Is The New Prenuptial Agreement The Solution We’ve Been Waiting For?
Why Has It Not Caught On In Some Circles?
Rabbi Moshe Taub
Winter, 2015
“The truth is obtained from within, in accord with the methodology given to Moses and passed down from generation to generation. The truth can be discovered only through joining the ranks of the chachmei hamesorah. It’s ridiculous to say “I have discovered something of which the Rashba didn’t know, the Ketzos didn’t know, the Vilna Gaon had no knowledge; I’ve discovered an approach to the interpretation of Torah which is completely new.” It’s ridiculous! One has to join the ranks of the chachmei mesorah, Chazal, rishonim, gedolei acharonim, and must not try to rationalize from without the chukei haTorah, and judge. We must not judge chukim umishpatim in terms of a secular system of values.”
Rav Yosheh Ber Soloveitchik (in response to an unrelated, and radical, ‘innovation’)
We open with this quote not chalila to compare the brilliant pre-nuptial agreement of HaGaon Harav Willig and other tzadikim and chachamaim to the innovation toward which the above points were composed. Rather, we open with this quote simply to demonstrate the general pause some innovations may induce.
Indeed, sometimes, this fear leads to what can be percieved to as an ‘overcorrection’, such as the initial and harsh chassideshe response to machine matzos.
I. [I]nnovation vs [i]nnovation
Innovation and originality in halacha pesuka can be broken into two distinct categories:
- Application
- Discovery
The former happens all the time and is part of the general halachic process. Cars, planes, Keurig machines and millions of other items and cases that did not heretofore exist, or were not overtly discussed, in the days of chazal, yet for which we must seek out from the Torah’s wellspring of wisdom to discover how halacha seeks we deal with them.
This is, primarily, the focus of sifrei shaalos u’teshuvos.
These may be classified as ‘lower innovation’.
A simple and recent example of ‘lower innovation’ is the new category of ‘cholev stam’. Chiefly defended by Rav Moshe Feinstein, it was based, in part (aside for the source of e.g. the Pri Chodosh), on the idea that if the Chasam Sofer -who took the stricter understanding of this injunction– would be alive to see certain changes in the monitoring of our milk production he too may/would concur.
Meaning -the reality changed and a new approach thereby was suggested (cf. Pri Chadash). No one denies the obligation of abstaining from choluv akum [1], rather many take the position that modern dairies in many Western countries would avoid that monicker by default. The term cholov stam is a legal fiction created soley so as not to cause the detractors of Rav Moshe’s view to accidentally consume it.
In contrast, the more precarious type of innovation – ‘higher innovation’ – while at times valid and even needed, is riddled with concern and, sometimes, suspicion.
What is ‘higher innovation’?
This is when seemingly nothing has changed, the halachic reality on the ground is the same as it was in the days of Ramban, Rashba, and Rambam and yet a new approach is offered.
Even should this new approach seem logical and valid, one can’t help but be stuck with the following concern: ‘Why didn’t the Ramban think of this? Did he, and reject it?'[2]
It was to this type of innovation that our opening quote concerns.
‘Mimetic‘ halacha –the idea that we follow a mesorah– is part of our backbone, our survival. “This is how my mother/father/rav did it” is never something to capriciously dismiss. At the very least, a moment is always taken to try to decode why those before us did not come up with whatever tactic we are inventing.
It is no surprise then that the relatively modern prenuptial agreement, composed in order to prevent the painful problem of agunas that has sadly always existed, has not spread as fast as some may have hoped. This although some great poskim have supported it.
Over the past several weeks of this writing, various blogs and postings have asserted that further consensus on this matter has arrived. Quoting numerous charedi rabbanim, the claim is now that the prenup has grown in popularity; has finally arrived.
The purpose of this short monograph is to discuss, primarily, the rabbinic support for such agreements; a history of psak.
II. Prenup
The idea of a prenup may not be as new as one might think, as its basic concept, in some form, is found in early writings.
In the 1600’s the rav of Bamburg published his seminal Nachalas Shiva which includes many types of halachic contracts, forms and kesubos. In #9 he brings a form that may date all the way back to the end of the 12th century and the takanas sh’um, decrees from the rabbanim (some of whom were baalei Tosphos, or students thereof) of Speyer, Worms and Mainz. This form is in some ways similar to the modern prenup under discussion.
Even Rav Moshe Feinstein (evh’e 4:107) supported certain types of similar agreements.
However, both the former and the latter were in support of agreements that forced the husband and wife to either go to a beis din for any divorce proceeding or to follow said beis din’s rulings.
While not a document that is pleasing to sign on one’s wedding day, there are no halachic concerns involved.
Nevertheless, none of these would solve the agunah concern. Even the Nachalas Shiva’s form, which includes fines on the husband so long as he does not appear in beis din, never mentions his obligation in giving a get. So long as he shows up the debt is erased.
Throughout the centuries other ideas have been introduced to solve various agunah concerns, such as Rav Singer of Galicia’s method for soldiers pre-World War 1. Although this method found prominent support, it offers no advantage in a modern setting for reasons too broad to go into here (see Rav Singer’s great nephew’s Grey Matter [Rav Jachter] for further discussion of this method. See also Igros Moshe ibid. 111).
Other methods have been proposed by such luminaires as Rav Henkin zt’l, but were unfeasible, often dubious and were ultimately retracted (see also Rav Ahron Kotler, Mishnas Rav Ahron 60).
In the 1920’s a sefer was composed titled ‘Ein Tnai B’kidushin’ which came to oppose directly the many innovative ideas that were being introduced at the time. This sefer comes with a haskama and a halachic history lesson by Rav Chaim Ozer zt’l.
These names and histories are important because the relatively modern prenuptial agreement comes to assuage many of the known prior concerns.
The chief novelty of the modern prenup is simple (what follows is not meant as an exhaustive review):
To take advantage of the husband’s halachic obligation to support his wife.
The idea is simple and brilliant: Why not put that in writing, either before (prenup) or after (postnup) marriage stating that, should it, chalila, come to such a point, they will settle their divorce through the arbitration of a reputable beis din? But more: The chosson would further agree that should the marriage dissolve to the point that his wife lives away from him –or he from her- then he should pay her $X per day (about $150 changing for inflation and customary needs) in living expenses [an anyway existing obligation of mezonos or extra mezanos] until such time that a get is delivered.
This would greatly dissuade a husband from withholding or preventing a get, and should secular courts honor such agreements (and it seems as if they would) this would leave him few places to hide.
The geonim, such as Rav Willig,who helped compose this prenup reached out to prominent poskim in Eretz Yisroel, such as Rav Ovodia Yoseph and Rav Asher Zelig Weiss, who either verbally or in writing supported this new idea.
While we will name below the many geonim who outright support this prenup, it is important to point out that some supporters’ positions on this matter is not as black and white as it may first seem.
Rav Asher Zelig Weiss, for instance, certainly does not agree with the composers shlita on every point. Most extraordinary is his point of departure on the knas/fine itself. He points out in his public letter of support that the wife will not in reality have an automatic claim on this money (due to homotzi meichaveiro aluv haraya – as the husband could say ‘kim li’ [a halachic tool beyond the scope of this short monograph])! While he agrees that there is no halachic concern with the prenup, he raises this (and other) weaknesses in the power this arrangement will serve, as well as challenging its historical precedent, most critically that contra Rav Willig, the Nachalas Shiva’s form can not serve as precedent to the modern prenup.
Rav Zalman Nechemia Goldberg is also quoted as supporting this prenup, and is listed as such on the RCA’s prenup website.
However, some have pointed out (see ‘Communications’, Tradition 44:1) that he may have retracted or clarified his position. The idea that the husband obligates himself to waive certain rights and to also finically support his wife daily may only be done, he says, if there is no other ulterior motive involved; it must be done simply so as to attend to his wife’s needs (for reasons made clear below).
In addition, some of the rabbanim who have been quoted in certain non-rabbinic venues and blogs as newly or for the first time publicly supporting the prenup have a far more nuanced position than as described. Some are listed as supporters simply based on the fact that they are known to support people or organizations that themselves support this new prenup. While these poskim may perhaps also support this modern prenup, such chad gadya’s are not the way of discovery on the matter.
One prominent posek named in one such article as a supporter told me over the phone that he would not urge its use (for reasons beyond the scope of this article) and he only said that such a prenup does not invalidate the get.[3]
This is an important leniency in and of itself.
III. A ‘Forced’ Get
A common misconception among the laity is that we may force a husband to write a get.
Not only is this false, worse, a get meusah/a forced get is invalid in most instances. Indeed, before a husband gives a get, the mesader get will ask him if there is anything obligating him to give it!
The Rashba writes in a teshuvah that should a husband even except upon himself a knas (fine) should he not give a get (e.g. “If I don’t give a get in 10 days then I will give $100,000 to Ploni”) such a get would be deemed a get meusa (a forced get) and be pasul. The Rama (siman 134) paskens that we should be machmir like the Rashba.
Some, then, may argue that the modern prenuptial agreement – where the husband sets a fine for each day that he does not give a get – would be precisely what the Rashba ruled is forbidden!
Nevertheless, one could easily retort (as does Rav Asher Zelig Weiss, and this other prominent posek with whom I spoke [3]) that this prenuptial agreement does not tie the husband’s obligational payment to giving-or-not-giving the get. Rather, and only that, the giving of a get would stop a already current payment; a payment which regarding which his kesubah already obligates him.
While there are certainly prominent poskim who support this prenup, such as Rav Ovadia Yosef (although some contest the strength of this endorsement– see R. Shalom C. Spira, 5th edition, A:26) Rav Chaim Zimbalist, Rav Reiss, Rav Shachter, Rav Willig, and many others – there are many who are parve or opposed to it.
Rav Aviner, one of the leading daati leumi poskim in Israel opposes the prenup and quotes Rav Shternbuch of the eidah hachareidis as saying that it could lead to what would be tantamount to a coerced get (based on the Rashba above).
Regarding Rav Elyashiv’s view, it gets a little interesting. One of the central debates surrounding the prenup is the issue of asmachta –a commitment that is dependent on other factors and toward which the agree-er does not really expect to happen. A groom signing this document on his happiest day likely can’t truly and honestly imagine getting into a disagreement with his new bride let alone divorcing her! Therefore, perhaps, anything he agrees to in a prenup is voided!
While many debate this issue back-and-forth, Rav Willig proves from a teshuvah of Rav Elyahsiv (1:163) that this type of asmachta would be of no concern. However elsewhere, ironically, it is Rav Elyahsiv himself -in a latter teshuva in his next volume – who seems to disallow the entire enterprise of such prenups to begin with!
IV. Lakewood & Beyond?
Most in Lakewood do not sign these agreements. Some roshei yeshiva tell their students to go out of their way to avoid them. ON matters of such import, they feel, change must come from an overriding consensus of gedolei hador.
However, all agree that on this matter of prenups, boruch Hashem, all parties involved are talmidei chachamim par excellence and lshem shomayim.
Consensus, should it come at all, will take time.
In the meantime, each of us should simply follow our own rebbeim on the matter.
The goal of this monograph was simply so each talmud can understand the views of their friends who happen to have other rebbeim. So as to avoid machlokos.
Regrettably, I have heard comments surrounding this topic akin to ‘I guess Lakewood doesn’t take the cause of agunos seriously’, or, ‘The Modern-Orthodox are once-again seeking to “fix” halacha‘. Such statements are not only ugly caricatures, but a perversion of the holy reality, and, it may be a violation of chazal who warned of using Torah/halacha as a dagger or spade (avos 4:5; nedarim 62a)[4].
Let us hope that our respect for the halachik process will be a zechus toward the agunos of today and help prevent any agunah of tomorrow.
NOTES:
1 – A few years ago, someone showed me a package with a hechsher from a rabbanut in a small town in Israel, wishing to know its reliability. I gave a quick ‘No’. “How can you know so fast? Do you know their policies?” he gently challenged. I explained, “Listen, it may be fine. Indeed, some rabbanuts and their products I allow myself. However, in this case, I saw a clue that speaks to some concerns. On this package {of dairy Cheetos} they write, ‘Under the hashgacha of the rabbanut of x…this product is cholov akum…’! Cholov akum?! Gevalt! While perhaps an error on the part of the printer, it is highly suspect of kashrus ignorance”.
2-The famous story of Rav Gifter, the late Rish Yeshiva of Telshe, Cleveland, comes to mind. This event greatly effected the many students who had witnessed it. Rav Gifter was once giving his shiur and focusing on a complicated question Rav Akiva Eiger asked on the gemara at hand. Like many Chiddushai Rav Akiva Eiger, this question was left unanswered. In the midst of explaining Rav Eiger’s strong question, Rav Gifter suddenly shut his gemara and left the room. He went directly into his office, locked the door, and did not leave for several hours. The next day by shiur, he opened by explaining his actions from the day before. “While I was repeating Rav Eiger’s brilliant question, I suddenly thought of a perfect solution; a way to avoid all of his difficulties while keeping the gemara perfectly intact. But then I thought to myself, ‘My answer seems so clear, so correct, how could it be that Rav Eiger himself would have missed it?! So, I went to my office to see where I had gone wrong, and did not leave until I was satisfied that I was indeed wrong”! Rav Gifter then preceded to repeat Rav Eiger’s question, explain his own answer, and then explain, brilliantly, why it was wrong. Of course, this is an extreme example, but it serves to make the greater point.
3 -I can now reveal this to be Rav Nota Greenblatt tz”l. He also shared that he can’t imagine this wuld ever have its desired effect in reality or secular court. I have since heard that indeed it has been tried in court and was in fact held up.
4- My wife once was sent a podcast or video of some type where a woman was making just such a claim. My wife was aghast as her ‘Lakewood-musmuch‘ husband was, at that moment, driving around with Rav Nota and knocking on doors seeking to find a recalcitrant husband. Indeed, Rav Nota alone liekley saved 20,000 agunos!
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