Halacha2go

249. Prenuptial Agreements

There is a discussion amongst contemporary poskim regarding prenuptial agreements. Sometimes a husband and wife have irreconcilable differences, which unfortunately lead to divorce. Numerous solutions have been proposed over the generations to address the agunah scenario that occurs when a recalcitrant husband declines to give his wife a get voluntarily. According to Jewish law, a divorce is valid only if the husband places a get in his wife’s hands of his own free will. In the past, the term agunah was used to describe a woman chained to a marriage, unable to remarry because her husband had vanished without a trace, and there was no evidence of his death. In today’s day and age a different problem exists: Sadly, there are women today who are suffering as mesurovos get, refused a get by their husbands even after a Beis Din has ruled that the husbands must give a get to their wives.

This phenomenon is relatively new, as nowadays the religious courts are not empowered to take justice into their own hands, and the effects of social or religious sanctions imposed by any given Beis Din are severely limited. (Technically, there can also be men who are “chained” to their marriage, due to the decree of Rabbeinu Gershom that a woman cannot be divorced without her consent. Indeed, there are a considerable number of men who are in this sad predicament. However, in cases of extreme need, men have a way out: they can arrange for a heter meah rabbonim, permission from one hundred rabbis from three different countries to remarry. Women do not have this option.) It must be emphasized that a man who withholds a get from his wife after being ordered by a Beis Din to give one, is in violation of numerous Torah commandments and is considered a rashah.

There are countless sayings of Chazal as well as specific halachos attesting to the fact that our sages were extra diligent in attempting to assist Jewish women, agunos in particular. Of course, if in a particular situation the Torah rules that an agunah may not remarry, we are unable to change the law of the Torah in order to accommodate her in her plight; indeed, any attempt to change Torah laws in any matter is foolish and borders on heresy. Many ideas promulgated by various activists and popularized on social media to an undiscerning audience, while perhaps done with the most noble of intentions, are absolutely unacceptable and have been condemned by virtually all Gedolei Yisrael.

One form of prenuptial agreement under consideration, widely publicized in the USA, is an agreement in which the future husband and wife both sign, prior to being halachically married, that if down the line for whatever reason they no longer have a shared common residence, the husband obligates himself to pay the wife a certain amount of money per day—as long as they remain married according to Jewish law. Since these conditions would be very difficult for him to fulfill, by signing this agreement the husband will, so-to-speak, be “compelled” to give his wife a divorce should she want one. While these efforts are very commendable and could help resolve the plight of many women, it must be ascertained that such a prenuptial agreement is acceptable according to halachah (aside from other theological and social considerations which need to be evaluated independently). There are various opinions about this matter which are beyond the scope of this brief article. Aside from the fact that the agreement has to be a valid one, it can have serious repercussions in the future as to the legitimacy of the get, since according to halachah the husband must give it of his free will, and not be “compelled” to do so.

It is important to emphasize that any solution to this issue requires the full agreement of many gedolei hahora’ah after thoroughly having investigated all the issues.

The Rebbe warns that in our generation which is plagued by the “sickness” of publicity, where everyone has an opinion on everything, engaging in public discussion, even among Rabbanim, on this matter can pose a strong threat to the immutability of the Torah. This can lead to a situation where every individual, even those who have zero training in halachah—and are certainly far removed from knowledge in the intricacies of halachah relating to such a complex matter—will form their own halachic opinions how to “reform” and “adjust” the laws of the Torah in all the other 612 mitzvos as well, in accordance with the current culture and weltanschauung. As is often in vogue lately, anyone who can be more creative in devising a heter becomes the leading voice. Thus, this subject is best left to the domain of seasoned Torah leaders.

Due to the complex and sensitive nature of the laws of gitin, it is very unlikely that any innovation would ever legitimately change the halachic dynamics, where the husband can have leverage with regard to the get. Many suggestions which have been floated are halachically unsound, and any change would provide a dangerous precedent for those who wish to find fault with halachah. Just as living a Torah lifestyle can be challenging in many ways, but we believe that it is for our own good, albeit beyond our comprehension; we must recognize that the same applies to the structure of gitin, even the aspects that may seem ‘unfair’. Our focus should rather be on creating an environment where it is a given that it is absolutely unacceptable to withhold a get after a Beis Din has ruled that the husband grant it, and on mediating marital disputes to ensure that smaller conflicts don’t escalate into lifelong vendettas. #249^?1

Halacha #249: Prenuptial Agreements