Religion & Beliefs
Should You Get a Pre-Nup Alongside Your Ketubah?
By Tamar Fox / June 3, 2008
Rabbinic Courts in Israel are looking at a new possible solution for the problem of Agunot, or women whose husbands won’t grant them a divorce. The controversial fix-it: A prenup. It’s funny that this should garner any controversy at all, since an integral part of a Jewish marriage, a ketubah, is already one big step towards a prenup. A ketubah is basically an insurance statement for a woman, making sure she won’t be left penniless if her hubby runs off or drops dead. If we’re already talking about unpleasant stuff like abandonment and death at the wedding, what’s a little financial negotiation? A Jerusalem Post article summarizes some of the anti-prenup feeling in the Orthodox world:
The use of prenuptial agreements to facilitate the divorce process is a controversial issue among Rabbinic Court judges. Some rabbis oppose the use of most prenuptials, claiming the agreements make it too easy for one side to end a marriage. They are concerned that making divorce too easy will endanger the Jewish family institution. They also argue that the use made in prenuptials of monetary incentives to encourage a recalcitrant partner to acquiesce to divorce is really a form of coercion prohibited by Jewish law.
Bullshit and bullshit, as far as I’m concerned, and I’m not the only one. Rabbi Eliyahu Ben-Dahan, administrative head of the Rabbinic Courts, is on board for prenups, and so is Marc Stern, who wrote an article called ‘A Legal Guide to the Prenuptial Agreement for Couples about to Be Married’ published in a book called The Prenuptial Agreement – Halakhic and Pastoral Considerations by Rabbi Basil Herring and Rabbi Kenneth Auman. Prenups aren’t romantic or fun, but neither is being stuck in a marriage you can’t get out of. Let’s save everyone some grief and legal fees down the line.
Addendum: Check out this post on the Hatam Soferet blog about a woman scribe writing her own get. Simultaneously sad and empowering. (Hat tip, Jewess).
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"If the man refuses to give the get, there is a large monetary cost tohim. If the woman refuses to accept it, she just doesn’t get the largepayment, she doesn’t have any out of pocket negative consequences".i have gone through this experience.
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Regardless of any religious credentials people need to have freedom. Just because a religion says things should be one way doesn’t mean it is the best way. The Jewish religion needs to adapt to the fact that people deserve the chance of freedom. I’m sure many couples struggle to save marriage and end up depressing each other because they both feel trapped by their faith. Those who want to stop divorce/prenuptial agreements are being very narrow minded and not caring about the right to individual freedom and choice.
What I think may be relevant, at least to the emotional pull of this discussion, is the seemingly different intent behind the purpose of a pre-nup and a ketubah. I am an attorney (non-practicing now, but I used to draft pre-nups) and the wife of a ketubah artist, so I see both sides.
It is true that a traditional ketubah can be considered a form a pre-nup – it was not at all intended to be a romantic part of the process. (Here is a loose translation of the traditional ketubah of which there are many variations: http://www.mpartworks.com/ketubah_faq_orthodox.htm)
A ketubah was very progressive at its inception in that it recognized a woman’s right to own property. It did, by its very nature, contemplate the possibility of divorce, but the purpose was to provide for the woman and not to provide for divorce itself. Whereas the purpose of a pre-nup is to provide solely for the divorce (or sometimes death) of one partner. At its most progressive, it alleviates issues that may sometimes arise when one partner is significantly more wealthy than the other. In these cases, the pre-nup can actually be a "romantic" document to calm everyone’s nerves about the less wealthy spouse’s intentions.
Any halachically permissable document that can help towards preventing a woman from becoming an agunah should be embraced. The pre-nup might not be perfect, but if nothing else it is an acknowledgement from (some) rabbinic authorities that problem of agunot is real and needs to be addressed.
If you look at the actual document in question, it provides the couple the option of selecting the amount of jurisdiction the beit din will have – there is the option to select Get only, or to select Get and finances/custody. I was discouraged from signing such a document by my right-wing rabbi. It ended up taking me years, and much financial and emotional expense, to get a Get. I advocate any halachic method that can help prevent other women from going through such an experience.
You obviously have not done the background or perhaps even read the RCA prenup. This is a very one sided agreement slanted towards the wife.
What it says in essence is that if there is a breakdown in the marriage, both parties will show up for a get, the man will give it and the woman will receive it.
If the man refuses to give the get, there is a large monetary cost to him. If the woman refuses to accept it, she just doesn't get the large payment, she doesn't have any out of pocket negative consequences.
As far as deciding the split, support, etc. the prenup gives the option to go to the Beit Din, with several options as to how they will decide, including the secular guidelines, but the prenup does not require that the monetary issue be presented to the Beit Din.
That being the case, the document is extremely one sided, and I would advise any man not to sign it. If a woman's fiance agrees to sign it, and she doesn't, I suspect her of being a fool.
Your ketuba is already such a document. Read it — it's not a flowers-and-sunrises expression of the rapture of love. It's a financial settlement, whose amount becomes payable in a divorce. Recognizing the divorce rate isn't Hollywood; it's reality. And it makes people act in a really ugly way. A woman who has absolute faith that she and her fiance will never get divorced, or that, if they do, he will never withhold a get, is a naive fool.
Wouldn't getting a Pre-Nup alongside your Ketubah be like saying "this marriage will probably end in divorce, so we should prepare now?" A little Hollywood wouldn't you say? That kind of sounds rather depressing and anti Jewish to me. It puts the possibility of divorce in the back of one's head throughout the marriage, which doesn't seem very romantic.
Tarfon's right, actually. You want to talk about batei din that don't respect women, you'd be looking at the more haredi and right-wing ones. RCA is as good as you're going to get, equality-wise.
And the RCA came out vocally against the revocation of conversions, Danger, or does that fact not fit in with your predetermined conclusion?
"Danger" has committed what may be libel, and what is certainly misspelling, in his allegation of "purjury". He's also mistaken about how a prenup operates. Our prenup states that, if we should (hv"h) become civilly divorced without my giving my wife a get, I will be obligated to pay her a specified amount (with a specified inflation adjustment factor) by way of support each day, until I give her a get. The agreement is designed precisely so that it will be enforceable in the _civil_ courts — they, unlike the rabbinical bet din, have actual power to impose sanctions if I should I fail to pay.
Never, Never, sign an Orthodox Pre-nup. Despite all promises the RCA beth din expects to settle the financials. The woman will always lose or gain less money than in secular court. The beth din openly does not accept no fault and has a reputation for believing the man when he claims that there was adultery. Also, the man is more likely to have Rabbinic support and the Beth Din will accept it.
The pre-nup has never been taken to secular court and all law review articles and moot courts have show that it will not hold up in court- just like the shaariah divorce does not hold.
Any gains have come from the NY (NJ, Quebec et al) get law not from the rabbis.
Signing the document me giving your future to a bunch of misogynist Modern Orthodox rabbis. if you want to get personal – most of them have records for purjury. ANd now several members of the Beth Din has come out against secular law. They are also supporting the Haredi rabbis to invalidate conversions.
It has no legal status. Beware.
Basil Herring – of the Rabbinical Council of America (RCA) – came out in favor of prenups. The RCA strongly encourages its member rabbis to strongly encourage their congregants to incorporate the prenups into their wedding preparations. My rabbi did, and we signed two – one giving a dollar amount to the ketuba and authorizing its enforcement by secular courts, if necessary – and another stipulating a financial penalty for withholding a get.
Romantic? Hardly. But like you said, we're already signing contracts, so what's another?
And in an interesting twist, my rabbi said we could use the prenup forms to give out more 'kibudim' at the wedding. Halachically, ketubot and the wedding ceremony itself have to be witnessed by mitzvah-observant, adult men. The prenups can be witnessed by women or non-frum relatives (gasp!), providing a clever way to honor Aunt Sadie or Uncle Chris at an otherwise Orthodox function.
This is just another example of the RCA and the rabbinic leadership structure of American centrist orthodoxy in general being several decades ahead of their Israeli counterparts. But at least they're thinking about it over in Israel. I wouldn't hold my breath, though.
Yishar kohech. Every Jewish couple that marries should do this. When my wife and I got married in 1980, we had one, because we thought it important to do what we could to minimize the possibility that she would become an aguna. There apparently are halachic issues regarding use of financial incentives to induce the recalcitrant husband to give his wife a get, but reliable folks (and not just liberals) in the Orthodox world say that it is possible to structure a prenup to avoid those problems.
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