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“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

Sunday, September 1, 2013

A Prenup Agreement for Mediation

I've got one last prenup to talk about - this at a reader's request in a comment. This agreement was written by Rabbi David Mescheloff, and you can see information about him, the documents (one for the man, one for the woman), explanations, and an article - all in Hebrew (except for an English bio of R. Mescheloff) - here.

Before I even explain this agreement and give my opinion, I will point out something interesting.  This agreement is found on the website of the Jerusalem College of Technology.  Why not on the site of a rabbinic organization?  How about Tzohar, so popular for providing mesadrei qiddushin and in whose journal R. Mescheloff's shorter paper was published? (His lengthy paper was published in the journal T'humin 21.)  In fact, in his opening paragraph in the version that appeared in Tzohar's periodical, he starts out by inviting the Tzohar rabbis to offer this agreement to couples about to marry.  Didn't happen.   Why not the Israeli Rabbinate?  Why not Itim?  How are couples supposed to learn about it?

R. Mescheloff actually provides an answer to these questions.  Among the halakhic authorities to whom he presented this agreement for approval was the renowned R. Yosef Elyashiv.  R. Elyashiv stated that there is nothing that is not permissible in the agreement, but he had some concerns about making it public, for general use.  His concerns are actually relevant to every prenup agreement, and are consistent with some of my own concerns and comments about any of the agreements that I have discussed in all of my posts about prenups:  Some organization might decide to push for this agreement to become standard, for everyone to sign, and then couples would end up signing it without even understanding what they were signing.  If a time comes when the agreement needs to be implemented, one of the parties might claim that s/he didn't know what s/he was signing.

This concern is true for every agreement, which is why I've been recommending for every agreement that I discussed that a couple consult with legal and halakhic authorities.  As a result of R. Elyashiv's concern, R. Mescheloff himself, when preparing a couple for their wedding, spends an hour and a half explaining the agreement to the couple.

I totally, totally agree that any agreement that a couple agree to should be explained to them very carefully.  Why isn't this done with a ketuba?  Didn't the ketuba become the standard that R. Elyashiv is so concerned about, that it would just be presented for "signature," without explaining it?!!  How many couples who marry actually understand what is in the ketuba and what they are agreeing to - the man by giving it to the woman, and the woman by accepting qiddushin and the ketuba?  A lot of what they are actually agreeing to is not even written in the ketuba!!  It is written in Jewish codes of law that, by virtue of enacting qiddushin, both parties are bound by, without knowing what they have accepted!  (Somehow, I don't think it would work for someone to claim that the qinyan is not binding because she didn't know what she was agreeing to.)  So my response to this concern is:
אתה נאה דורש ואין נאה מקיים (יבמות סג:) 

Loosely translated, this means "practice what you preach" (but the Hebrew is closer to "you preach nicely but don't do it nicely").  I quoted the Hebrew from Yevamot (it appears in some other places in the Talmud, too), where the Sages said this to Ben Azzai after he said that one who does not engage in procreation is like one who spills blood and reduces the image of God.  He did not marry and had no kids himself.  (Well, actually, there is a story that he did marry with not such a good outcome, but getting into that would really be off-topic.)

I will attempt to summarize the essence of the agreement, rather than go through what would be very lengthy, if I explained each of the nineteen (!) paragraphs.  Even its author wrote that one of its drawbacks is its sheer length. R. Mescheloff wrote in his explanation of this agreement that it is based on halakhic agreements that have been used in the past, approved by halakhic authorities, all presented thoroughly in his article in T'humin.  Indeed, the structure and language of the agreement is far more in keeping with halakhic contracts than any of the other agreements discussed.  After presenting a summary of the agreement, I will explain why this is so.

The purpose of the agreement is to bring a couple - one of whom wishes to divorce - to mediation (gishur; גישור).  If marital therapy can save the marriage, the mediator would direct the couple to marital therapy.  If marital therapy would not succeed, then divorce mediation would be the next step, so that the couple can reach a divorce agreement and proceed with a divorce. R. Mescheloff claims that in 95% of cases of divorce, there is no justification for the beit din to order a divorce, and that mediation would save everyone a lot of time, money, aggravation, and the nasty proceedings that often precede eventual settlement.  Mediation does not determine who is "at fault", but is intended for each party to find ways that they can compromise and reach an agreement.

I agree with everything that R. Mescheloff wrote about this (I merely briefly presented his approach), and his willingness to recognize that no one needs to be determined as the "winner" or that no one should be made "to pay" for his/her contribution to the breakdown in the marriage is admirable.  I contrast his responsible and realistic view of marital breakdown with that expressed by R. Eliezer Melamed, which I referred to in a previous post. Only the concluding sentence in the section that presents the benefits of mediation is troubling to me.  I will paste the Hebrew sentence here and translate it:
ההסכם לגישור יקטין את סבלם של הרוב המכריע של המתגרשים, כי יאפשר לכל אחד מבני הזוג להשתמש לטובתו בזכות הסירוב שההלכה מעניקה לו, בלי לנצל אותה לניגוח חברו ולמטרות לא הוגנות.
The Agreement for Mediation will reduce the suffering of the overwhelming majority of those who divorce, because it will permit each one of the couple to use to his/her benefit the right to refuse [divorce] that is granted by the halakha, without using it to abuse the other or for unfair purposes.
I do not think any one should have a "right to refuse divorce".  It is this premise that is the undoing, in my opinion, of the value of this agreement.  A person's basic human right is to have the freedom to choose with whom to share one's life and to terminate such a relationship if it is not satisfactory.  No one should have a "right" to refuse this wish to dissolve the relationship. Someone has the "right" to feel unhappy, even devastated, that his/her spouse wants out, but does not have the right to refuse.

The essential element in this agreement, like others that we have seen, is to have a "monetary incentive" for the recalcitrant spouse to cooperate, in this case, to cooperate in mediation so as to reach an agreement that will enable them to proceed to divorce.  But the main difference is that this "monetary" incentive is not monthly support payments (in the event of recalcitrance) but rather is the forgiving of a purported debt (when there isn't recalcitrance).  The mechanism of odita (אודיתא) is used, by which someone admits that s/he owes someone a certain amount of money acquired in a loan from the other, in this case a large sum.  Each spouse's document is admission of such a "debt" to the other.  So long as the marriage is good, payment of the "debt" is deferred.  If one party wants to divorce, so long as s/he cooperates first in marital therapy, the debt is deferred.  And if the therapy isn't successful, then so long as the one who didn't want to divorce cooperates in mediation, his/her debt is deferred.  If a divorce agreement is reached and divorce takes place, then the debts are forgiven.  There are time frames specified for each stage in dissolution of the marriage.  In a nutshell, that is the mechanism.

Now that I explained the mechanism, I can explain why such a mechanism is used.  It is because the very nature of Jewish contract law is quite enigmatic. While Jewish law is quite explicit about transfer and acquisition of property, whether through a sale or a gift, and about monetary debts, such as loans, the fundamental law does not allow for contractual obligations, whether to transfer property in the future, or to perform an act.  Without getting too technical (or legal), obligatory contracts - and in the case of the prenups that are based on "generous" support payments, conditional obligatory contracts - fall in the realm of what is called qinyan devarim, which is roughly translated as an “acquisition of words,” which is not binding.  For a qinyan to be binding, it must be relating to a concrete object, and words have no substance (even if they are written).  (A contract between an employer and a worker who will be paid for his services is an exception to this rule.  Employment of salaried workers has its own distinct set of regulations.)

A legal system without an instrument for obligatory contracts would be difficult to maintain, and the non-binding nature of a qinyan devarim is circumvented in Jewish law by several methods, one of which is odita, used in this prenuptial agreement.  Each circumvention method has its proponents and opponents among Jewish legal authorities, and each one is considered more appropriate for some specific circumstances and less appropriate for others, but in this framework we can only touch on the fact that there are, indeed, methods to grapple with the inherent limitations of Jewish contract law, so as to render an enforceable (in a beit din, whatever enforceability means in a beit din) obligatory contract.

One can find on the Internet halakhic contracts that are promoted by various organizations that would like to see Jews using Jewish law rather than civil law even in matters of, for example, sale or rental of an apartment.  But such contracts are obligatory contracts, and to make them binding, the "gimmick" of odita is commonly used - a party admits to owing a "loan", to be forgiven if, for example, transfer of the apartment is made on time.  (Here is not the place to discuss the application of situmta, which I won't explain, but mention for those who know about this stuff - I'm trying to preempt questions about what I write.)

I called odita a "gimmick", because it is that - there never was a loan, and yet the agreement states that the person signing acknowledges that s/he has in his/her hand a sum of money that his/her future spouse loaned to him/her and that s/he accepted it and is in debt for it, to be repaid according to the conditions specified in the document.  This is in essence what happens when one tries to apply two-thousand-year-old rabbinic law to modern society (and these problems already became acute as Jews became more and more involved in trade hundreds of years ago).  So, do we turn cartwheels in order to say we are being halakhic?  Or do we admit that the system is outdated and go with a legal system that is comfortable with obligatory contracts?

R. Mescheloff does admit that some people, including the Israeli Supreme Court, might have problems with people signing that they took a loan that never existed, that in fact, the whole agreement is based on a lie.  He further relates that some halakhic authorities expressed reservations about the method of odita, and have presented various explanations and justifications for its use.  He then states that it is not a lie but rather a "form of speech" that creates a loan that didn't exist before.

Personally, I look at this as a classic example of the way the halakhic system works - it is a system of creative compliance, using many "gimmicks" such as selling hametz (which I don't think individuals should do - they should eat it up or throw it out, but that is another topic), selling the land in Israel for shemita, or allowing the beit din to "distribute" the produce harvested during shemita, such that the payment for the produce is for the effort and not for the produce itself, heter iska (used to circumvent the prohibition to charge or pay interest), conditional divorces given by someone on his deathbed (not common any more, but once quite common, to avoid levirate marriage or halitza) etc., etc., etc.  Intellectually, I love these "gimmicks".  They are often clever and even subversive.  They demonstrate that there was always recognition that there were problems with halakha and that solutions had to be found.

On the other hand - on a different intellectual level - I feel that use of these "gimmicks" demonstrates the absurdity of trying to preserve what is clearly outdated law.  When turning cartwheels results in a herniated disc, it is time to scrap the law. And, there is the serious danger that to the vast majority of Israelis who are not well-versed in how these halakhic methods are used as a means to reach an end, Jewish law will seem absurd at best and a laughing-stock at worst.

But, actually, this is not my main objection to this agreement, and that is because I do appreciate the legal elegance and halakhic language that was used to write the agreement.  It is so far better written than the other agreements, even if in an antiquated style - I am a student and admirer of halakhic literature, and this fits right in.

My main objection - and R. Mescheloff did mention that the "womens's organizations" that assist women who are waiting for a get (why am I bothered by this?  is it only women who care about the problem of iggun?!) expressed this concern - is that "enforcement" of the agreement and any ultimate authority is placed in the hands of the beit din, rather than the civil courts. But the beit din has no power of enforcement!  They were given the authority by the Israeli government to impose penalties on a recalcitrant spouse (and can agree to a heter me'a rabbanim - agreement of one hundred rabbis - if the wife is recalcitrant), but they have no power to enforce payment of this fictitious debt if one party does not abide by what is expected for the debt to be forgiven or deferred.  Suppose one spouse refuses to go to therapy or go to the mediator.  Then what?  Summon him/her to the beit din for a hearing.  And if s/he doesn't show up?  If it were a hearing about a divorce, the beit din does have the authority to ask for a police escort, for example.  But the beit din does not have the power to force someone to a hearing about an unpaid "loan", or about any of the conditions by which the loan would be forgiven.  So the most the beit din could do would be to tell a community to excommunicate someone - those tools that were so common in the 16th century don't work so well today.  We know this.  They don't work for get refusers and they wouldn't work for people who ignore their halakhic prenup.

The other problem with giving all authority to the beit din is that they have a different set of values from mine.  I think this paragraph from R. Mescheloff's article (the shorter one) reflects the values and ideas that I dispute and would be wary to rely on: 
ברוב רובם של המקרים של הבאים להתגרש בימינו ההלכה קובעת כי כשם שיצרו בני הזוג את זיקת הקידושין והנישואין שביניהם מתוך רצון והסכמה הדדיים, כך ינתקו את הזיקה, בגט, רק בהסכמה. זו דרישה הגיונית וצודקת. היא גם שומרת על "הזכות האזרחית" של כל פרט לקבוע בעצמו את מעמדו האישי, בלי שגוף חברתי זה או אחר יתערב מכוח הממסד בחייו הפרטיים. הצורך בהסכמת שני בני הזוג לגירושין גם מאפשר לכל אחד מבני הזוג להגן על האינטרסים שלו לפי מיטב הבנתו, בלי שמישהו אחר יעריך במקומו מה הם האינטרסים שלו ובאיזו עוצמה עליו להרגיש שנפגע.
In the overwhelming majority of the cases of those who divorce these days, the halakha determines that just as they created the marital bond with mutual desire and agreement, so they should break the bond, with a get, only by agreement.  This is a reasonable and just requirement.  It also maintains the "civil right" of each individual to determine his own personal status, without any societal body intervening in the individual's private life, by the power vested in it by the establishment [i.e., government].  The requirement of agreement by both parties to divorce also permits each of them to protect his/her own interests according to his/her understanding, without someone else determining what his/her interests are, and how great the damages s/he perceives.
I'm going to put aside the fact that halakha actually permits a marital bond without mutual agreement:  A father can, halakhically, marry off his minor daughter without her agreement (and don't fall into the common mistake of citing mi'un מיאון - this is only for a minor whose brother and/or mother married her off!!).  Levirate marriage (yibbum) is also marriage without mutual agreement.  Fortunately, neither of these are acceptable in today's society, but halakha does permit them.

But, I'll put that aside.  What R. Mescheloff neglects to consider when promoting mutual agreement to divorce is that women do not have the solution of a heter me'a rabbanim.  Men do.  And men who have extra-marital relations do not have the cloud of mamzerut hanging over any possible children.  Any thought that the "right to refuse divorce" is a legitimate right does not consider the injustice of the system.

R. Mescheloff is looking for symmetry in an asymmetric situation.  Two people might fall in love, but it only takes one to fall out of love for the marriage to be over.  I would not want to rely on a system that does not recognize that.


  1. I would like to speak to you further about gishur. I am trying to find out when the modern term was brought into the Hebrew language and when the practice started in general.

    1. As far as I know - but I am not at all involved with mediation - the term "gishur" is totally modern (from the word gesher - bridge, of course), as mediation is a modern tool in the Jewish (and non-Jewish) world. Probably the Akademia L'Lashon in Israel (Hebrew Language Academy) can tell you when this word started to be in use.
      It does not exist in the responsa literature, as far as I know. P'shara, compromise, on the other hand, is a long standing practice in Jewish tradition, and it was always a common function of a beit din to try to work out a compromise. I think mediation, or gishur, is not so different, except trained mediators are trained in skills that rabbis don't necessarily have just because they are rabbis or even dayanim (especially those whose training consists solely of law and Talmud, rather than more liberal rabbinic training that includes some pastoral psychology and skills).
      In Sanhedrin 6b (and other talmudic and tannaitic sources) we find (I translated this in something I wrote and am pasting it here):
      “R. Yehoshu’a ben Korha said: ‘It is an imperative [in a judgment] [for the judges] to [bring about] compromise, as it states “Execute the judgment of truth and peace in your gates. (Zacharias 8:16 )” But in a place where there is [absolute] justice, there is no peace, and in a place where there is peace, there is no [strict] justice! Rather, what kind of justice contains peace? You must say: “Compromise.”’”
      I'm not sure I agree that compromise is always the correct approach. It really depends upon the situation.


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