The Importance of Prenuptial Agreements by Rabbi Chaim Jachter


              Because of the great importance of ameliorating the tragedy of Igun, we are reprinting the essay we published last year for Parshat Chayei Sarah.

              We will discuss the prenuptial agreement formulated by two outstanding American Gedolim, Rav Mordechai Willig and Rav Hershel Schachter, in cooperation with two great Israeli Gedolim, Rav Zalman Nechamia Goldberg, and Rav Chaim Zimbalist.

              The need for a Halachically approved agreement is well known.  Too often the "Get" is used by a spouse as leverage to seek money, child custody, or inflict pain upon an estranged partner.  Experience suggests that if every couple signed a prenuptial agreement, the problem of Igun would most likely be greatly reduced.

              Formulating a Halachically sound agreement, however, is far from simple.  One cannot simply sign an agreement to give or receive a Get in case of civil divorce.  First, such an agreement is not Halachically valid because it is a 81*0 $"9*., it lacks any monetary consideration (see Rambam Hilchot Mechira 5:11 and Biur Hagra Eben Haezer 134:12).  Second, a Get must be given by the man without coercion, and if a man is coerced to hand his wife a Get (in a case where Halacha does not sanction coercion to give a Get) the Get is not valid (Gittin 88:, Ramban Hilchot Geirshin 6:1-2, Shulchan Aruch Even Haezer 134:7-8).  Rabbeinu Gershom, in addition, instituted that the wife's consent is required in Get proceedings (Rama Even Haezer 119:6).  In fact, Rabbi Akiva Eiger (Even Haezer 119:4) cites the opinion of the Maharam Mintz that if the wife is coerced to accept a Get (subsequent to Rabbeinu Gershom's enactment), the Get is invalid (also see Teshuvot Nodeh Bihehuda Even Haezer E.H 75, and Rav Yehuda Amital).

              Similarly, an agreement that stipulates that if either husband or wife refuse to give or receive a Get then the aggrieved party will receive a certain sum of money from the spouse each day, is Halachically questionable.  While such an agreement does not run afoul of the "Kinyan Devarim" rule, it nevertheless may cause improper coercion of a Get.  Most authorities rule that monetary coercion constitutes coercion to invalidate a Get (Meiri, Gittin 88b; Rama Even Haezer 134:5; Mishkenot Yaakov 38).

              One may argue that this type of agreement does not constitute monetary coercion, since the monetary penalty was self-imposed.  This issue, though, is embroiled in a Halachic dispute that has raged from the time of the Rishonim to modern times (see Beit Yosef 134; Aruch Hashulchan 134; Pitchei Teshuva 134:10; Chazon Ish 99; Aruch Hashulchan 134:29 and others).

              Accordingly, Halachic authorities have not endorsed an agreement which includes a self-imposed monetary penalty since it is mired in controversy.

              There are, however, at least two ways of constructing a Halachically acceptable prenuptial agreement.  The first would be a binding arbitration agreement in which husband and wife bind themselves to the jurisdiction of a particular Beit Din.  This agreement would require a recalcitrant party to follow the ruling of the chosen Beit Din.  A secular court would presumably enforce such an agreement.

              This agreement is Halachically acceptable because it does not coerce either side to give or receive a Get.  The couple is not agreeing to participate in a Get ceremony.  They are merely agreeing to follow the ruling of a particular Beit Din.  An example of such an agreement was drafted by Rabbi J. David Bleich and appears in the Spring 1984 issue of the Journal of Halacha and Contemporary Society (pages 25-41).  In fact, Rav Moshe Feinstein (Igrot Moshe Even Haezer 4:107) approves of this type of document.  This agreement empowers a Beit Din by facilitating its ruling to be enforced in civil court.  For example, if a Beit Din rules that a husband is required to give a Get, then the wife may petition the court to force her husband to honor the arbitration agreement he signed.  This action does not constitute improper coercion, if the civil court merely enforces the ruling of the Beit Din (see Gittin 88b, Shulchan Aruch 134:7, Ketuvot 77, and Shulchan Aruch 154) for the grounds in which a man may be coerced by a Beit Din to give his wife a Get).

              The second type of document was formulated by Rabbis Goldberg, Schachter, Willig, and Zimbalist.  It is based on a type of agreement formulated by the great Rabbi Yaakov of Lissa, the author of the Chavat Daat, Netivot, and Torat Gittin.  He wrote that an agreement to give a Get can be formulated in a manner which does not constitute coercion to give or receive the Get (see  Pitchei Teshuva 134:9).  This would involve the husband waiving his Halachic rights to his wife's earnings (/3:% *$*.) while at the same time maintaining his marital obligations to support his wife.  The man is thus motivated to give a Get to release himself from his financial obligations to his wife.  He explains that this is not considered coercion because the husband's marital obligations are a result of the marriage and are not linked to his giving a Get.

              The four great contemporary Rabbis, based on this idea of Rav Yaakov of Lissa, devised the following agreement.  The husband agrees to pay one hundred and fifty dollars per day to support his wife in case they do not maintain domestic residence (Rabbi Elazar Meir Teitz, head of the Elizabeth Beit Din, has suggested that the obligation commence after a civil divorce has been completed).  This obligation would remain in effect for the duration of the Jewish marriage.  In addition, the husband waives his rights to the /3:% *$*. of his wife.  One should note how the document carefully avoids linkage of the husband's support obligation to the giving of a Get.

              The husband is protected from a wife who may wish to take advantage of the agreement, by a clause which states that the monetary obligation is terminated if he wife refuses to follow a ruling or recommendation of the Beit Din.

              In addition, the clauses /3,:*& (that the obligation begins "as of now") and 81& ""*; $*0 (:&" (that the husband made a 81*0 2&$9 in an esteemed Beit Din) have been included to overcome any objection that this obligation constitutes an !2/,;! - a penalty clause (see Shulchan Aruch Choshen Mishpat 207:14-15).  In fact, Rabbi Zalman Nechemia Goldberg told this author that traditionally, this has been the formula used by the Noda Biyuhuda, Ketzot and the Netivot to avoid !2/,;! in the document known as the :)9 (7* ',9 (see Rabbi Goldberg's essay that appears in Techumin IV:342-351 and Rabbi Feivel Cohen's :)9 (7* ',9 document published in his Sefer 8&1)92 /$&9 -$&9).

              This type of document is not a novel idea.  First, as we mentioned, it is based on an agreement proposed by Rabbi Yaakov of Lissa.  Second, in medieval times the communities of :&". (Speyers, Worms, and Mayence) used a similar prenuptial agreement which, in fact, is published in the unabridged version of the Kitzur Shulchan Aruch.

              As one involved as a ("9 "*; $*0 in instances of Igun, I often wish that everyone would sign a Halachically sound prenuptial agreement.  We have too often encountered situations in which such an agreement might have prevented a situation of Igun.  On the other hand we have seen at least two situations in which a husband agreed to give a Get because he had signed a prenuptial agreement.  However, surveys and anecdotal evidence indicate that this document is being used at the majority of the weddings conducted in our community.  Let us hope that everyone will sign the agreement when they marry and that the agreement never be needed in practice.

The Minhag of Kitniyot - Part I by Rabbi Chaim Jachter

Hazmana to Beit Din - Part III by Rabbi Chaim Jachter