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Modern Orthodox rabbis vote on historic prenuptial agreement

The Prenup supplants the ketubah as an enforceable Jewish contract between husband and wife.

By Cindy Mindell ~
WESTPORT – According to both the Torah and modern-day U.S. statistics, sometimes marriage works out and sometimes it doesn’t. As with many lifecycle and legal instances, American Jews adhering to halacha straddle both Jewish and civil codes of law when dissolving a marriage.
In order to end a marriage halachically, the husband must willingly give, and the wife must willingly receive, a Jewish bill of divorce known as a “Get.” In the absence of that document, the husband and wife are both precluded from remarrying, and later children born to the wife may bear the stigma of mamzerut, or illegitimacy.
In some cases, spouses have purposely withheld a Get even where their marriages have functionally ended. Some spouses have refused to participate in the Get process in order to extract concessions in divorce negotiations, in order to extort money, or simply out of spite.
A high-profile case in Washington, D.C. involves Tamar Epstein, an Orthodox woman who has been trying to get a Jewish divorce decree from her husband for more than four years.
“There have been ways men got around the precept barring remarriage and halachically had a second wife, but no way for women to do the same,” says Rabbi Yossi Pollak of Beit Chaverim Synagogue in Westport, a member of the International Fellowship of Rabbis (IRF) who attended the annual conference. “We felt that there was a certain inequity there.”
A new ruling by the IRF, an organization of 150 Modern Orthodox rabbis serving communities throughout North America and around the world, is designed to help facilitate that process. At its annual conference in May, IRF membership voted overwhelmingly in favor of the following resolution:

“IRF rabbis may not officiate at a wedding unless the couple has signed a halachic prenuptial agreement. IRF rabbis are further encouraged to participate ritually only in weddings in which the couple has signed a halachic prenuptial agreement. Ritual participation includes but is not limited to reading the ketubah, serving as a witness, and making one of the sheva berachot.”

With “The Prenup” resolution, the IRF is now on record as the only Orthodox rabbinical organization in the world to require its members to use a halachic prenuptial agreement in any wedding at which they officiate.
Traditionally, rabbinical courts — known as Batei Din — have been charged with the responsibility of overseeing the process of Jewish divorce, and ensuring that the Get is not improperly withheld. However, in modern society, Batei Din frequently lack the authority to do so. The Prenup is a document entered into by a man and woman prior to their marriage. It provides that, in the event of divorce, the Beth Din will have the proper authority to ensure that the Get is not used as a bargaining chip. With The Prenup, if one party refuses to go before the Beth Din for the Get, a daily fine will be levied, Pollak says.
The Prenup traces its roots back more than 300 years, and perhaps further. It was drafted in 1994 by Rabbi Mordechai WIllig, Sgan Av (assistant) of the Beth Din of America, and a dean at the Rabbi Isaac Elchanan Theological Seminary of Yeshiva University, in consultation with halachic and legal experts.
The document contains concepts introduced in 1664 by Rabbi Shmuel Ben David Moshe Halevi, the rabbi of Bamberg, Germany. That year, the rabbi published “Nachalas Shiva,” a compilation of Jewish legal forms that includes a version of the “tana’im,” a Jewish wedding document containing a provision closely resembling The Prenup. In a footnote to that provision, the “Nachalas Shiva” cites some authorities who held that the provision dates back to the “Takanos Shum,” the authoritative communal enactments adopted in the early Middle Ages by the leaders of the German communities of Speyer, Worms, and Mayence.
There are modern precedents and successors to the 1994 document. In 1993 and 1998, the Rabbinical Council of America (RCA) passed resolutions encouraging the use of prenuptial agreements such as The Prenup. In 2006, the RCA passed a resolution declaring that rabbis should not officiate at a wedding where a proper prenuptial agreement has not been executed. Unlike the IRF resolution, however, the RCA resolution encourages the signing of a halachic prenup, but does not require it.
In 1999, a group of leading yeshiva directors at the Rabbi Isaac Elchanan Theological Seminary of Yeshiva University, including Rabbi Hershel Schachter, issued a statement endorsing halachic prenuptial agreements generally.
As a 2005 ordainee of Yeshivat Chovevei Torah Rabbinical School (YCT) in Manhattan, Pollak is already familiar with The Prenup. Since the late ‘90s, YCT has required that all students getting married and ordainees officiating at weddings use the agreement, he says.
“Even before the resolution was passed by the IRF, I have always told couples who approach me that I will not officiate unless the agreement is signed,” he says.
He meets with some resistance. “Couples tell me, ‘We’re getting married; we don’t want to talk about the potential for divorce,’” Pollak says. “I tell them, ‘I hope this document will sit in a drawer and never be used, but you’re showing that your commitment to each other is so strong that you want to protect your spouse from your becoming crazy and abusive.’”The Prenup supplants the ketubah as an enforceable Jewish contract between husband and wife, Pollak says. “The ketubah has remained static and is not enforced,” he says. “We write it citing a monetary system that is not in use any more – how much is ‘200 zuz’ in today’s currency? – and it is unenforceable, especially in civil courts in the U.S. The wording of the ketubah is very strong: the husband has to pay ‘the shirt off his back.’ But even the Beth Din doesn’t consider it a practical or enforceable document because it’s so standardized and its terms are so difficult to figure out. One reason for the IRF resolution is to say that as long as it’s the best solution we can come up with, this should be part and parcel of every Orthodox wedding officiated today.”

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