The Pre-Nup, by Ellyse Borghi
In continuation of my disillusionment, through law school I was taught about halachic prenuptial agreements. I learnt about them both in a course on family law and another course specifically on solutions to the problems of agunot.
What I learnt was very disappointing.
Where a regular prenuptial agreement is designed to protect property owned by one of the parties from before the marriage from being divided during a divorce, a halachic pre-nup is created to ensure the delivery or acceptance of a Get.
There are many ways that these agreements can work. The basic level is simply a civil contract that says that should one of the parties file for divorce and the Get is not given within a year (or another specified period of time) then every day after that, the recalcitrant party owes the other money. A self-imposed financial penalty for Get refusal. These agreements are binding in civil courts.
Another clause that could be added to these agreements is a more halacha based solution. Where the spouses sign that in the event that a year has passed and the matter is still unresolved that the rabbinic court is authorised to appoint an emissary (shaliach) to give/accept the divorce on the unco-operative spouse’s behalf.
An additional clause can also be added to these agreements which is even more halachically complex. This clause stipulates that the marriage is entered on the condition that if one of the parties files for divorce, the Get will be given or received within one year. If this condition is broken then the marriage become’s retroactively annulled because the condition upon which the marriage was based did not eventuate. A bit tricky right?
Tricky or not, these are some of the options available for halachic pre-nups.
Now some may say that it’s very unromantic to sign a pre-nuptial agreement. Others may say that you are jinxing your marriage on your wedding day. But ultimately a Ketuba is another prenuptial agreement, but it has become so standard and accepted that it is no longer viewed that way.
That is what the beit din in the city that I’m from is attempting to do. In Melbourne they want to normalise the signing of a halachic pre-nup for all Jewish couples marrying. Therefore, all Rabbis belonging to the Rabbinical Council of Victoria recommend to couples that are set to marry, that they sign a suitable version of these pre-nups. This way even if you know nothing about the matter you will still be protected. This way even if you belong to the ultra-orthodox community you will still be protected.
Sadly, however the situation in Israel is very different. Not only are these agreements not encouraged but they may actually be detrimental to the situation. You see, a Get has to be given by the man of his own free will. There cannot be any external factors compelling him to give this divorce. Therefore, since the rabbinic courts in Israel not infrequently take a very stringent stand on this requirement they interpret the prenuptial agreements as being external pressure forcing him to give the Get thereby invalidating it. Hence the agreement that was designed to protect you from being trapped in a marriage could actually be the thing that keeps you stuck there! It’s simply absurd!
It’s completely ridiculous that these agreements that are upheld and even recommended by rabbinic courts across the world are being rejected in Israel. Is there a different Torah in Jerusalem? Absolutely not. The rabbinic courts in Israel are rejecting these agreements because they move the jurisdiction away from the beit din to the secular courts. The financial penalty contracts are secular contracts binding in secular courts. It’s a power struggle, plain and simple. But it’s a power struggle with people’s lives. With people’s families.
This disparity between rabbinic rulings in Israel and in the rest of the world is another one of the myriad of reasons for the privatisation of the beitei din and the separation of religion and state in Israel. How much longer can this absurd situation continue?
On an unrelated note this will be my last blog for CWJ as I have returned to Australia to finish my law degree. I would like to thank all the staff in particular Susan and Elana for their patience and support and to commend them publically for their untiring work to improve the family law system in Israel. Keep up the inspiring work!
