An Agreement for the Beloved - some nice ideas, but ...

In the interest of thoroughness and in the interest of keeping my word, I offer this post about a rather obscure (in the sense of lacking any prominence) prenup agreement that is available, only in Hebrew, on Mavoi Satum's website. (Though the link is called Sh'tar Ohavim - a document for those who love, the actual document is called Sh'tar Ahuvim - a document for those who are loved, perhaps for those who are in love with each other or those who are beloved, as in re'im ahuvim in the sheva b'rakhot.)

No organizational affiliation or author is named for this document, and though someone at Mavoi Satum told me that she thinks so-and-so wrote it, since it was not a definite identification, I chose not to name any names.  Anyone who would like information can contact Mavoi Satum.

The document is intended to be an agreement for a union between two people, with no mention of halakhic qiddushin.  We're off to a good start.  The document aims to be totally egalitarian in the relationship between the two partners - exclusivity in "personal relations" (יחסי אישות) and in responsibilities - financial support for each other, joint support for their joint children, redeeming each other from captivity and providing medical care (traditionally, obligations of a husband for his wife), and other similar obligations.  This is refreshing, certainly in comparison to the ketuba and the implicit, but unstated-in-writing, asymmetric obligations of a husband to his wife and a wife to her husband in the default halakhic system.

The document also defines the way to dissolve this relationship.  For those who are troubled by the concept of a retroactive nullification sans ceremony of a conditional marriage, a concept that arose in my previous post,  you might find some ideas in the procedure defined here.  If either partner decides that s/he can no longer live in harmony and happiness with the other, then s/he should so declare before a beit din that recognizes the validity of this agreement, in all its details.  If no such beit din can be found (hint, don't look to the rabbinate, or to the Beit Din of America), then a public declaration should be made before ten adult Jews (of either gender).  After such declaration is made, the partners are to meet with a professional to attempt to reconcile - for a period of six months if there are no children (there is a spelling mistake in the Hebrew text here), and a period of one year if there are. 

After this period, if one partner still maintains that s/he can no longer live in harmony and happiness with the other, then a document attesting to the attempt to reconcile with the assistance of a professional should be presented to the beit din or to the quorum of ten.  Only one partner has to make such a claim, and then "the two parties are freed from one another."

Similarly, if one party becomes ill (mentally or physically), and can no longer be attentive to the other, or one party disappears, and the other party does not want to live in this situation, then the same procedure is followed.  However, instead of an attempt at reconciliation, there is a waiting period of one year if there are no children, and two years if there are, in order to try to restore the health of the one who is ill, or to locate the one who disappeared.

The purpose and motivation of these clauses is quite obvious.  The situations in which a woman finds herself an aguna if she were to be married halakhically, unconditionally, are addressed.  The public declaration provides closure and, I would imagine, would be a preventative to rash decisions to end a relationship.

We see some positive ideas here!  But I am not convinced that the agreement is completely well thought out.  It has a space for a bride and groom to sign, and a space for two witnesses.  But without a notary, at least, or signing a document in a family court, this document would not hold up in court. Therefore, there is no power of enforcement.  Such a document should come with clear instruction.  It also appears, to my layperson's eyes, not well-formulated from a legal point of view.  If I were interested in using such a document, I would bring it to a lawyer, and ask the lawyer to formulate something that is in accordance with the laws in Israel (or wherever it is being used) and that maintains the spirit of this agreement and whichever portions that could be adapted to a correctly worded legal document.

But there are also some clauses that seem naive to me.  For example, it states that all money and property acquired during their life together, including inheritance and gifts, is to be considered joint property.  This is a big mistake, in my opinion.  If one person inherits his/her family estate, it is not wise to consider it joint property.  If the relationship sours, or if the heir dies young, what happens to the property?  Because of such problems, hundreds of years ago it already became acceptable to give dowries to daughters contingent upon the marriage lasting a certain number of years.  Sadly, it was common for women to die in childbirth, and families that gave her a dowry did not want the husband or his family to inherit the dowry they gave their daughter just two years ago.  They wanted their property returned.  There are numerous responsa addressing disputes like this.  If a woman's grandmother gives her a diamond that is a family heirloom, it should stay in that family, and not be considered joint property.

That's just one example of the problematic clauses.  But I think all of the clauses that have to do with inheritance, property, and child support would need to be replaced with carefully considered and legally proper clauses (once again, I suggest looking at the Mishpaha Hadasha (New Family) website).

There is another concern that I have about this document.  Some of the clauses include heirs in the obligations, such as the obligation to redeem one another from captivity.  I don't see how you can actually obligate your heirs to do something in such an agreement.

In conclusion, there are some nice ideas here.  But if you like the ideas, be inspired by them, and then go draw up a better agreement with expert advice. One that would hold up in court and one that reflects the serious thought that a couple should engage in at this important time in their lives.  Then have whatever (non-halakhic, or conditional qiddushin) that you like, and live together in harmony and happiness.  

(And, I really don't think that Mavoi Satum should have this agreement on their website, at least not without some qualifying statement.  Fortunately, I doubt it has been used much, if at all.)