VaTashar Devora logo

VaTashar Devora logo
“The books, the compositions, and the commentaries are our teachers, and all is according to the understanding of the intellect and reason.” R. Sh’muel ben Moshe di Modina

Wednesday, July 17, 2013

Prenuptial Agreements for the Prevention of Agunot - the Good, the Bad, and the Ugly

The wedding season is here! All the organizations is Israel that concern themselves with the problem of agunot have had recent promotion campaigns to encourage couples to sign prenuptial agreements.  That includes Kolech, Mavoi Satum, The Center for Women's Justice, ICAR, and Beit Hillel.  (If I forgot someone, let me know.)  The links provided are to English pages, unless no equivalent English page is available.

Kolech, Mavoi Satum, Beit Hillel, and the Council of Young Israel Rabbis in Israel have been promoting the Heskem L'khavod Hadadi (The Agreement for Mutual Respect).  The Council of Young Israel Rabbis provides information in English, and also an amended version that includes an international arbitration clause, which is important for couples who might have more than one country of residence. ICAR, the Rackman Center for the Advancement of the Status of Women, and Mavoi Satum, have several different prenups available for download.  Itim has the Heskem L'khavod Hadadi and the agreement offered by the Conservative movement (in Israel).  The Center for Women's Justice provides an agreement that is different from the others in that among its purposes is to make the qiddushin conditional (qiddushin al tenai), which I explained briefly in this earlier post.  Yad L'Isha offers an agreement that they formulated themselves.

As you might have concluded, I am aiming this post at people who live in Israel.  If you are reading this and live in the US, then the corresponding prenup would be that offered by the Rabbinical Council of America (RCA) together with the Beit Din of America.  Some of the differences are a result of the different legal situations - in Israel, there is no way to divorce other than through the beit din.  In other countries, a couple might have a civil divorce but not a religious divorce.  The various legal and practical implications that are involved impact the formulation of the agreement.

In this post, I will discuss the agreement that is most commonly used in Israel, the Heskem L'khavod Hadadi.  I want to start on a positive note, so I will point out what I consider its positive aspects and what it can accomplish. In the next post I hope to compare the other available agreements to it, and in a future post I'll offer my criticism and concerns.

Before I begin my discussion of the Heskem L'khavod Hadadi, I feel it is my responsibility to point out to you one organization in Israel whose rabbis are very involved in officiating at weddings, and are presented in the press as being a moderate voice in Orthodox Judaism.  Yet, their website - which features on their home page slide show a smiling bride and groom - has not a word about prenups, not a word about problems with divorce.  I am referring to Tzohar.  I was not even able to find on their website two articles - by two of the three authors of the Heskem L'khavod Hadadi - that were published about nine years ago in the Tzohar journal.  (If I am mistaken, let me know and I'll correct what I wrote and apologize for the misinformation.)

For this reason, I consider the Tzohar rabbis who perform weddings like wolves in sheep's clothing.  Friendly, pleasant, smiling rabbis lead innocent young couples to the huppa to marry according to Jewish Orthodox law, but do not say a word about the problems that might come up if they wish to terminate the marriage, nor do they express any responsibility that every one must take for k'lal Yisrael, so that every Jew can be free to terminate a bad relationship, if desired.

Therefore, I request of each of you who chooses a Tzohar rabbi to officiate at your wedding to ask him why not a word is said about prenups, and if the Tzohar rabbis object to them on halakhic grounds, or for other reasons, what do they propose as a solution to the disgraceful problem of agunot (and men who are also victims of recalcitrant wives, who refuse to accept a get).  What do they propose to prevent the extortion and shameful divorce proceedings in the batei din?  Mention to the rabbi that the RCA and the Beit Din of America (see above) do encourage use of a prenup, and that the RCA request that their rabbis do not officiate at a wedding unless the prenup is signed (but unfortunately, the link provided above to the RCA is evidence of the fact that this is not always implemented).

Now to my discussion of the Heskem L'khavod Hadadi. Any of the sites that have the agreement available for download also have an explanation about the agreement.  I recognize that these explanations cannot be too long or detailed - people won't want to read them.  But I also get the impression that the organizations that prepare these explanations don't want to frighten couples and deter them from getting married.  I do - I want couples to understand exactly what qiddushin means, and what the risks and problems are when qiddushin is done unconditionally.  I did say that I'd control myself and save my critique for a later post, so right now I'll say only this:  the explanations that are simple and sweet only reveal the tip of the iceberg.  The Hebrew explanation provided by Mavoi Satum is quite good and honest.  It states that the prenup does not solve all problems and that not all rabbinic authorities approve of its use. There is also a reference to a ruling by R. Moshe Feinstein that lends support to use of such prenups.  Yad L'Isha also points out some concerns with the prenup, though their Hebrew explanation is better.

This agreement is appropriate for any couple who will be registering (or is already registered) their marriage in Misrad HaP'nim (Ministry of the Interior) - even if the couple does not marry via the rabbinate, but marries outside of Israel in a civil ceremony (though it is beyond me why such a couple would then register in Misrad HaP'nim!).  Since there is no other mechanism for divorce in Israel other than via the beit din, anyone registered as married who wishes to terminate that marriage MUST get a divorce in a beit din, or have a permit from the beit din to change the marital status (though the beit din requires a get l'humra - a get to be stringent - even in civil divorce, they will under certain circumstances forgo that requirement, and declare the civil marriage void).  The beit din is the only government body that can approve change in marital status.  There would be no value or need for a couple who marries in a civil marriage outside of Israel or in a private ceremony in Israel and does not register in the Misrad HaP'nim to sign this agreement.  However, it is still very important to sign a financial agreement and an agreement about responsibility for children.  I refer such couples to the New Family organization for information.

If you have read any of the explanations of the Heskem L'khavod Hadadi (or similar prenups) or the prenup itself, you will have understood the principle. Either partner in a marriage may decide that they no longer wish to be married and can request to terminate the marriage.  There is a requirement to first try to reconcile and have several sessions of "couple therapy".  A time period for this and a number of meetings is defined.  A couple can change this time period and the number of sessions, but they should consult with a legal advisor before making any changes to the agreement.  The Council of Young Israel Rabbis states on their site:
Please note for your information that the composers of the prenuptial agreement cannot take upon themselves legal or halakhic (Jewish legal) responsibility for the phrasing and text of the agreement or for its validity. Rabbinic and Halakhic authority and/or legal authority (an attorney), of your choosing, should be consulted in order to obtain appropriate counsel and advice.
That would even more so apply to anyone who changes the text provided.

After this defined period, the recalcitrant spouse (if there is one - maybe they now both realize that the marriage is "over") is obligated to pay the other spouse, monthly, whichever amount is greater between $1500 or 50% of the recalcitrant spouse's average monthly salary.  Any change to these amounts MUST be in consultation with halakhic and legal authorities, because the authors of the agreement - Dr. Rachel Levmore, R. Elyashiv Knohl, and R. David Ben-Zazon) determined this amount to provide the correct balance so that it serves as a strong incentive to the recalcitrant spouse to wish to end the marriage, but not so strong as to be considered a coerced divorce, which is the prime halakhic objection to such prenups among those who object on halakhic grounds.

[This would be a good point to remind you that in Mishna Gittin 9:8 it states that "a coerced get in Israel [i.e., among Jews] is acceptable" and that Maimonides ruled (Laws of Divorce 2:20):
When a man whom the law requires to be compelled to divorce his wife does not desire to divorce her, the beit din - in all places and at all times -  should have him beaten until he says "I want to", at which time they should have a get written. The get is acceptable.  Similarly, if gentiles beat him while telling him: "Do what the Jews are telling you to do," and the Jews have the gentiles apply pressure on him until [he consents] to divorce his wife, the divorce is acceptable. ... Therefore, since someone who refuses to divorce his wife wants to be part of the Jewish people, and he wants to perform all the mitzvot and eschew all transgressions, but it is his evil inclination that presses him, when he is beaten until his [evil] inclination has been weakened, and he says "I want to," he [is considered to have] divorced willfully.
"Because of our many sins," the batei din in Israel do not rule according to Maimonides in this matter.]

The couple also agrees that there will be no monetary, custody, or child support conditions upon which granting (or accepting) the get depend.  All those issues are to be determined separately.  The Heskem L'khavod Hadadi has an addendum in which the signing couple agree to divide their property according to the Israeli "Law of Financial Relations between Couples" (which I discuss somewhat in this earlier post), unless the woman prefers to receive 50,000 NIS, linked to the cost of living index, as payment of her ketuba.  This addendum (which may be replaced with any other financial agreement) also includes a paragraph about child custody and support.

Here are the points that I view as positive about this agreement:
1) No "mudslinging" in the rabbinic court (which is the only venue to achieve a divorce, as pointed out above).  Some of my previous posts, such as this one, already have mentioned the awful mudslinging that goes on.  To convince the beit din to obligate a husband to give a divorce, a woman must make some rather serious charges against him.  Likewise for a husband to convince the beit din to obligate his wife to accept a divorce.  At times the charges are rather trumped-up, exaggerated, falsified.  Some spouses hire private investigators to come up with "dirt" on their spouse.  Some spouses agree to undergo polygraph tests to prove that they are innocent of the charges against them.  The Heskem L'khavod Hadadi promotes "no-fault" divorce. Maintaining mutual respect and dignity is valuable considering that the couple might have children that they raise coperatively and they will have joint family occasions (perhaps bar/bat mitzva or marriage of a child) where they will have to cooperate and celebrate together.

2) Similarly, the "mudslinging" to either receive payment of the ketuba (by the woman) or to avoid payment of the ketuba (by the man) is unnecessary, if the couple signs the financial addendum, or a similar financial agreement. Otherwise, if a woman sues for her ketuba in the beit din, she must prove that her husband was at fault and that she is justified, not just in suing for divorce but also in requesting her ketuba.  A husband that does not want to pay the ketuba will try to prove that his wife was at fault - whether he or she first filed for divorce - and is undeserving of her ketuba.

I find it quite interesting that what I consider so positive in such an agreement - no-fault divorce and the absence of court hearings full of accusations - one of the opposers of the prenup, R. Eliezer Melamed, considers one of the main problems with it.  Almost a decade ago he wrote in opposition to this prenup, and faults it because it does not relate to who is responsible for the family breakup, who, he feels, should be held responsible and pay a price.  That whole "piece" that he wrote is quite troubling, so if you can read Hebrew, take a look (so you can be troubled together with me, and see why prenups have not received wide acceptance in the yeshiva world).

3) The prenup has the potential to reduce the number of cases of iggun. There isn't yet a huge amount of experience with it, especially not in Israel, and it is possible that those who sign it are a self-selected group of couples who, anyway, have more "mentschlichkeit", so it is hard to determine how effective the prenup actually is.

4) The separation of the divorce from the monetary, custody, and child support matters reduces the potential of extortion and concessions under pressure that frequently take place in order to obtain a get.

5) Signing the addendum (or a similar financial agreement) will reduce the lengthy court proceedings and high legal expenses associated with such settlements.

6) If every couple that marries via the rabbinate and/or registers their marriage in Misrad HaP'nim would sign this agreement, it would become a norm.  A new norm for Jewish marriage is an imperative to raise the awareness of the problems in Jewish divorce, and only then can we hope that the number of cases of iggun and extortion will be reduced.

In my opinion, it is this last reason that is the primary one for every couple who already married or will marry and/or who is or will be registered in the Misrad HaP'nim to sign this agreement, or a similar one (I will talk about other such agreements in the next post).  Every couple likes to think that it won't happen to them, that they are madly in love and will live happily ever after.  So don't sign this for yourselves.  Sign it because if you will live happily ever after, statistics show that someone else - your brother or sister, your good friend, your future child, your parent - will divorce, and you want this agreement to be the norm for their benefit.  If this becomes totally acceptable and expected for every couple, then those who don't sign will be the odd ones.

Notice I wrote "who already married".  You can sign this if you are already married, even if you have been happily married for 50 years.  Be an example to your children and grandchildren.  The one important difference between "before marriage" and after is that before marriage you can have the document authenticated at a  notary or in the marriage registry (they are obligated by law to do this, so if they balk, Itim has suggested that you ask them for help). However, if you sign it after you are married, the document can only be authenticated in family court (or in a beit din, but they wouldn't understand why you want to do this and I wouldn't understand why anyone would voluntarily enter the beit din).  This does cost more than the notary or the marriage registrar.

But since I'm raising the issue of cost - it costs quite a lot to have a family, and weddings cost a fortune, spent in a few hours, and on matters that have no real impact on how good your relationship is in the long run.  So when it comes to a prenup agreement, don't be a cheapskate.  I hope it won't save you a nickel. I hope it will be a waste of money for you to have signed it.  But if you and many other couples sign it, it will certainly save someone else a lot of grief. Thank you for your cooperation.

No comments:

Post a Comment

Comments to this blog are moderated. Serious, open-minded engagement and dialectic are welcomed. But if all you have to offer is something like “you have to accept God’s decree”. Or “who are you to say that the Sages were not sensitive enough?”, then please, save your bandwidth.

Note: Only a member of this blog may post a comment.