a significant omission that needs to be addressed, and a couple who would use this agreement should amend it to include this matter.
To sum up, in my opinion, this agreement is not as well-formulated as the Heskem L'khavod Hadadi (for which I have criticism, also - not to worry - as I do for all of the prenups that are based on the same concept), and therefore I'd like to suggest that Yad L'Isha remove it from their website and replace it with the Heskem L'khavod Hadadi, unless they can offer some explanation of what advantages their own prenup has. The Heskem L'khavod Hadadi has achieved greater momentum as far as its publicity and support from various organizations are concerned, so why confuse the public? Let's avoid decision fatigue.
The (Israeli) Conservative Movement's Prenup Agreement
Here we find a breath of fresh air! In the second "whereas" (in the manner that legal contracts are written) it states that the Conservative approach to marriage, which the couple has chosen, is based on their belief in equality of the genders and the right of each one to be married to whom they wish. Breakdown of a marriage should not result in a woman remaining an aguna, because of the refusal of her spouse to give her a get.
The agreement itself is also based on the principle of monthly payments by the recalcitrant spouse, as seen in the Heskem L'khavod Hadadi. The amount is not specified, and, as always, the couple should consult with legal and halakhic authorities. There is also a paragraph requiring an attempt at marriage therapy, but there is no paragraph addressing custody and support of children. This should be added.
Two possibilities are presented with this agreement. One possibility is that the couple has a civil marriage (in addition to the Conservative ceremony), in which case, presumably, they register in Misrad HaP'nim (see my previous post for my thoughts on that, and you can read earlier posts, as well - by now you must know what I think about doing that). If that is the case, then any divorce proceedings would have to be in a beit din (of the Israeli rabbinate). Therefore, the halakhic and legal advice that the couple obtains must be with people who are familiar with those batei din.
The second possibility is that the couple do not register in the Misrad HaP'nim. Such a couple is referred to as yedu'im batzibbur (literally, known in public, what is termed "common law marriage"). I urge such couples who plan on having this status - or even just think about it - to check with the New Family organization to find out all of the latest and greatest rights of such a relationship. The information provided on the form for the prenup is not up-to-date in this matter. These rights are improving all the time in Israel and I think this is the best way to go! If a couple chooses this route, they should consult with a Conservative halakhic authority, who should explain the implications of marriage (and divorce) in the manner of the Conservative movement. I am under the impression that if the prenup agreement does not lead to the desired result, if one party wishes to divorce, then the Conservative beit din will annul the marriage (hafka'at qiddushin).
Therefore, it would be wise for any couple who chooses to marry in a Conservative ceremony not to register in Misrad HaP'nim. They will have a traditional and halakhic (yes, I maintain that their ceremony is halakhic) marriage (and therefore, with all of the reservations that I have about qiddushin), but at least better protection against get refusal than is found in the (Orthodox) Israeli rabbinate.
In summary, if I had to choose one of the three prenups based on substantial monthly payments by the recalcitrant spouse that are offered, I would opt for the Conservative one, marry in a Conservative ceremony, and not register in Misrad HaP'nim.
But if a couple insists on marrying using the services of the Israeli rabbinate (you do know already what I think about this, don't you?), then use the Heskem L'khavod Hadadi. Yad L'Isha should remove their agreement, so that there is a standard prenup of this type. There are enough concerns about the effectiveness and acceptance of this type of agreement, without confusing the matter by having multiple versions. This does not mean that couples should not tailor it to their needs, but it should be based on a standard format.
If I am already raising the matter of "concerns", I ought to tell you that one reader raised the question of the attitude of the Israeli batei din to such agreements. Based on her personal experience, there are dayyanim who see any such prenup as a cause to make any future divorce a coerced divorce, and thus invalid. I plan on raising this issue with the various organizations that are promoting the agreement. It is fine that a civil court will order the recalcitrant spouse to pay, because this agreement is seen by the civil court as a valid monetary contract, but what happens when the couple appears in the beit din to arrange the divorce?
In my next post I'll discuss the prenup offered by the Center for Women's Justice. I'll also say a few words about a prenup that is on Mavoi Satum's site, not because I think it is of much importance, but because it is kind of nice.
can you please comment on this pre-nup as well:
ReplyDeletehttp://homedir.jct.ac.il/~meschelo/marriage/about_agreement_tzohar.html ?
thanks
Here's more on the heskem l'gishur: http://homedir.jct.ac.il/~meschelo/marriage/menu.html
ReplyDeleteThank you for calling this agreement to my attention. I will be happy to look at it and comment in a future post. Do you know who are the "gedolei haposkim" who support this agreement? Why doesn't it get more attention? Why doesn't it appear on Tzohar's website? How many couples have used it? Is it presented to students in yeshivot and midrashot? You might not know the answers to these questions - maybe after I examine it more closely, I'll be able to suggest possible explanations.
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