Another Reason for More Widespread Use of Halakhic Prenups

EnglishOLYMPUS DIGITAL CAMERASo lots of people have read and are commenting on a sad New York Post article about Gital Dodelson’s struggle over the last three years to obtain a get (Jewish religious divorce). That story shows that in our Western societies, where the power of beis din is limited to mediation and arbitration, it is a mightily good idea to further the use of halakhic prenups that aim to prevent many such cases of igun (“chaining” a woman, by her husband who refuses to grant her a get even though their relationship is essentially over). Evidently, all Orthodox rabbis would do well to promote the use of such prenups, be they from the Modern Orthodox or from the Ultra Orthodox communities.

I should point out that I am not involved in the case and every litigation is enormously complex, so I am not really allowed to take sides, but let’s just say that this is a very, very tragic situation and there should be no need for a woman to wait for three years after her civil divorce to obtain a get. Men, by the way, should not be chained by wives who refuse to take a get, either, though they also frequently are.  We should be for equal opportunity civility. However, when one of the divorcing spouses lacks that civility, a little help from a duly drafted, halakhically valid prenup that are binding according to secular civil law, too, can go a long way.

The issue of halakhic prenups is a complex one, and not every prenup is considered to be halakhically valid according to enough mainstream poskim (halakhic decisors), as divorces ought to be executed a voluntary acts between two freewilled people, mirrorring their earlier marriage, which was also a freely willed agreement between those two people. Prenups should thus be ingeniously crafted to effectively compel without being considered legally coercing. This requirement that divorces be executed as free willed acts reveals a major distinction between marriage and divorce law in Judaism, where marriage and divorce are predominantly seen as private matters, and in Western secular law, where those are considered matters of state.

Anyway, given the circumstances, I am enormously proud to have been part of the planning committee that decided on the topics of this year’s Conference of European Rabbis, a three day affair starting next Sunday in Berlin, where halakhic prenups in Western jurisdictions will be one of the topics of discussion.

The most remarkable halakhic prenup I have read is the Marital Agreement to Mediate, by Rabbi David Mescheloff. It is less confrontational than the others, yet often more effective at shepherding divorcing spouses through a humane and mutally respectful process, and is in certain ways halakhically better than some other agreements.

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