Author’s note –
Please see Part 1 of this post HERE.
I don’t hide that,
personally, I am not a proponent of Halachic prenuptial agreements. To date, I
have dedicated no less than ten posts to the goal of explaining the Halachic
and Hashkafic reasons for this. But I can’t deny that there is an active market
for them. So much so that, to date, I have come across not less than eleven
possible contenders. I listed them at the beginning of my previous post.
As I discussed in my
previous posts, creating a valid and effective Halachic prenup is a daunting
task. The general rule is the more valid the less effective, and vice versa.
This paradox behooves us to find a winning formula. This is why we have such a
wide selection to choose from. Many creative Halachic minds have weighed into
the contest. Some have fallen by the wayside and others seem to be making
progress. As I look them over for my “Consumer’s Report”, I sometimes marvel at
their creativity as well as their futility.
I began my Consumer’s
Report in the previous post. I covered two additional prenups after the BDA
prenup which launched this series – Rav Moshe Feinstein, ZT”L and Dr. Rachel
Levmore. In this post we pick up where we left off. I first want to briefly cover
some of the older, lesser-known candidates and get them out of the way and then
get to the more recent innovations.
The lesser known
prenups are those that are analyzed in Dr. Susan Metzger Weiss’s undated essay
that looks to have been released about the year 2000. Yep, that’s twenty years
ago. In case you don’t know who Dr. Susan Weiss is, you can check out my September 2018 blog where I analyzed a blog she wrote in Times of Israel a month earlier.
In that post I copied the biographical blurb which said:
Dr. Susan Weiss is the founder and director of the Center for Women's Justice (CWJ), an NGO leading the battle to advance the civil and religious liberties of Israeli women when compromised by state institutions.
Dr. Weiss titles her
essay Sign at Your Own Risk. Hm-m-m-m. What does this say to you? You can see
the essay HERE.
Dr. Weiss critiques the prenups that were available in those days – including an earlier RCA version – and basically complains that none of them are one-sided enough. She writes on page 9:
This Article does not analyze which of these contracts better conform to the requirements of Jewish law. This has been done by others. Rather, the Article attempts to analyze the following questions:
Does the prenuptial agreement acknowledge the inequities and abuses resulting from the imbalance of power inherent in the Rules of Law, which characterize Jewish divorce; and do it attempt to realign, correct or at least, address that imbalance? Does it merely corroborate the current status quo? Or worse, does it exacerbate that imbalance and place women at a greater disadvantage?
In short, Halachic
validity is not her priority. It looks like even effectiveness is not her
priority. Her priority is leveling the playing field between husband and wife
for better or for worse. HKBH does not think it’s a good idea for the playing
field to be level but Dr. Weiss does. G-d proposes and she disposes.
Truthfully, her
analysis does not interest me. Mine does. I am not interested in what the
various prenups have in common but rather in what way are they different.
The sample prenups in
her essay are printed in the appendix. Evidently, none of these ever earned
widespread recognition but some of them were put into operation by the Rabbis
who authored them (Rabbis Lookstein, Cohen, Dick, Bleich, etc.). Either the
authors never tried to proliferate their versions, they did not have the means
to do it themselves, or they weren’t effective enough (or valid enough) to
become widespread. They certainly did not have the clout of the BDA (except the
RCA version).
So let’s discuss
them. As I said, I want to do the shorter ones first. Here we go:
RCA Liquidation
Prenup (Appendix 6 – page 33)
This one seems to be
a predecessor of the current BDA prenup. It works on the same principle of
obligating the recalcitrant husband to pay a hefty daily payment to his wife
for not delivering a get. The proposed amount is $250 per day with is even 40% more
than the current amount 35 years later!
The catch is that
instead of calling the money a support payment (mezonos) it is referred to as
“liquidated damages”. This is meant to imply that it is very “damaging” for a
person to be chained into a dead marriage and unable to move on and so, if one
spouse is holding back the other, he or she is inflicting damage. The payments
are merely damage payments – supposedly not a knas.
On the plus side, this
would actually dispense with the waiver problem and the problems of the wife
not being entitled to mezonos since the payment is not earmarked as mezonos. If
it is truly a payment for damage, there is no problem of asmachta, either. But
the problem is that, in Halacha, a damage is defined as a measurable amount of
tangible monetary loss. In cases of personal injury, Chazal allowed for two
types of intangible damages – pain and embarrassment – and in each case, they
presented a formula on how to assess the monetary value. But for all other
types of intangible “losses” such as frustration, ogmas nefesh, vicarious
damage (grama) and loss of time or loss of potential revenue (bitul kis), there
is no mandatory compensation. Any such compensation, even if ordered by a Beis Din,
would be considered a knas. Incidentally, this explains why it is all but
impossible for somebody to sue in a Beis Din today for any of these intangible
losses. A Beit Din today cannot order knassot.
Back to this initial
RCA prenup, clearly they were serving up a knas in disguise which did not have
the support of the Toras Gittin and certainly not the Chazon Ish who says that
any mandatory payments designed to pressure a husband to give a get is pure
knas even if it’s called mezonos.
Understandably, this
did not draw the backing of any prominent gedolim. Most likely, even Rabbi Willig
wasn’t happy with it, so he needed to redesign it.
Rabbi Haskel
Lookstein (Appendix 7 – page 35)
This one may be the
most Halachically sound because it is so short and sweet and toothless.
All it says is that
in case the marriage goes south, and the spouses undergo a civil divorce, each
side agrees to cooperate to carry out a Halachic divorce as well. The “penalty”
for not doing so – recalcitrance – is to be liable for all the damages and
expenses that the other side needs to get the job done. Though it may be
implying some intangible damages, it does not set a predetermined price.
I wrote that this may
be Halachically sound because if the damages are actual, we can say it is not a
knas and nobody is really forcing the husband to give a get. However, I don’t
think this agreement would accomplish much in a Beis Din and it seems to be
addressing a spouse who anyway isn’t showing up in Beis Din. This brings us to
the severe problem of a civil court enforcing this without the blessing of a
Beis Din. Aside from the standard prohibition of litigating a case of damages
in civil court, if the damages are not authentic, this is indeed a recipe for a
get meuseh.
Rabbi Shear Yashuv
Cohen (Appendix 5 – page 32)
Rabbi Shear Yashuv
Cohen, ZL, was the Chief Rabbi and Av Beis Din in Haifa for many years until he
passed away in 2016. He was an early Mercaz Harav talmid and a renowned Talmid
Chacham. We can view him as a nationalistic Chareidi.
The text that she
printed, which is her translation from the Hebrew, a relatively simple
agreement with no binding arbitration agreement. There is also no fixed “daily
payment” – not “mezonos” and not “damages” – so there is no knas in disguise. There
is, however, an unspecified obligation for mezonos.
There are two parts
to this agreement. The first part is an immediate and unconditional waiver of
rights to the wife’s property which does not seem to relate to whether the
marriage is going north or south. Also, it does not relate to the wife’s work
income at all. As such, it does nothing to motivate the husband to give a get.
I cannot see any purpose in it unless this agreement is designed primarily for
a second marriage where these types of agreements are standard.
The second part is
the relevant part. It says that the husband agrees to give a get to his wife
within 30 days of when she requests it from him in writing. The “penalty” for
not doing so is that he must pay her the ketubah immediately in full including
all additions. In addition, he agrees to pay her mezonos as if she is a woman
who is prevented from marrying (no fixed daily amount).
It looks like it is
emulating the Toras Gittin approach except there is no waiver for the wife’s
work income - only for her property revenues and this is forfeited from day
one! One positive thing is that it does not inflate the value of mezonos and
this is more in line with Toras Gittin.
The striking thing is
that it makes absolutely no reference to Beis Din whatsoever. This agreement to
divorce within 30 days or pay the ketubah and mezonos only makes sense if this demand
comes after a Beis Din rules in favor of a get. It can’t work if they haven’t
come before a Beis Din.
A woman cannot decide
on her own that she is entitled to a get no matter how miserable she is. If she
unilaterally leaves her husband, she is a moredes and is not entitled to a
ketubah or mezonos! He can nobly state that he is still willing to pay the ketubah and mezonos but if he doesn’t really have to pay it and is accepting to pay it
anyway he is accepting to pay an obligation which he does not have.
In other words, he is
giving himself a knas.
Also, if it is not
truly obligatory, his agreement to pay it anyway is an asmachta. And this
document is so brief, it doesn’t begin to neutralize the asmachta issue.
If the couple were
already at Beis Din and BD decreed a get without faulting the woman, then Beis
Din is perfectly authorized to order payment of the ketubah and mezonos without
any prenuptial agreement allowing them to.
All told, I see
absolutely no value to this prenup.
It may be a poor
translation from the original. But, if not, it is very hard for me to believe
that a person as distinguished as Rav Shear Yashuv Cohen, ZL, can author and
promote such a prenup.
Ariel Rosen-Zvi
(Appendix 3 – page 27)
I never heard of
Ariel Rosen-Zvi until I saw Mrs. Weiss’s essay. Apparently, he is a law
professor at Tel Aviv University.
His prenup is almost
identical to the BDA prenup. The only major difference is that it does not
include any type of arbitration-in-BD agreement. We can say that since this was
written and promoted in Eretz Yisrael where all divorce cases go to BD, the
arbitration agreement is superfluous.
After that, it is
almost word for word like the BDA. It calls for a more modest fixed amount for
mezonos and it does not kick in until after the couple is separated for at
least 12 months. Even though it states that the payments are made “without the need
to take into consideration the extent of the wife’s income from wages,
earnings, properties or any other source”, there is no official declaration of
waiver from the husband. With or without a declaration, all of the issues that
I previously mentioned apply.
The other issues
about not being eligible for mezonos and all of the other issues that were
raised in the previous post are all just as applicable with this prenup.
Rabbi Judah Dick
(Appendix 4 – page 29)
Rabbi Judah Dick, ZL,
was a lawyer and Torah scholar and a ranking member of Agudath Israel of
America until his passing in 2005.
Most of the prenups I
covered until now are full or miniature imitations of the BDA prenup where the
husband is obligating himself to some form of expanded maintenance from the
time the marriage goes sour. As noted, they generally share the same package of
Halachic issues. I assume that Rabbi Dick was aware of all these problems and
wanted to try something a little more original. So, here’s where things start
getting creative.
In this prenup there
is no obligation for support nor any penalty for not giving a get. What there
is, is an immediate obligation to the other spouse for the amount of $100,000
(this was drafted in the mid 1980s) in the form of a promissory note. In
Halachic terms it is called a hitchayvut or a spontaneous obligation. This
obligation takes effect immediately at the time of the marriage but is offset
by a signed agreement of the other spouse not to demand the debt unless the
marriage goes sour and there is a civil divorce or a decree from Beis Din for a
Halachic divorce or a ruling from Beis Din that the marriage cannot be
salvaged.
Similar to the
Levmore prenup, this one circumvents many of the halachic issues listed in the
previous post. It uses the old Chachmei Sefard trick of making an immediate
unconditional obligation which is offset by a counter agreement through which to
eliminate the problem of asmachta. Also, the payment is not being labeled
mezonos so it is not contingent on the wife’s eligibility for mezonos. Lastly,
since this only takes effect when the marriage is deemed to be hopeless, it is
not so much a catalyst for divorce.
From the perspective
of Halacha, this may actually be the best player in the game. But, as we have
noted, what it gains in Halachic integrity it loses in practicality.
Not only are there
four signatures by each spouse but the draft indicates that it is meant to be
certified in a Beis Din. This is not something that is going to be done in some
Rabbi’s office or at the chosson tish. It’s a very formal process and doesn’t
really work into the hullabaloo of making a wedding.
For this reason and
because such an obligation is a heavy load for a chosson to take upon himself
at the outset of his marriage, regardless if the wife is held back from
claiming the bonus for the time being, it is a very hard sell. Also, even
though it may not be itself a catalyst for divorce, it is certainly a sword of
Damocles that hangs over the marriage and casts a pallor from day one. Though
it may be Halachically sound, it is not a recipe for a healthy marriage.
Rabbi J. Dovid Bleich Tenayim Prenup (Appendix 2 – page 25)
Rabbi J. Dovid
Bleich, Shlita is (or was) a senior Ra”M at RIETS. Apparently, his approach, at
least initially, was to incorporate the terms of a prenup as part of the text
of the customary Tenayim document. Like the BDA prenup, it relies on the
financial pressure of a daily supra-mezonos to facilitate a divorce as of the
time that the wife is not taking board from her husband – i.e., separation –
for any reason. It continues until the time that the woman can Halachically
remarry, which is a euphemism for obtaining a get.
Interestingly, this
prenup makes no mention of a waiver of the wife’s income. Conversely, the
amount of daily “support” that was mentioned in the version printed by Mrs.
Weiss was a whopping $200 per day - $6000/ month!
Mrs. Weiss actually
praises this approach for two areas where it goes beyond the original RCA (now
BDA) prenup: (A) This “mezonos” obligation is not based on the wife’s
eligibility for mezonos and, therefore, there is no indication of fault of the
wife and (B) Whereas the RCA prenup allows payments until the couple shows up
at Beis Din, the Bleich Tenayim prenup allows it all the way up to the get. She
then criticizes that it does not go far enough to allow a woman to unilaterally
free herself from her husband.
In truth, the two
“improvements” that Mrs. Weiss praises actually are strong Halachic
liabilities. For Improvement A, if the wife is at fault and not entitled to
mezonos, we are back at a self-imposed knas. Rabbi Bleich seems to subscribe to
the faulty “Trei Gadya” concept that a person can obligate himself to any
amount in the ketubah and label it “mezonos”. I challenged this idea in a
previous post. He certainly cannot claim to have the blessing of the Toras
Gittin on this approach and, as such, what is he relying on?
For Improvement B, he
essentially shoots himself in the foot. The BDA prenup – and the patron Toras
Gittin – can allow for this payment to continue “for as long as they are
married” since it is based on the concept that the woman is eligible for
mezonos and is, consequently, a marital obligation. Rabbi Bleich dispenses with
eligibility for mezonos and can’t call it a marital obligation. Thus, he has no
choice but to link it to withholding the get. So, not only is he not covered by
the Toras Gittin, but he is in direct conflict with the Chazon Ish.
What is more
important is that these two “improvements” are benefits to the wife but, just
the same, create more risk for the groom. It allows for the wife to be a
full-fledged moredes and worse and demand an unconditional divorce plus a fine
for any kind of delay. Whatever time the husband spends fighting for Shalom
Bayis or his financial or parental rights or any other legitimate delay comes
out of his pocket. Likewise, there is no allowance for any incidental delays
such as if a get is agreed upon but Beis Din cannot arrange it for another two
months or is closed due to Covid restrictions or any other “act of G-d”. Even
if the wife decides not to show up that day and reschedules for a few weeks
later or the husband falls sick, according to the prenup, he still needs to pay
the fine.
Who in their right
mind would want to sign such an open-ended obligation and why should they?
So the core of this
prenup is just like the BDA prenup and, thus, has almost all of the detriments,
except one: there is no problem with the waiver of the wife’s income because
there is no waiver. The waiver per se may not be very significant since most
women are not such big earners, but it is the basis of the formula of the Toras
Gittin so, leaving it out looks like a deviation from the “source”. This also
does not mention an absurd “kim li” clause.
Furthermore, in terms of the non-Halachic issue #9 - that these prenups are a catalyst for divorce, this one is at the top of the pile (which may be why Mrs. Weiss is fond of it to some extent). As for issue #7 – coercing the chosson to sign it – since this is not a separate agreement but rather tucked into the text of the Tenayim, it is very likely that the chosson won’t really go over it and really understand what he is signing despite the declaration above his signature. It certainly does not contain a legalese disclaimer that the parties had the opportunity to seek the advice of a Rabbi and legal expert before signing it. Sof davar, I see this prenup as even worse than the BDA version.
This concludes the
critique of prenup variations that were discussed in Mrs. Weiss’s essay. But I
would like to discuss one more before I close this post.
Rabbi Shalom Chaim
Spira (Per Rabbi Bleich)
Rabbi Shalom Spira is
a pulpit Rabbi in Montreal and a research assistant at McGill University Jewish
General Hospital. He also prides himself as a loyal disciple of Rabbi J. David
Bleich, Shlita. He has a very formal and acute academic mind and writes
profusely on medical and Halachic topics. I greatly admire his yiras shamayim
and his scholarship.
In 2012 (5772) Rabbi
Spira wrote an essay on prenuptial agreements “Written under the general and
detailed guidance of Mori ve-Rabbi R. J. David Bleich”. This essay underwent
several revisions and the one I have on file is the eight edition from Av 5775
(2015). This edition of the essay is 109 pages long!
The essay is exceedingly
critical not only of the BDA prenup but also of the New York and Canada “Get
laws”. The New York and the Canada Get Law are secular legal instruments framed
and promoted by Jewish get advocates (“askanim”) to empower the secular courts
to indirectly pressure a husband to give his wife a get. The respective laws
basically say that if a couple is legally (i.e., civilly) divorced but one
souse is resorting to external means of preventing the other spouse from
remarrying, this can be “taken into account” when the court determines property
rights.
In other words, if
the couple underwent a civil divorce and the husband has not given a get to the
wife, the court can financially penalize the husband for this. The framers and
some Rabbanim who supported these laws saw this as Halachically sound since it
can be labeled as a penalty not for withholding a get but for not “removing the
barriers for remarriage”. Also, it is not a certain penalty but something left
to the discretion of the court (albeit not to Beis Din).
Back to Rabbi Spira’s
essay, his main concern about the BDA prenup was that the monetary obligation
should be invalidated as an asmachta which makes the payment an involuntary
knas and consequently brings us to the issue of get meuseh. As for the New York
and Canada Get Laws, he, and many others, maintain that it is out-and-out get
meuseh l’mehadrin. So much so that he and Rabbi Bleich and perhaps many others
maintain that any woman who initiated a divorce and obtained a get in New York
State or in Canada (at least in Ontario), has obtained an invalid get meuseh!
Note that even though
I did not see a mention of this in his essay, it must be that Rabbi Bleich
backtracked from his initial approach of a BDA-like amendment to the standard
Tenayim since the asmachta problem is just as relevant in that approach as
well.
Despite his
criticism, Rabbi Spira presents himself as an advocate for prenuptial
agreements and for eradicating the scourge of chained women in Klal Yisroel. He
is very dedicated to finding the proper Halachically sound iron clad solution.
As such, he proposes a 3-step solution.
Step 1 is for the
couple to sign a mutual release from the obligations of the BDA PNA in the
event that the couple may have actually already signed one. Needless to say
that if they haven’t already signed the BDA PNA, this step is unnecessary.
Step 2 is to sign a
document through which they are “shielding” themselves from being subjected to
the NY or Canadian Get Laws. I will not dwell on this part and, obviously, it is
only necessary for those who “plan” on getting divorced in New York State or in
Canada. Of course, nobody who gets married can know for certain where they will
wind up down the road so perhaps it is advisable for everybody.
Step 3 is the
“kosher” monetary pressure which will inspire [almost] any husband to give his
wife a get. His approach is similar to the Levmore approach in that the groom
is obligating himself to some exorbitant payment to his wife for every day of
their marriage. He justifies this payment by extolling the Trei Gadya concept
of our matriarch Rivka. He says all young Jewish women are righteous and
virtuous and deserve nothing less than our matriarch received. To this end, he
coins a new phrase that, thus far, I have not found in any Halachic literature:
Tosefet mezonos.
We have a concept of
Tosefet Ketubah which is an additional and usually extravagant one-time payout
to the wife at the time of termination of the marriage that is added to the
basic measly sum of 200 zuz. We do not have any exorbitant daily allowance
(which I guess can be called “mezonos”) in our Ketubos. But we learn from
Yitzchak Avinu that we can indeed do such a thing as part of the ketubah. Rabbi
Spira wants to implement it for our ketubos and to call it “Tosefet mezonos”.
To make this sound
practical, he conjures up a spiritual perk in the form of an “all-ladies’
Yarchei Kallah voyage”. The husband, in his zeal to spiritually (and
materially) enrich his wife, is granting her a daily allowance of $1000 to use
toward this lofty endeavor. This is totally unconditional and is a “tnai
ketubah” which is in effect from the day of the marriage for “so long and only so long as the lady continues to live in
domestic harmony with me. On any day that passes on which the lady does not
claim – in whole or in part – the tosefet
mezonot herein specified, the lady will
forgive me for the balance of what she has not claimed on that day that has
already passed.”
The understanding is
that as long as she does not actually go on this “voyage”, she will be
satisfied with whatever mezonos she gets from her husband on any given day and
forfeit the rest. Yet, the document does nothing to prevent her from claiming
this money and flying out on any given day at her whim. Actually, in his essay
description, Rabbi Spira says the document entitles her to actually collect
$1000 every day if the husband has it. If he has less, she should just take
what he has and forgo the rest, but she doesn’t really have to. The husband
will simply write her an IOU (promissory note) for the balance.
Rabbi Spira, who to
the best of my knowledge is not yet married, assumes that every Jewish groom should
and does feel so secure in the integrity of the newly met woman that he is
marrying that there is no reason not to totally trust her to faithfully live up
to the agreement and not abuse her unrestricted privilege. Also, that every
Jewish male should actually want his wife to handle the household finances
whether or not this is what makes them comfortable (each couple has their
method) or if she is even capable of it. Certainly, he notes, if, indeed, he
suddenly discovers that she is a con-artist, “he can bail out of the marriage
without excessive financial loss”.
How reassuring.
All this to prevent
our precious bnos Yisrael from any type of siruvei gittin.
Incidentally, there
is no mention of a waiver of her earnings but, at $30,000 per month, I suppose
it’s a moot point.
So what we have here
is actually an impaired version of Dr. Rachel Levmore’s Agreement of Mutual Respect. Both are based on a Takanas Chachmei Sefard system that there is an
immediate unconditional obligation to the wife which, supposedly, ends when the
marriage ends, i.e., when the wife gets a get. In the case of the Levmore
prenup, this obligation is offset by a reciprocal waiver from the wife. In the
Spira prenup, it is not really offset at all and, at most, on sheer trust.
The Levmore prenup
does not call this obligation “mezonos” at all but it is rather a personal
hitchayvut. It is not incorporated as part of the ketubah. In the Spira prenup,
this is called “mezonos” or, more accurately, “tosefet mezonos” and is part of
the ketubah. As such, it has all the rules of a ketubah and mezonos whereas, if
the wife initiates the divorce (which covers most cases of recalcitrance) or is
otherwise deemed a moredes, she is not entitled to it at all. This is the
meaning of the clause “so long and only so long as the lady
continues to live in domestic harmony with me” – i.e., she is not a moredes.
So, Rabbi Spira’s prenup will not work where the wife is a moredes and if she
leaves the husband on her own. And if it’s the husband who wants out, very
rarely is he recalcitrant at all!
One interesting issue
that it seems that Rabbi Spira overlooked is what happens if they do not get
divorced but the husband dies?
The standard tnai
ketubah is that a faithful wife is entitled to mezonos from the husband’s estate
until the day she dies as long as she does not remarry. We can assume that this
would apply to our matriarch Rivka if Yitzchak would have died first (he
didn’t). The clause of “living in domestic harmony” is only meant to exclude a
moredes, not that the husband is no longer living. As such, she will certainly
quickly consume the entire estate and leave nothing for the heirs!
This issue may not be
very significant. It can probably be easily fixed with a clause that terminates
the obligation upon the death of the husband.
Sof davar, what Rabbi
Spira is suggesting is a very tedious, cumbersome and risk-laden agreement
which, when it counts, is not effective in many cases. Hard to believe that any
normal chosson would be willing to sign it. Perhaps it has the approbation of
Rabbi J. David Bleich, but there do not seem to be any outside endorsements. It
may remedy the BDA prenup issue of asmachta but I cannot see any improvements
over the Levmore prenup. Actually, since the Levmore prenup makes the payment a
straight hitchayvut as opposed to a marital obligation, it’s a lot better.
In my opinion Rabbis
Spira and Bleich would be better served by simply endorsing the Levmore PNA. But
he doesn’t even mention it, as if it doesn’t exist. Or, so it seems at first
glance, but this isn’t really so. Toward
the end of his essay, he does describe another similar prenup which seems to be
the Levmore prenup. Only he doesn’t credit it to Dr. Rachel Levmore, he credits
it to Rabbi David Joseph Mescheloff. But it looks just the same and I am
assuming that perhaps Rabbi Mescheloff is a co-author of the Levmore PNA.
Rabbi Spira summarily
dismisses the Levmore-Mescheloff PNA precisely because it is built on the
Chachmei Sefard concept that I described in the previous post. Rabbi Spira
believes that there is some kind of a tartei d’sasrei (catch-22) with implementing
the Chachmei Sefard technique. He maintains that the hitchayvut of the Levmore
PNA is contingent on the husband being able to deliver a kosher get. Thus, he argues,
since the husband cannot give a get before the married and after the marriage the
financial obligation coerces him to give a get which isn’t a kosher get,
therefore the obligation cannot take effect. I don’t want to get too technical,
but I am very skeptical about his catch-22.
Overall, I don’t
think this PNA is very practical or useful. To the contrary, just as I previously
criticized Rabbi Bleich’s Tenayim prenup as the strongest catalyst for divorce,
I feel the same way about this one. Thus, it stands to do more harm than good. The only positive thing is the part about shielding
the couple from the New York and Canadian Get Laws. This may be very
worth-while.
Before I close this
post, it is worth mentioning that Rabbi Spira, in his final section, brings one
other type of prenuptial agreement devised by HRHG Yosef Eliyahu Henkin, ZTL. Rabbi
Henkin suggests protecting women from agunah-ness by implementing:
a tripartite prenuptial agreement consisting of (a) an ordinance of a Beth Din representing the entire Jewish People to revoke kiddushin in case of an uncooperative husband; (b) the delivery of a get from the husband to the wife at the time of the chuppah, on condition that the get should take effect after the last act of cohabitation between husband and wife, before the husband becomes uncooperative; and (c) kiddushin on stipulation that if neither the Beth Din ordinance nor the get are successful, and still the husband should remain uncooperative in the future, then the initial kiddushin should be nullified.
In other words, at
the time of one’s marriage, he should get divorced as well. Only the divorce
will take place whenever Beis Din decides it should. In the meanwhile, they
should act as if they are married.
Far be it for me to
even contemplate holding a candle to the halachic prowess of HRHG YE Henkin,
ZTL so this needs to be evaluated more on Hashkafic grounds than Halachic ones.
Not only would such a system be used to mattir agunos but it would certainly be
applied to retroactively clean adulterous affairs and mattir mamzerim. This
would lead to a total breakdown of the kedusha of marriage and destroy more
families than it will save. Needless to say, this approach did not gain a
foothold in the chareidi world. As a post script, Rabbi Spira notes that it
seems that Rav Henkin himself retracted his idea.
This basically
concludes my Consumer’s Guide. I have critiqued ten out of eleven of the PNAs
on my list and added Rav Henkin’s. There is only one more to discuss, and I
intentionally saved it for last and what should be the final post in this series.
אשר עשה א-לקים את האדם ישר והמה בקשו חשבנות רבים.
Stay tuned…
1 comment:
Looking forward to the Grand Finale.
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