Prenup, Shmenup

torn-contract-picI’ve written before about the innovative halachic prenup, and its effectiveness in preventing get abuse. Both husbands and wives would be financially penalized for each day they refuse to give or receive a get.

The halachic prenup has become a standard part of pre-wedding preparations in modern orthodox circles. While there has been some pushback against the contract in haredi circles, and it usually isn’t a standard part of haredi wedding proceedings unless the couple requests it, I haven’t heard of the halachic prenup being declared assur until now.

Yeshiva World News published a decree from Eida Chareidis Ravaad HaGaon HaRav Moshe Sternbuch, in which he publishes a lengthy responsa adamantly opposed to the halachic prenup.

Rav Sternbuch feels that the halachic prenup is a break from acceptable tradition and that it can compel a husband to unjustifiably give his wife a divorce. If the husband feels forced, because of the financial penalty, to give a divorce, it won’t be a valid get.

He also mentions, that the halachic prenup destroys the institution of marriage because in the past, if a man refused to give a get, the woman would be more likely to give up her demand for a divorce and go back to the marriage. Now, with the husband being forced to comply, the divorce is more likely to happen.

Ummm….yeah, that’s kind of the point of the halachic prenup.

Rav Sternbach is urging gedolim in Israel and America to sign against the halachic prenup, as in his opinion, divorces based on the document are invalid, and will lead to mamzerim.

If half of the orthodox world accepts the prenup, and the other half doesn’t, that will affect the ability of divorced women to remarry or have their second marriages accepted as valid. The resulting children from such second marriages will be considered mamzerim by the population that doesn’t hold of using a halachic prenup.

Since many of us in the modern orthodox world aren’t strangers to the phenomenon of our kids becoming more haredi, our children could be affected by the rejection of the halachic prenup. If a woman divorces with the assistance of a halachic prenup, remarries and has children with her second husband, those kids could be categorized as mamzerim and be unable to marry within the haredi system.

As more couples with halachic prenups divorce and remarry, this will become an issue that will cause a major rift between the different orthodox factions.

Why is it that rabbis are working so hard to find reasons to nullify any advancements that can benefit women and prevent men from holding divorce over their heads? If it was the woman who held the keys to divorce, they would be bending themselves into pretzels trying to find a way to free men shackled to a dead marriage. Even now, if a woman refuses to receive a divorce, a man can still remarry with the signatures of 100 rabbis. Where are the kulas and loopholes for women?

If there is a problem with the amount of the monetary fine set forth in the halachic prenup, so change the amount. Why nullify the document altogether when it might prevent even one woman from becoming an aguna? Is it really better for a woman to return to a marriage she finds loathsome than to divorce? Is that what our tradition of marriage is all about – marriage at all costs?

I was telling my husband the other day that I don’t believe a long marriage is an indication of a good marriage. There are plenty of white haired couples slicing a 50th wedding anniversary cake in front of smiling friends and family who have been miserable their entire marriage. The high point is that anniversary party where they can feel quiet satisfaction that they martyred themselves for the sake of their family. It makes everyone so much more comfortable when mom/dad/bubby/zayde remain married and act like they’ve been happy.

That’s the real marriage tradition – suck it up.

People might argue that couples divorce too quickly nowadays. We shouldn’t make the process so easy – maybe if divorce is costly and difficult couples will rethink their decision. Is that what is truly best for our children – unhappy parents either viciously fighting or living under an uneasy truce that threatens to break at any moment?

In my observations and experience, women don’t ask for a divorce on a whim. That’s part of the whole stereotype about women being flighty, hormonal, and quick to change our minds. In the orthodox world, the social and financial cost of divorce is still steep. I would venture a guess that by the time a woman finally asks for a divorce, she’s already been working up the courage to do so for a quite some time, perhaps even years.

The declaration against the halachic prenup indirectly endorses men to withhold a get, by stating that doing so has compelled many women to return to the marriage, as if that’s a good thing. By financially penalizing a recalcitrant husband, the entire system of withholding a divorce and coercing the wife to return is toppled. Obviously, this was a mainstay method to uphold the traditional marriage system, and it’s now being threatened by the halachic prenup. We need to put the fear in women that they will become agunos in order to discourage them from seeking to divorce.

If that’s the acceptable tradition the halachic prenup is ruining, more power to it.


5 thoughts on “Prenup, Shmenup

  1. The weltanshauung of Rabbi Sternbuch is shared by some in the Chassidic Charedi world in Jerusalem and elsewhere.
    The statement that children of a union born from a marriage of a woman who the first time around utilized the PNA being a mamzer is not accepted by most Poskim even those who do not support the Pre-Nuptual Agreement.
    As with every Halachic development this will take time to be accepted ,some have already, some will in the future and some will never accept it.
    This mirrors many issues in the Halachic process.

  2. After a healthy bunch of expletives, I see two possibilities.

    1) The wife leaves Orthodoxy and gets a civil marriage, and continues to live a normal healthy life, minus the chumrot and shaming by the community to which she no longer belongs.

    2) This encompasses 1) above, but also includes her decision not to have additional children. Hope the talibanim don’t make this retroactive to children born during a kosher marriage.

    I am continuously amazed at stories told to me by frum friends, of women who remain 38 years as agunot. Mendel E. was a mixed bag, the method
    being unfortunately illegal.

    I just had this fantasy of hordes of women in burkhas, with the husbands not being able to identify their own. and not caring. Somewhere here there is a great satire waiting to be written by someone other than I.

    • The movie Gett was intriguing but very skewered.
      It depicted a traditional but not observantly orthodox French immigrant Sefardic couple who were appearing in front of a Sefardic Beth Din.
      It was predictably stereotypical of that culture as it plays out in working class Israel.
      The issue of Gett manipulation by both men and women is much more textured and the film took a myopic view on many levels.
      rated 6/10

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