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Tuesday, August 6, 2013

Everything Including the Kitchen Sink: Contract for a Just and Fair Marriage - Center for Women's Justice

In my previous post I took a look at two prenups that are similar in concept to the Heskem L'khavod Hadadi, which I discussed in the post before that.  I also wrote that I would next discuss the prenup offered by the Center for Women's Justice (CWJ, called Merkaz Tzedek L'Nashim in Hebrew).  There is a link to an English version, but the English version does not have everything that the Hebrew one does (and there is no explanation as to why) and the English translation is inaccurate.  Therefore, my discussion will relate to the Hebrew one, and I will point out the significant discrepancies.

This prenup agreement contains several clauses.  The first clause is similar to clauses that we've seen in other agreements - an agreement to divide any joint property accrued during the marriage according to the civil law in Israel.  

I can point out here, that even this clause is a subject of contention, not just with this agreement, but with other agreements that seek to avoid the fault-based approach to property and ketuba settlements that take place in the batei din.  Many rabbis oppose, based on their claim that the Israeli courts are like gentile courts, that choosing the civil courts to settle disputes rather than the batei din is a transgression.  

This, of course, is not a new dispute in Israel.  Here is not the platform for me to explain all the reasons that almost everyone, including most people who consider themselves halakhically observant, prefer the civil courts in Israel (and outside of Israel) to religious courts.  Here is not the platform for me to explain all that is lacking in what here in Israel is often termed Mishpat Ivri, a term that in my eyes is agenda-driven, where the agenda is to apply what is considered Jewish law in the courts, even the civil courts.  Why don't I just drop a few phrases to make you think about the complexity of the issue: "testimony of women," "punishment for rape," "required evidence to convict a murderer," and, for those of you who are advanced in Jewish law, "asmakhta, qinyan devarim, and obligatory contracts."

I'll return to the subject at hand - the CWJ prenup.  Notice that in that first clause about division of property, unlike the Heskem L'khavod Hadadi, there is no alternative option for the woman to receive 50,000 NIS as her ketuba instead of the equal division of property.  Not only that, it clearly states that the woman waives any claim to the ketuba.  

Well, I didn't want to criticize the Heskem L'khavod Hadadi two posts ago - I said I wanted to start with the positive aspects.  But since I'm now comparing, I will state here that I totally oppose any such unequal property division, afforded by giving a woman this option to take 50,000 NIS as her ketuba.  I realize that this option was probably included in the Heskem L'khavod Hadadi to placate those who were uncomfortable with the idea that the ketuba is an outmoded irrelevant document that is being replaced by the agreement.  But, hey, it is an outmoded irrelevant document that must be replaced.  (To totally replace it, proper wills must be executed as well.)  I also suspect, just as many women in Israel are not in favor of equalizing the Bituah Leumi retirement age and payments (similar, but not identical, in concept to US Social Security) for men and women, there are women who feel that since women have so many disadvantages, the option of a 50,000 NIS ketuba payment helps offset those disadvantages.  I don't accept that.  I think the disadvantages themselves are what need to be addressed, and not offer compensation that accepts and/or maintains a status quo of women in a disadvantaged position in society (or in religious law).  And, it is pretty easy to envision a couple that has far fewer assets than 100,000 NIS worth, and therefore if a woman can claim 50,000 NIS, the man might truly be pressed to be able to pay.  He should not have to pay for the sins of other men who mistreat women.  Equal is equal, and I'm in favor of equal.  I therefore commend CWJ for keeping the ketuba out of this agreement.

The second clause of the CWJ agreement is similar in concept to the other prenups I've looked at so far - monthly payments by the recalcitrant spouse, until a divorce is given/received.  I don't think I need to elaborate any further - you can just look at the previous two posts to see an explanation of this idea. Here, we are talking about the larger of $2000 or 50% of the recalcitrant spouse's salary - same for the man and the woman, as it should be (see my previous post for a discussion of a prenup that does not do that).  As strongly advised in the previous two posts, a couple should consult with halakhic and legal experts regarding the appropriate monetary payments that should be defined in their agreement.

There is no mention here of obligatory marital counseling for a defined amount of time - a reasonable requirement, which we have seen in other agreements.

A detail that I did not point out previously, but I will point out now - because it is lacking in the CWJ agreement - is that in the Heskem L'khavod Hadadi (and some other similar prenups), the calculation of the salary is based on the previous year.  This is important - it prevents a recalcitrant spouse from quitting his (or her) 7-figure-salaried-job (and living off savings or a bonus, or hidden income) when deciding to refuse to divorce just so as to avoid having to pay high payments.  Such things have happened, certainly with cases of men who refuse to pay mezonot (maintenance to the wishing-to-be-divorced wife) or child support.  They conveniently become unemployed.  By basing the calculation on the previous year, such tricks are harder to pull.  Yes, this is a problem inflicted by men, because under Israeli law (which, in this case is a direct result of patriarchal Jewish law), only men are obligated to pay maintenance to a spouse, and only men are obligated to pay child support. Yes, it is unfair, and the men who complain about that are justified in their complaints.

That's why the prenup should include an agreement about equal sharing of child-support - we have seen that in other agreements.   The CWJ prenup does not include such a clause. And such a financial agreement makes sense not just for the case of divorce - I've mentioned that several times in earlier posts.

The third clause reiterates that all disagreements are to be settled in the civil courts.

So far, nothing is radically different from other prenups that I've discussed. But the fourth clause is where this prenup takes a radical turn.  It introduces several concepts: conditional marriage, annulment of the marriage by a beit din, and divorce by proxy.  The inclusion of these three concepts in one agreement was inspired by Professor (and former dayyan) Michael Broyde's proposed "tripartite" agreement.  I will avoid discussing Broyde's misconduct. We can learn from anyone's scholarship, and I'll leave it at that.

I'll briefly summarize the three paragraphs in to this fourth clause of the CWJ agreement and offer my comments on it.  The first paragraph is an agreement that the marriage that will be performed will actually be conditional.  I've mentioned conditional marriage in my blog.  For anyone who wants to have a traditional, halakhic, wedding ceremony, conditional marriage - qiddushin al tenai (technically, that means "conditional betrothal", but these days the betrothal is immediately followed by the nisu'in, the marriage) - is the way to go.  The problem is, and I mentioned this before, a couple will have to make an effort to have such a ceremony.  The rabbinate won't do it - but that is a good thing, because that way, if you have the sense to marry conditionally, then you will, by default, stay away from the rabbinate.

However, the CWJ agreement was actually drawn up with the idea that the agreement would be signed not necessarily at the time of (or immediately before) the ceremony, but some time prior to it, while the ceremony could be conducted by a rabbi from the rabbinate.  I know people who have done this. Big mistake.  Is the mesader qiddushin aware that it is agreed by the bride and groom that this is conditional?  Chances are that had he known, there is no way that he would have officiated at the wedding.  Not if he does not want to risk his permit to officiate at weddings in Israel.  But, in any event, by marrying via the rabbinate - and therefore registering in Misrad HaPnim (Ministry of the Interior) - a couple would be throwing out any value they had in the conditions set.  Divorce would have to be done in a beit din of the rabbinate, who won't recognize the conditions set.  If a woman is widowed, and halitza is required before she can remarry, the beit din will not recognize this conditional marriage.  If a woman's husband becomes incompetent for the purpose of giving a divorce, again, the beit din won't recognize the conditional marriage.  She is stuck, an aguna.

In small print at the bottom of the (English) page (there is a similar statement in the Hebrew), the CWJ agreement states:
At this juncture in time, CWJ doubts that the rabbinic courts in Israel will accept clause 4 as binding under the halakha. Nonetheless, it is our hope that in the future rabbinic courts and halakhic authorities will recognize the necessity for conditional marriages and will authorize their use.
Clause 4 is the clause that contains the conditions.  Therefore, this agreement is not valuable for anyone who chooses to marry through the rabbinate.

Clause 4 defines two conditions for the marriage to be valid (I am following the Hebrew version):
1) that (A) either the couple do not live apart for 18 months or more or that (B) neither the man nor the woman has approached a beit din to execute the document.  (Both could be true, too - it states "at least one".)  I'll express this as A or B.
2) that the groom, if he dies before the bride, will leave a viable descendant (so that halitza is not necessary, in the event that the groom has a brother).  I'l express this as C.

Therefore, the conditions that the marriage be valid can be expressed as: (A or B) and C.  According to Jewish law, every condition must also be stated in the negative form.  Maimonides ruled (Mishne Torah Laws of Personal Status [Hilkhot Ishut] 6:2) that a condition "should be a twofold condition,  that its positive [i.e., the condition that must be fulfilled ] should precede the negative [i.e., what constitutes non-fulfillment of the condition] ..." (This is learned from the way Moshe made a conditional agreement with Reuven and Gad at the end of Parashat Matot.) 

Therefore, the the marriage will be null and void if ~[(A or B) and C].  I'm not a lawyer, but I am a mathematician, so I'l apply De Morgan's Laws and convert this to: ~(A or B) or ~C, which is equivalent to (~A and ~B) or ~C. (See why a core curriculum must include some mathematics?)  In other words, the marriage will be invalid if either the man dies leaving no viable descendant (~C); or the couple lives apart for 18 months or more and one of them files for divorce (~A and ~B).  I switched the order just because the syntax in English is easier to follow.

The English version of condition #1 has "and" rather than "or": A and B, but this is inconsistent with the negative form of the condition as written both in the English translation and the Hebrew version.  So, though I am merely a lay person and not a lawyer, I'd say that there appears to be a problem with the English version!!

I'm not really sure that I see the reasoning behind the addition of what I called "B".  I called it an "addition" because, if you look at the original proposal by Prof. Broyde, you'll see that there is just one condition for the marriage to be valid: no separation for 15 (not 18) months or more.   Such a separation would make the marriage null and void.  Broyde's proposal has nothing more - not even something to avoid halitza.  But I'm not here to critique his proposal.  If you'd like to see critique of his paper, you can read Yehudah Abel's comments.   

Perhaps the reasoning of the CWJ version is that if a spouse disappears - say in war - the remaining spouse must request that the marriage be declared void, rather than for it to happen automatically.  But the English version is misleading, again.  It translates "B" as "neither of us files for divorce".  That is not what the Hebrew version says.  The Hebrew version says "if neither of them turns to a beit din to execute this document" לממש.  That does not mean filing for divorce!!  A divorced woman can't marry a kohen (in the Orthodox world), but a woman whose marriage is null and void can.

Moving on, the second paragraph in the fourth clause allows for hafqa'at qiddushin - annulment of the marriage by a beit din - in the event that the conditions that validate the marriage are not upheld.   The English version of this portion, entitled "Condition, Annulment, and Agency," has a very brief and inaccurate translation. I have no idea why.  I suspect it is just sloppy or incomplete work.  I will not point out all of the problems with this portion's translation.  I'll just state that this should be corrected - if the English version is there to help people who are not comfortable enough with the Hebrew, then those English-readers are being misled.  Marriage agreements are not a place for sloppy work.

But even the Hebrew text is extremely problematic and must be corrected before use.  The Hebrew text states that the couple authorizes a beit din (which beit din?  Don't look to one in the rabbinate!) to annul the marriage in the event that the conditions stated above are upheld - בהתקיים התנאים. Certainly they mean "if they are not upheld"!  It is true that if they are not upheld it means that they live apart for 18 months or more, etc. (see above). A condition can be stated in the negative, for example, "I will return your security deposit on the apartment so long as you don't damage the apartment."  If the condition of not damaging the apartment is upheld, I'll return the security deposit. If the condition is not upheld, that is, if you damage the apartment, then I won't return the security deposit.  Which is the condition?  (See my quote from Maimonides, above.)  The text must be much more carefully worded so as not to be ambiguous.  There are enough examples of various conditional obligatory agreements in the halakhic literature that could be emulated so as to offer a far better-written (and unambiguous) document.

Explaining hafqa'at qiddushin in this post is not feasible - it is already quite a long post.  This paper by Avshalom Westreich is a good one (there are many) to look at for a presentation of this halakhic approach to nullifying a marriage.

The third and final paragraph in the fourth clause of the agreement is appointment of a beit din by the man, who authorizes this appointed beit din to write a get that is to be delivered, by agency, to the woman, in the event that the conditions stated above are not upheld.  Again, it states that the get would be given if the conditions stated above are upheld - שבהתקיים התנאי, but, in my opinion, this is not worded correctly.  I don't think there is a need to repeat why.  I  also wonder what happens if the people appointed are no longer in this world, or cannot be found.  How valuable is it to appoint a beit din "from now"?  I realize that in Jewish law, one can say "from now" and have it actually retroactively done later, but if a man turns into a recalcitrant spouse, later might not come.  So honest-to-goodness now is better than nothing.

Why so many different methods of dissolving the marriage?  Either it is simply null and void by virtue of the conditions not being upheld, or it is annulled by a beit din, or a divorce is sent?!!  Well, which one is it?  Why, at least, is a preference not stated?  (It is better for the marriage to be null and void - then a woman has no problem if she wants to marry a kohen, though that issue is a topic in itself, not to be touched here.)  Should we change all the or's to and's? Well, that wouldn't make sense - can it be null and void but in need of a get? (Actually, many poskim who oppose hafqa'at qiddushin say that hafqa'at qiddushin can only be implemented by a beit din if there is some kind of get - you can read the references linked to, to learn about that).  And, don't forget the earlier portion of the agreement, with the monthly payments, meant to encourage a recalcitrant spouse to agree to divorce.

In his article about the "tripartite" agreement, Broyde explains that each one of the three approaches (reflected in the fourth portion in the CWJ prenup) has support from some poskim.  (But none of them has support of all poskim.) So, by throwing everything in, including the kitchen sink (now you get the title of this post), maybe something will actually work and be accepted by the Orthodox community.

I would rather say:  pick what you think is a good solution, and have the courage of your convictions.  In my humble opinion, the most viable one of the above is the conditional marriage - a couple is not reliant on any beit din (so long as you don't include what I called B above).  Then a person is reliant on his or her own belief in the method and its halakhic justification, and his or her own conscience.  If the condition is not upheld, the marriage is as if it never happened.  That's it?  No public declaration?  No ceremony?  Like breaking up with a live-in boyfriend?  Well, if you think there is a vacuum, you might see the value of a prenup (or additional clause) along the lines of what I intended to look at in this post as well, but will defer to the next post.

To conclude, I will draw an analogy to this agreement, which includes so many methods of dissolving a marriage in the hopes that one of them will work.  It is like the cancer patient who needs surgery, chemotherapy, and radiation.  The prognosis is not too good.  The disease is quite advanced.  Jewish marriage and divorce law is the patient here, and if it needs so many treatments to fix the problem, then maybe it is beyond repair.  Unfortunately, there is no cure for cancer.  If all else fails, throw everything at it (I know - that does not always make sense for cancer, either).  There is no cancer preventative either.  

With Jewish marriage law, if a couple is already married and one of the spouses wants to dissolve the marriage but one is recalcitrant, try whatever tools might work.  But there is a simple preventative to the problems in Jewish marriage laws:  don't smoke, and if you haven't yet, "be smart, don't start".


  1. If the condition that is to be upheld is ongoing, then how does qiddushin take effect? It is clear that the marriage can be dissolved by saying "if you sleep with someone else, this marriage is dissolved" or "if we live apart for X time, this marriage is dissolved." But what is the positive action that makes qiddushin take effect? "Living together," "not sleeping with anyone else," are open, and not singular/quantifiable historical moments. If qiddushin is done through money, then it does take effect, but all hafka'ah can do it dissolve the marriage prospectively. The woman would still need a geT, in which case, why bother with hafka'ah at all?

  2. As in other legal systems, such as Roman Law, Jewish law provides for conditional contracts. A condition in Jewish law is dual - it has a negative and a positive aspect. That is the important element, and I expressed this in logical terms in the post above. Though I explained this briefly above, to see it in the halakhic formulation, I will quote here from Maimonides Hilkhot Ishut (Laws of Personal Status) 6:1-3 (and remember that qiddushin is really “betrothal”):
    1) One who betroths [a woman] on condition – if the condition is upheld, she is betrothed, but if it is not upheld, then she is not betrothed, whether the condition was [stipulated] by the man or by the woman. Any condition whatsoever, whether in [matters of] betrothal or in [matters of] divorce, or in [matters] of commercial transaction, or in any other monetary laws, requires four factors in the condition.
    2) These are the four factors of every condition: that it should be a twofold condition, that its positive [i.e., the condition that must be fulfilled] should precede the negative [i.e., what constitutes non-fulfillment of the condition], that the condition should be [stated] prior to [performing] the [actual] deed, and that it is feasible to uphold the condition. If any one of these [factors] is absent from the condition, then the condition is null, as if there were no condition at all. Rather, she would be betrothed or divorced, and the transaction or gift would take place immediately, as if he did not stipulate a condition at all, since the condition is missing one of the four [required factors].
    3) How [is this done]? [For example,] if one says to a woman: “If you give me two hundred zuz, behold you are betrothed to me with this dinar, and if you don’t give me [two hundred zuz], you shall not be betrothed to me,” and after he stipulated this condition, he gave her the dinar, then the condition is valid, and thus she is conditionally betrothed. If she [then] gives him two hundred zuz, then she would be betrothed, but if she doesn’t give him two hundred zuz, then she would not be betrothed.
    It is true that in the case of conditional marriage as presented here we say that the qiddushin are in effect if (for example) the couple does NOT live apart for 18 months, but is invalid if they do. It is a condition that can be breached at any time. There is no hafqa’a if they end up living apart for 18 months. Rather, retroactively, the qiddushin never took place. In spite of what you might have thought, there were never any qiddushin! It is NOT an annulment done by a beit din. The qiddushin in a sense are always in limbo. The condition is upheld, you’re cool. It is not upheld – whoops! There were NEVER qiddushin. Yes, it does mean that the sexual relations were non-marital. Haza”l recognize this, and this is a matter of dispute as to whether such a condition can be made. There is the opinion that a man does not do b’ilat z’nut (promiscuous sexual intercourse), but this is the reason that at the time of the conditional marriage, a statement is made to the effect that sexual relations that they have do not imply qiddushin in and of themselves. Such a statement appears in the CWJ document. Basically a couple is saying, yes, if it turns out that the conditions are not upheld (or are breached), then our sexual relations were promiscuous, after all. Better that than to be stuck as an aguna! In Masekhet Ketubot 3a, the question arises about a Beit Din doing hafqa’at qiddushin (but remember that so far, I am not relating to hafqa’at qiddushin) when a man betrothed his wife with bi’a – sexual intercourse. How can they annul such a marriage? And the answer is that the Sages consider that act one of promiscuous sex (even though its original intent was to betroth a woman). Continued in next comment because there is a limit.

  3. Continuation:
    Hafqa’at qiddushin is also a way of the beit din to say qiddushin never took place. But it must be a beit din who determines it and it is not based on any condition that was stated at the time of the qiddushin. It is a different mechanism. It also has to rely on the fact that sexual relations were not within the context of marriage, after all.
    It is a difficult concept – a marriage retroactively disappears. It is a formalistic, legal approach, something that was actually relied on in matters of marriage and divorce throughout the centuries to get around problems of iggun.
    You wrote “if qiddushin is done with money, then the marriage does take effect” – no! It seemingly takes effect, but it is always subject to the conditions set. If hafqa’a is used to annul the marriage (again, I must emphasize that either it is a breached condition or hafqa’a, and one of my criticisms of this tripartite agreement is trying to apply more than one technique), then it is annulled retroactively – it never took place! The woman does NOT still need a get. The tripartite agreement, as I explained, includes all these techniques in the hopes that at least one will be accepted by the nay-sayers. I think that is a confusing and problematic approach, as I explained above.
    I do hope I’ve clarified this for you!


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