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Prenuptial agreement

שו”תCategory: HalachaPrenuptial agreement
asked 9 years ago

Hello Rabbi, I wanted to ask you if you know or recommend a prenuptial agreement that also contains a financial agreement and an agreement to prevent refusal of a divorce that is valid both in terms of halakhic law and in the laws of the State of Israel? Also, who is required to sign the agreement in order for it to be legally and halakhically valid?

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מיכי Staff answered 9 years ago

I haven’t checked, so I’m not familiar with the various agreements. In principle, I think it’s mandatory to sign such an agreement.

מיכי Staff replied 9 years ago

Questioner:
I tried to find an agreement of this type on the Internet, and I came across many reservations about such agreements and even many halachic problems (including the problem of a fake divorce). Some rabbis believe that as long as this agreement is in effect, the entire marriage is prohibited, just like marrying a wife without a ketubah.

Rabbi Rosen wrote in this article:
http://www.zomet.org.il/?CategoryID=262&ArticleID=247

About 15 years ago, several proposals regarding prenuptial agreements were presented to the Chief Rabbinate of Israel, headed by Rabbi Avraham A. Shapira and Rabbi Mordechai Eliyahu, and on 15 Bada 5426, an unequivocal decision was made to reject those proposals.
About 7 years later, Chief Rabbis Rabbi Yisrael Meir Lau and Rabbi Eliyahu Bakshi-Doron founded a think tank, including veteran dayanim, which was asked to test in practice several ideas on the subject of preventing women from being anchored. To the best of my knowledge, no decision was made to approve a text of an agreement that was in accordance with the law.

At the end of the article, he wrote:

In conclusion: I see no regulation in these agreements, and the harm in them is ten times greater than the benefit. And this is in addition to the halachic sufficiency of the kashrut of the get. May He enlighten our eyes with His Torah, and save us from errors, which we did not make in the matter of the law.

This article also contains extensive references to the subject.
http://www.zomet.org.il/?CategoryID=262&ArticleID=379#_Toc182719598

And in this article, the central opinions of the rabbis are presented:
http://din.org.il/2014/11/24/%D7%94%D7%A1%D7%9B%D7%9D-%D7%9C%D7%9B%D7%91%D7%95%D7%93-%D7%94%D7%93%D7%93%D7%99/

That is, it is possible that by signing such an agreement, my reward will be my loss. I assume that I am not the first to face this dilemma, and therefore I am looking for an agreement that is halakhically acceptable (if one exists). If you know of such an agreement, I would be happy if you could direct me to it.

Additionally, as I understand it, there is a dilemma here between two values: on the one hand, the welfare of the woman (in the case of refusing a divorce), and on the other hand, halachic problems regarding serious issues such as bastards, prohibitions on the wife of another, etc. Wouldn't it be correct to say that such serious prohibitions probably outweigh the welfare of the woman?
— I know the various versions of the agreement, but I completely disagree with the poskim and dayanim that you mentioned. A person who delays his wife without a ketubah does not lead to bastards or the problem of a wife of another man or any problem other than the prohibition of delaying his wife in this way, and at most an unplanned arrival (which also happens when sages cancel kiddushin retroactively).
If you are looking for references, the great poskim in the US have been supporting these agreements for years, and from what I understand in the OU organization, those who do not sign such an agreement are not allowed to marry.
In my opinion, there is no serious concern about a reasonable agreement drafted by rabbis who understand the matter. And the benefits are great and certainly justify it. I am completely in favor.
— I meant that the fear of bastards or the prohibitions of a man's wife comes from staying without a ketubah (this is a separate fear), but according to what the poskim write, the fear of bastards stems from the invalidity of the get because they claim that the get was given by the husband while applying financial pressure and sanctions on him in case he refuses to give the get, and therefore the get is invalid, but in fact the wife and husband are not aware that the get is invalid, and therefore the wife's new partner may violate the prohibitions of a man's wife, and their children will be bastards.

I would be happy to use such an agreement but I would first like to make sure that at least the fear of a fake get does not exist here. I would be happy to hear why in your opinion there is no fear of a fake get here from a legal perspective. Halachically

To give an opinion, one must discuss a specific agreement and not in general. Every agreement and its mechanisms. As a rule, in the versions that I am familiar with, there is a condition in the kiddushin and the coercion of a beid only fulfills the condition and therefore there is no fear of a fake get.
And also regarding ordinary coercion without a prenuptial agreement, in my opinion, in most cases when a get is forced for justified reasons, the fear of a fake get is pure conservative hysteria. It is appropriate to force in the appropriate circumstances, and the suitability is of course a question of society and time and period, and comparisons with the words of the ancient rabbis are misplaced conservatism.
— What do you think about a mutual respect agreement or a love agreement? Tzohar

I read the agreements and everything seems fine to me. There is no fabricated divorce here, and it does not even appear here that the divorcee is authorized to force (there are suggestions that in case of need the husband accepts that the divorcee will write a divorce for him, or force him to write a divorce and he agrees to this in advance). In this agreement the husband has taken on obligations (as has the wife), and if they cause him to expel the wife, in my opinion there is no fear of a fabricated divorce here. What he undertakes, he must fulfill. If it is difficult for him to fulfill what he undertook and that is why he expels her, there is no compulsion or unwillingness in this. This is an excellent reason for him to decide to expel the wife, and this is his absolute desire.
— A draft agreement to prevent a state of agunah in English is available online at the following link:
http://www.scribd.com/doc/33122968/Broyde-Tripartite-Agunah-Proposal

The draft agreement appears starting at section 12.

Do you think, at first glance, that there are any halachic red flags that one should be wary of?
In addition, would you sign such an agreement?

Unfortunately, due to time constraints, it is difficult for me to go through all of this and analyze the issue.
To the best of my judgment, the condition on page 12 is fine, although there are rabbis who would object to it because the halakha does not have a condition in marriage (meaning that after the marriage, the conditions of the kiddushin are void). In my opinion, it is not mandatory, since the cancellation of the condition with the marriage is only because the intention of the gift is assessed that he did not intend to leave the condition intact, since its implementation turns his cause into a cause of prostitution (because the kiddushin are excessive). But if he seriously intends for this condition to apply even after the marriage and does so before an important judge and in coordination with him, I see no reason to stipulate it. I have not gone over the rest.
— Is there any point in signing this agreement even though it is not accepted by most of the rabbis and the religious establishment in Israel and will probably not allow the agunah to be permitted in the event that they have to invoke the agreement? Or perhaps even one rabbi who recognizes the halakhic validity of the agreement is enough to permit the agunah?
— I know the practical way things work. I suppose if there is an agreement it will be difficult to ignore it. In any case, there is no reason not to sign and make an effort, at most it will be like in a situation without an agreement.

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