Can you explain what is written in these new (Orthodox and other) marriage “prenups” that more and more young religious people seem to be signing? Is this in line with Jewish law? Is it appropriate to contemplate the end of the marriage before it even begins in Jewish thought?
Robert Burns the poet once noted that “the best laid plans of mice and men gang oft aglay”. Its true. So too occurs with lofty religious rabbinic concepts and statutes. In an effort to eliminate the validity of any divorce wherein both husband and wife did not mutually consent, the religious world found itself confronted with numerous cases wherein one side or the other, (mostly the men) refused to grant their assent to a Get unless they were paid exorbitant sums of money or granted one sided custodial agreements. Many religious courts would not punish those who made such demands nor grant a Get until the demands were met.
Israel , for example, punishes such offenders. They have in fact jailed recalcitrant individuals who refused to grant a Get to their wives.In America, the religious courts do not have such authority. Many young wives subjected to unreasonably high demands simply succumbed in order to be able to remarry once again. Many women relate horror stories that held off their ability to remarry for years..One method developed was to provide social pressure against those who refuse to give their wives a Get.
The problem, however, is that the incidence of such horror stories became so widespread, that many Modern Orthodox rabbis began instituting the necessity of requiring prenuptial agreements prior to performing any marriage. The main clause stipulated in the “pre nup” agreement is that in the event that either side seeks a divorce, both the bride and groom consent to a religious Get and agree to a resolution of differences via a rabbinical court, (Bet Din) This, of course, is totally in line with Jewish law. Yet, some rabbis have rules that the ”pre nup” is a form of coercion that would nullify a Get. Such a view is not the consensus position.
Though at a wedding no one wishes to even contemplate a divorce, the rabbis feel that it is worth a moment’s discomfort to prevent the emotional and financial discord that has become so prevalent in the event of a divorce.
According to halacha (Jewish law) a husband can divorce his wife, but a wife cannot divorce her husband.The power of divorce rests solely in the hands of the man.In most cases of secular divorce is either accompanied by or is followed by a Jewish bill of divorce, called a “get.”In such cases, the man will give his wife a get and they are divorced and both free to remarry should they choose.
In some cases, whether because of anger or other motives, a man may choose not to give his wife a “get.”Under Jewish law the woman has no recourse.She cannot initiate a “get” on her own, and becomes what is known in Jewish law as an “agunah”(literally, chained).She technically remains married to her husband and cannot marry another, without being considered guilty of adultery.Neither can she move on with her life unencumbered by her ex-husband.
Traditionally Jewish courts have tried, with limited success, to exert social pressure on such a husband.Recently, over the past decade, Orthodox rabbis have sought to come to prevent such issue from arising through the use of a special halachic prenuptial agreement signed by the bride and groom in advance of their betrothal.
These prenuptial agreements provide the “bet din” (Jewish court) jurisdiction over property settlement, and other germane issues and provide the court with the ability of levying monetary penalties on a husband who refuses to participate in the “bet din” or abide by the rulings of the “bet din.” In this manner, the prenuptial agreement seeks to prevent any future bride from falling into the category of an “agunah.”
According to modern halachic authorities, such agreements are valid and binding.The hope is that they never need to be used and if needed are helpful if what is, by all accounts, a tragic circumstance.
While some might question the propriety of contemplating the end of a marriage, as it is about to begin, I feel that in many ways this has the potential to strengthen a marriage.With the use of such a prenuptial agreement, both the husband and the wife know that they enter into the relationship by their own free will, and they remain husband and wife by their own free will.This agreement lessens the halachic power one has over the other and allows them a greater sense of equality
I leave the explanation of Orthodox "prenups" to my Orthodox colleagues. However, I would point out that the ketubah itself is very much analagous to the modern pre-nuptial agreement. The traditional ketubah is given to the bride as a guarantee of what her spouse will provide for her in case of divorce. In that aspect, it is more like an American prenuptial agreement than the ketubah additions that are a pre-agreement to a get (Jewish divorce document) which hopes to relieve the difficulty of women who find themselves without a husband, but not formally divorced - an agunah ("chained woman"). So, I would say that such agreements are surely in agreement with Jewish law.
As to the Jewish value of contemplating the end of a marriage before it begins, we can hear the same argument about the secular pre-nuptial agreement - that couples contemplating marriage remove the worry about divorce so they can enter into marriage with a clear conscience. Although I certainly understand the distaste that may come in such contemplation, there are many ways to see that providing for a safe emergency exit, though we hope never to use it, is as valuable in a marriage as much as a building.
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