Halakhic Pre-Nup Redux
I’m going to be performing a wedding in the US later this year. Something that naturally came up in my mind is whether or not to ask them(or possibly even require them) to get a halakhic pre-nup. It is not a light decision. Every Rav I talk to, which at this point includes Rav Amar and Rav Ovadia, says that there are halakhic problems with every halakhic prenup that could, under the proper conditions, result in a Get HeMeusah.
However on the flip side of the argument is the on going Agunah “crisis” in which more and more corrupt Batei Din are popping up allowing the most horrid forms of Get extortion. I know of one case in which a husband is in fact withholding a Get until he gets full custody of the children and alimony on top of that. Can I simply leave that possibility(no matter how remote) hanging over their future? These corrupt Batei Din run to give a man a heter meah Rabbanim, thus allowing him to remarry without granting a divorce, and leave the hapless woman as a perpetual Aguna until such time as she concedes to the husbands exorbitant demands.
In truth it seems that there is no easy answer. No matter how many times I turn this over in my head and look at it from different sides I still can’t find a side without a difficulty. So maybe I’m going to take the cowards way out, but ultimately I am not going to decide. Instead I have decided to explain the issues to the couple and then strongly recommend that they make a halakhic prenup. Strongly recommend but not require. I will still do the wedding either way, but my hope is that they will decide that they will get one.
What would you have done?
The discussion you have could make or break the decision. If the hatan feels threatened, it could have an opposite effect. IMHO, I think discussing it with both of them present is required. If it’s presented in a way that shows that the hatan is providing for his kalla, you can take advantage of the utopian pre-wedding mindset they both have at the moment.
I was thinking something like:
“You have a responsibility to protect and honor your wife, and one of the best ways to do that is to provide her a future if the worst-case scenario ever happens. As a Jew and as a human being, you should have a prenup. It is one of the most dignified things you can and should give her.”
Something like that, where there’s an emphasis on his giving as a form of love and also underscoring the gravity of the situation. Just a thought.
That was more or less the plan. I was going to discuss the entire matter with the couple together, give them the pros and cons of both sides and then make my recommendation.
I would recommend speaking to rabbanim in America, particularly students of Rav Ovadia. They are most familiar with the american scene and have actually read and investigated the RCA prenup.
I spoke with Rav Ovadia, he said the RCA prenup, at least in it’s Hebrew formulation is by far the least problematic. As I get closer to the even I will double check things with Rav Katzin, I have a kesher with him.
I think it’s a good idea. Mostly because the romantic in me can actually appreciate that this is the actual intention of the ketuba. Maybe I’m wrong but I thought that was the original purpose. The Torah itself was at the time of Sinai revolutionary in its approach to protecting women orphans and slaves(debtors). If they are as “conservative” as I think they will appreciate your advice and wisdom.
I highly recommend it if it’s על פי הלכה. My daughter went thru a divorce where we were scared he wouldn’t give a get. In short, the boy had a medical condition we could not know about which prevented him being a proper husband. Add in a very controlling person, it simply wasn’t possible to live with him. To get a get I had to promise large sums of money and for a while he refused to give a get. Finally his Rav told him you will remarry and go on with life, take the money and give the get. Now get this, his Rov never heard why she left and his medical problem, and is recommending him for other girls. Just a small sample of who he is, he threatened to kill his Rosh yeshiva , so you can imagine what she went thru.
So yes, looks are deceiving, do what you can do.
You mean Harav Sam Kassin Shelit”A of Midrash Sefaradi?
No I meant Rav Shaul Katzin. He and Rabbi Ben Haim, both have a deep kesher with various Kabbalistic Yeshivot here in E”Y.
Rabbi Eliyahu Ben Haim of Yeshiva University or one of the Ben Haims of the Syrian Community?
The Ben Haim of the Syrian community who is a musmakh of Rav Ovaddia.
In my humble opinion I think that recommending the couple to have a halachic pre-nup is the right thing to do.
I think a general suggestion to look into the options should suffice. I don’t think its a big deal if they don’t want to do it though. The short of it is that for the better part of the past 2 thousand years it hasn’t been done. The aguna problem isn’t a new one at all. As such, it wouid be recommended but if they don’t want you should definitely still be mesader and not feel guilty.
What’s wrong with Tosefet Mezonot? A man already has a chiyuv to give his wife mezonot, formalizing it and holding him to that obligation wouldn’t seem to pose a problem.
Look at the RCA website of the prenup:
http://theprenup.org/
The most current forms offered and/or approved appear to be only in English, for America.
Since I know that you read Hebrew start here. Yaskil Avdei 2:8:2 Din of a Moredet.
http://www.hebrewbooks.org/pdfpager.aspx?req=960&st=&pgnum=128
That was written when he was just the Rosh Yeshiva of Beit El and the Av Beit Din of Jerusalem. After that read this one:
http://www.hebrewbooks.org/pdfpager.aspx?req=964&pgnum=115
Which was written when he was the Nasi of the Beit Din Hagadol of the Rabbinut.
Are you certain that Ot Bet of Siman 24 in Helek 6 of Yaskil Avdei supports your thesis more than mine?
I believe he says that the woman has a good argument, as mezonot supposed to improve the general condition of the Women of Israel, and not enforcing it can have tragic consequences, and that enforcing it is within the jurisdiction of the Bet Din to do justice, and furthermore it is for the man’s benefit as well, because if he does not divorce his wife, he will not be able to remarry, and will not be saved from many sins.
He then explains why the Bet Din did not decide in her favor:
לעצם ההוכחות, שלא הוכח כדברי האשה על
הנהגת הבעל כלפיה, הנה בכל כיוצא בזה,
שהס דברים שבסתר
and
כבר אמרו
ז״ל אין לדיין אנא מה שעיניו רואות
But if both parties sign beforehand a document, with full knowledge and agreement, obligating the husband to in all situations give his wife Tosefet Mezonot at all times the Bet Din may deem neccessary, for all the time that she is his wife according to the Law of Moshe and Israel, then surely this would not be a thing kept secret in darkness, within walls, far from the eyes of the Dayan. And I would suggest that the Yaskil Avdei, given the direction his teshuva leans, in such a situation, would agree with me.
That is my first argument.
In none of the cases cited was there an agreement signed between the two parties of Tosefet Mezonot.
Tosefet Mezonot is not Mezonot, it is an exceptional and independent contract between two parties.
It is not at all clear that a Moredet would not be able to collect Tosefet Mezonot should such an agreement be signed. The agreement specifies that such an obligation should exist between the two parties until the termination of their marriage, should the Bet Din see fit. Much like a Ketuba can be lost if the wife is found to have committed certain indiscretions, but not the Tosefet Ketuba.
That is my second argument.
And what is more, if a woman came to Bet Din requesting a Divorce on such-and-such grounds, she would not be a Moredet unless ordered by the Bet Din to return to her husband, and she refused. Not everyone who comes to Bet Din with a complaint falls under the Din of Moredet.
That is my third argument.