The Power of Prenuptial Agreements by Rabbi Howard Jachter

1995/5756

            Parshat Chayei Sarah, which speaks primarily of the marriage of Yitzchak and Rivka, presents an opportunity to learn about the halachot of marriage.  It is accordingly appropriate to discuss an increasingly common feature of Orthodox weddings, the prenuptial agreement.  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.  As a member of the Beit Din of Elizabeth for more then two years, this author has witnessed many situations in which both women and men suffered because of a recalcitrant spouse.  Experience suggests that if every couple signed a prenuptial agreement, the problem of עגון 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 גט in case of civil divorce.  First, such an agreement is not halachically valid because it is a "קנין דברים," it lacks any monetary consideration (see רמב"ם הלכות מכירה ה:יא and ביאור הגר"א אבן העזר קלד:יב).  Second, a גט must be given by the man without coercion, and if a man is coerced to hand his wife a גט (in a case where halacha does not sanction coercion to give a גט) the גט is not valid (גיטין פח:, רמבם הלכות גרושין ו:א-ב and שלחן ערוך אבן העזר קלד:ז-ח).  Rabbeinu Gershon, in addition, instituted that the wife's consent is required in a גט proceeding (רמא, אבן העזר קיט:ו).  In fact, Rabbi Akiva Eiger (אבן העזר קיט:ד) cites the opinion of the Maharam Mintz that if the wife is coerced to accept a גט (subsequent to Rabbeinu Gershon's enactment), the גט is invalid (also see תשובות נודע ביהודה אבן העזר עה, and Rav Yehuda Amital דף קשר א:קמא-קמב).

            Similarly, an agreement that stipulates that if either husband or wife refuse to give or receive a גט 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 גט.  Most authorities rule that monetary coercion constitutes coercion to give a גט (מאירי גיטין פח: רמ"א אבן העזר סימן קלד סעיף ה, שו"ת משכנות יעקב לח).

            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 בית יוסף קלד:ה ד"ה כתוב בקונדרישין,  רמה קלד:י, פתחי תשובה קלד:י, ערוך השלחן קלד:כו-כט and חזון איש צט:ה).  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 4891 issue of the Journal of Halacha and Contemporary Society (pages 52-14).  In fact, Rav Moshe Feinstein (אגרות משה אבן העזר ד:קז) 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 גט, 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 (גיטין פח:, שולחן ערוך קלד:ז and see כתובות עז and שולחן ערוך סימן קנד for the grounds in which a man may be coerced by a Beit Din to give his wife a גט).

            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 Lisa, 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 גט (see פתחי תשובה קלד:ט).  This would involve the husband waiving his Halachic rights to his wife's earnings מעשה ידים() 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 dollars a 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 מעשה ידים 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 "מעכשיו" (that the obligation begins "as of now") and "קנו בבית דין חשוב" (that the husband made a קנין סודר in an esteemed Beit Din) have been included to overcome any objection that this obligation constitutes an אסמכתא - a penalty clause (see שולחן ערוך חש"מ ר"ז:י"ד-ט"ו).  In fact, Rabbi Zalman Nechemia Goldberg told this author that traditionally, this has been the formula used by the קצות, נודע ביהודה, and the נתיבות to avoid אסמכתא in the document known as the שטר חצי זכר (see Rabbi Goldberg's essay that appears in Techumin IV:243-153 and Rabbi Feivel Cohen's שטר חצי זכר document published in his sefer קונטרס מדור לדור).

            This type of document is not a novel idea.  First, as we mentioned, it is based on an agreement proposed by Rabbi Yaakov of Lisa.  Second, in medieval times the communities of שו"ם (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 חבר בית דין in instances of עיגון, 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 עגון.  However, surveys and anecdotal evidence indicates that this document is being used at least at half 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. 

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