Pre-nup Agreements & Divorce

The Halacha which governs our lives as Jews regulates, as we know, marriage and divorce. When Jews marry this is done by the groom giving the bride an object of value. Traditionally this object is a ring. When a Jewish couple choose to end their marriage, this is done by the husband giving his wife a document known as a get.

    It is a fact of the Halacha that divorce can only be executed by the husband. A wife may petition a rabbinic court (beit din) to receive a get . but it is only the husband who can carry this out. The court may order the husband to divorce his wife, the court may even order the husband to be imprisoned (in Israel the rabbinic courts have this authority) but the court cannot terminate the marriage.

The reality that only the husband can terminate the marriage presents the husband an  opportunity  to abuse the Halacha. A married woman may not remarry until she receives a divorce. And while the rabbinic courts in Israel can ( and do) issue sanctions against and even imprison husbands who refuse to execute a get , an obnoxiously stubborn husband can refuse to obey the court. There are cases of husbands who have sat in prison for many years refusing to comply with the order of the court to divorce their wives. The situation is worse outside of Israel where rabbinic courts have no authority to punish recalcitrant husbands.

This is the way things are. As a response to this state of affairs solutions have been sought within the Halacha to correct the situation. The solutions that have been developed are various prenuptial agreements. These prenuptial agreements differ in their Halachic formulae, but in essence they levy financial penalties against the husband who refuse to execute a גט when a rabbinic court orders him to do so.

In this series we will learn about the basic laws of גיטין   and the various prenuptial agreements that have been composed.

I hope that this series of classes will  help make the use of these agreements more widespread and so minimize (or even eliminate) cases of women being held hostage in marriage.

Last week we had an introduction to the laws of divorce in Halacha. The Halacha teaches that a marriage can only be ended when the husband willingly gives document ( a גט פיטורין) to his wife.

A stubborn   husband may be persuaded to give this divorce document  to his wife by being physically beaten into submission by a court. But in most jurisdictions the Rabbinic courts are banned by secular law from pursuing this course of action. This being the case many women are trapped in marriages against their will.

Prenuptial agreements are a means to prevent  situations of women being trapped in marriages against their will. Prenuptial agreements achieve this goal by one of two means. They may   annul the marriage, eliminating the necessity for a גט altogether. Alternatively, they may  have penalty clauses which place financial burdens upon the husband who refuses to give his wife a גט. Recently a prenuptial agreement was composed by Rabbi Michael Broyde of the United States and Dr Rachel Levmore of Israel which combines both annulment and penalty clauses.

In order to understand prenuptial agreements we need to understand some of the basic rules of commercial law in the Halacha. Ultimately a prenuptial agreement is an agreement between two parties who wish to predicate their agreement on certain conditions. We will study today these basic Halachot which govern conditional agreements and some of the history of prenuptial agreements.

Hello Everyone,

last week we began our discussion of prenuptial agreements which are designed to avoid situations of women being trapped in marriages- agunot.

One type of agreement which had been suggested in the the end of the nineteenth century and which has been suggested again by some organizations is an agreement which annuls the marriage. The agreement states that should the husband refuse to give his wife a  valid Jewish divorce the marriage is annulled retroactively. There will have been no marriage (and therefore no need for a divorce). The greatest Poskim of the 19th and 20th centuries all agreed in the Halachic system it is impossible to have a marriage predicated on such a stipulation.

But there is one exception to this idea. The exceptional case is when the stipulation will obviate the necessity for levirate marriage- yibbum. In today’s class we will discuss in some detail the halachot of stipulations in marriage and how stipulations can be made in order to avoid a need for  yibbum/chalitzah.

Hello Everyone,

Over the past few weeks we have studied the basics of divorce law in the Halacha. We saw that since the ability to grant a divorce is ensconced solely with the husband this enables the husband to extort various concessions from his wife who seeks to end the marriage.

In order to prevent this abuse various suggestions have been made. One suggestion was to make marriages conditional. That is to say that if the wife seeks a divorce and the husband refuses to accede to her request then the marriage shall be annulled retroactively. This suggestion was made in the late nineteenth century and is occasionally made again. The great Poskim of every era reject conditional marriages for reasons that we studied last week.

Today we will study the idea of introducing penalty clauses into the marriage. If the husband should refuse to grant a divorce then he will be subjected to financial penalties. Annulment would be simpler since the marriage will be “erased” but it is possible that a husband may prefer to pay the penalty and the woman will not have her divorce.

Nonetheless various penalty clauses have been proposed and they have been proven to be useful in persuading recalcitrant husbands to give גיטין to their wives.

Today we will study the theories that come into play when composing these clauses.

Hello Everyone,

In previous sessions we discussed the question of whether Jewish marriages can be based on stipulations made between the bride and the groom. One such stipulation would be , if the groom does not give his wife a גט then the marriage should be annulled retroactively. This stipulation has been brought up for consideration repeatedly and has been rejected by the greatest halachic authorities. Their opinion is summed up in the phrase אין תנאי בנישואין. And while the Rema did  approve of conditional marriage to prevent Agunot from חליצה/יבום it is not possible to make a valid stipulation to eliminate the need for a גט.

Today we will talk about a different type of stipulation. We will talk about stipulations made by an entire community. The opinion of many great Rishonim was that a community may enact regulations regarding marriages and the community has the authority to annul marriages made in violation of their enactments. This being the case some rabbis have suggested that communities may nullify marriages when husbands refuse to give their wives גיטין.

Hello Everyone,

Over the past few weeks we have studied the subject of divorce in the Halachic system. We have seen that unscrupulous husbands can hold their wives hostage in marriages by  not giving them a גט. We also learned about various suggestions that were made to prevent these situations. The suggestions included theories for annulling marriages (which would make a גט unnecessary) or for the imposition of financial penalties that would compel the husband to give a גט.

Today in our final meeting we will discuss a relatively new suggestion. It is a prenuptial agreement which was composed by Rabbi Michael Broyde of the United States and Dr Rachel Levmore of Israel. They call their agreement “The Tripartite Agreement” and in their opinion it will put an end to wives being trapped in marriage.