For the past couple of months I've been writing about various prenuptial agreements. In the title above, I used the word "halakhic" to refer to those agreements that are intended to be used by couples who choose to marry in an Orthodox ceremony, particularly via the Israeli Rabbinate (including Tzohar rabbis), but any Orthodox ceremony is relevant.
That doesn't mean that other prenuptial agreements that deal with finances, child care, devotion to one another, etc. are not halakhic. Indeed, they most likely are. But I am not concerned with them, so long as a couple does not delude themselves and think that they then can proceed safely to marry in a standard Orthodox ceremony. I am concerned with those prenups that are specifically aimed at preventing women from becoming agunot (or men from becoming agunim). This is a summary of my main concerns. I will put the fundamental patriarchal nature of the Orthodox marriage aside (though this is something that I oppose vehemently). It is a different topic. Though I keep referring to "women", the same applies to a man whose wife might refuse to accept a get, except that he is no where in as difficult a situation as a woman whose husband refuses to give her a get, and so I've chosen to refer to women.
1) Before I would tell women to "rest assured" that they are protected by any of these prenups (read all my posts from July until the last one - you'll see which ones are more commonly used), I would want to see documented evidence of women who had to go to civil court to enforce it, then received their gittin in the beit din without a glitch. Such documented evidence must include rulings from batei din in Israel. I have so far heard a personal story of a woman who was told by certain dayyanim that if they knew there was such an agreement (not even enforced in a civil court), they would declare a get that follows as invalid. It is not enough that certain rabbis have co-authored one agreement or another. The rabbis involved in formulating the agreements tend to be on the more "liberal" side of the spectrum, and do not represent the dayyanim who serve in the batei din. The prenup that would most likely be accepted by the batei din is one for which I have significant critique - it is the one that I discussed in my last post, and it has gained no public awareness, to the best of my knowledge. And, it is also one that is most likely to have difficulties in the civil courts (I explain why in that post).
2) All of the prenups that are based on "enhanced" monthly support payments (and that pretty much covers them all, except for conditional marriage), so that the recalcitrant spouse will not want to prolong the recalcitrance, will not be effective if the recalcitrant spouse is very poor (because s/he won't have from what to pay, anyway) or very rich (because $1500/month won't put a dent in a spiteful guy who earns tens of thousands of dollars a month).
3) None of the prenups based on "enhanced"monthly support payments will help if the recalcitrant spouse leaves the country. A case of a husband who absconded with the wedding gifts and left the country just two days after his wedding recently made headlines when a private beit din annulled the marriage. None of these prenups would have helped this woman. (Nor did the 40,000 NIS bribe that the State beit din paid the extortionist husband out of State funds, i.e., taxpayers' money. Why should taxpayers have to foot the bill for the problems that result from an archaic, injust halakhic system?) And, we need to hear the results of a court case to see if the State will recognize the decision of this private beit din. In two previous posts, I wrote about cases in which the recalcitrant spouse - one time the women, one time the man - left the country. You can read them here and here.
4) These agreements do not address problems that occur less frequently, but are still very severe when they occur: iggun due to disappearance of a spouse, perhaps for innocent reasons on the spouse's part, iggun of a widow who is waiting for halitza (the quite degrading ceremony that must be performed so that levirate marriage is not required; sometimes the yabbam extorts, and sometimes he is simply too young), iggun of a woman whose husband has lost the mental capacity to give a get. These types of cases might be rare these days (once they were not rare at all and various halakhic methods were commonly used to try to prevent their occurrence), but they are tragic when they do occur, and they are indicative of the basic problems of qiddushin. People don't discuss these much - they really are an embarrassment to Jewish law.
5) The above problems all compound and give cause to my main and all-encompassing objection: these prenups mislead couples into thinking that a halakhic marriage is fine and dandy so long as they sign one of these agreements. It allows people to continue to hide their heads in the sand instead of facing the truth about qiddushin and what it truly entails. The foundational problems will not be fixed with such an approach.
That's a shame.
See you at the Kolech conference, where I'll be speaking about the meaning and value of a ketuba today.