We were dismayed by the widely disseminated reports that forty-four Israeli rabbis have signed a document purportedly invalidating versions of prenuptial agreements designed to address the problem of parties to a failed Jewish marriage failing to either give or receive a get.
Ostensibly triggered by a controversial version proposed by the Israeli rabbinical organization Tzohar, the document also names the familiar and widely used agreement introduced by the Beth Din of America, an affiliate of the Rabbinical Council of America. Although the signatories do not represent a broad and definitive halachic consensus and only a few are well known, their document has caused much concern since it militates against the universal recognition of a divorce.
Jewish law stipulates that a Jewish divorce can only be initiated by the husband in an exercise of his free will. To be sure, a bet din can order that coercion be employed but the factual predicates for such a ruling are extremely rare. And, generally, a woman cannot be forced to accept a get, although in certain limited circumstances an alternative to her formal acquiescence is halachically available.
With respect to Jewish divorces, the prenuptial concept is meant to be a means of getting the parties to commit at the outset of their marriage, on pain of financial penalty, to cooperate in the giving/accepting of a get should the marriage break down – while avoiding any compromising of the free will requirement.
A Tzohar spokesman explains that his organization’s proposal works this way:
When one spouse announces his/her desire to break up the marriage, this initiates a period of 6-9 months of attempting to restore the marriage with the help of a professional. At the end of that period, should the attempts at restoration fail, the spouse who decides to delay the divorce will be charged a monthly payment to the other party of about $1,680 or half of his/her monthly salary, whichever is higher [until the divorce is finalized]…. Both spouses are obligated to make the aforementioned monthly payment from the moment of their marriage, but each party pardons the other of the obligation to pay as long as they have not reached a state of separation.
But the thrust of the proposal, and arguably its most controversial element, is that, as Tzohar’s vice president said, “The purpose of this agreement is to allow couples to decide how things will proceed rather than the [religious] courts, in the event that the marriage breaks up.”
Since in Israel Jews can only be divorced in the rabbinical courts, the Tzohar approach would seem to be designed to divest the religious courts’ halachically prescribed jurisdiction over divorce.
On the other hand, in direct contradistinction to the Tzohar prenuptial, while the RCA/Beth Din of America prenuptial also provides for financial consequences for the recalcitrant spouse, those consequences revolve around his/her refusal to honor an agreement to go to a religious court to decide the issue of the Jewish divorce.
Some 4,500 couples marry through Tzohar’s services every year so the danger of unrecognized divorces in Israel is manifest and we hope the Israeli religious authorities will clear matters up there. And of course it is to be hoped the controversy will not spill over into the American Jewish community.