Prenups X: More Trei Gadya - A Consumer's Guide to Halachic Prenuptial Agreements

 

Yes, I am still writing about “Halachic” prenuptial agreements. I am fully aware that with all the craziness that is going on now – this weird Covid-19 pandemic and even weirder elections, both here in Israel and in the US – this is not a currently hot topic.  

Yet, Parshat Chayei Sara is here. This week the Torah teaches us how to get married.

Marriage is a primary part of our lives, and this dreadful pandemic is bringing out both the best of us and the worst of us. Marriages are being initiated (barely), sustained, and even dissolved under very unfamiliar, challenging, and stressful circumstances. Shalom Bayis is under assault. People who may never have considered pre-thinking marital discord may be seeing it more and even experiencing it themselves.

And the drumbeats for “Halachic” prenuptial agreements are beating louder and stronger.

So we continue (and, hopefully in another post or two, we conclude).

All through this series we have been discussing the Beis Din of America (BDA) Prenuptial Agreement (PNA) exclusively. This is because this is the creature that is being mass marketed in North America. But, as I repeatedly wrote in the previous posts, the BDA PNA is fraught with baggage. Here is an updated list. (This list will be in numbers instead of bullets so we can refer to the individual items by number. The hyperlinks will access the post where it is discussed.):

1.  Asmachta
   
   
2.   Waiver that is not binding
   
   
3.  Reliance on a distorted kim li
   
   
4.  Question if supra-mezonos is called mezonos
   
   
5.  What happens when mezonos is not obligatory (moredes or adultress)
   
   
6.  Court enforcement with no regard for Halachic nuances
   
   
7.  Coercing the chosson to sign the prenup
   
   
8. Automatic Get meuseh (Mishkanos Yaakov and Chazon Ish)
   
   
9.  The whole mechanism is a catalyst for divorce

For sure, the powers-that-be have responses to almost everything (I still haven’t gotten anything on the waiver issue) but this list does show us why this is so controversial. Fortunately, for prenup advocates, we are not stuck with this PNA as our sole option. There are quite a few alternatives.

Here in Israel, the Modern Orthodox community is marketing the Agreement for Mutual Respect designed by Dr. Rachel Levmore. It is very similar to the BDA PNA but there are some notable differences which we will discuss.

These two are the front runners because various progressive pro-prenup groups are promoting them. Yet, aside from these, there are quite a few other options. Here is a sample list:

• BDA
  
  
• Levmore
  
  
• HRHG Rav Moshe Feinstein
  
  
• Rabbi Bleich/Spira
  
  
• Rabbi JD Bleich Tenayim Prenup
  
  
• RCA Liquidation
  
  
• Rabbi SY Cohen
  
  
• Rabbi Judah Dick
  
  
• Rabbi Ariel Zvi-Rosen
  
  
• Rabbi Haskel Lookstein
  
  
• Yashar coalition

Let’s get back to the BDA. Why does it carry so much baggage?

The answer is: it is trying to achieve several conflicting goals. It is trying to pressure a husband to give his wife a get while not crossing the line into get meuseh. It is trying to be totally binding and fool-proof and that it should and remain practical and user-friendly. And they need it to be halachically sound.  

That’s a tall order, it is next to impossible to get all this in one contract. The only way they can do it is by employing some innovative Halacha and misrepresenting the concept of Kim Li.

All the other options are aware of these problems and they either forgo some of the goals or make themselves more complex and imposing upon the groom and less practical and user-friendly. One thing is certain: the mere existence of the other alternatives and the issues that they are designed to fix testify to the flaws of the competing ones!

Let’s look them over.

 

Rav Moshe Feinstein

I want to start with this one because it is the shortest and simplest. Also, it is from the pre-BDA era (1980). And, lastly, because and it is the polar opposite of the BDA PNA.

In Igros Moshe Even HaEzer IV:107 Rav Moshe ZT”L writes:

As to your question if it is acceptable to add to the tenayim this text:

If, after the marriage, the sides separate, Ch”v, the husband will not withhold giving a get piturin and the wife will not refuse to accept it as will be mandated by the Beis Din of <name of BD>.

Such a thing is permissible and will not cause a get meuseh.

The experts generally agree that the primary inhibitor to recalcitrance is merely getting the couple to agree to show up and abide to a Beis Din. Any qualified BD. So, this incentive is basically a pre-arbitration agreement to abide by the ruling of a predetermined Beis Din.

In most acrimonious divorces, there is a lack of cooperation from the get-go and it is next to impossible to even get both sides to show up in front of a Beis Din. Quite often each side insists on a different Beis Din. Once they both show up to a Beis Din, it is very difficult to maintain a recalcitrant façade. Eventually, the stubborn side cracks. Only the few and mightily stubborn succeed in snubbing Batei Din for years on end.

As such, the first part of all of these commercially marketed prenuptial agreements is that the sides agree to bring their quarrel in front of a predetermined Beis Din. In the case of the BD prenup or its Chicago affiliate, it is specifically the “local” BDA BD or, in Chicago the RSF/RYR BD.

This is what Rav Moshe Feinstein’s prenup does as well, but it does nothing more than this. There is no penalty or financial pressure or waivers so there are no problems with asmachtas, kim lis, or mezonos. It’s totally Halachically sound.

Of course, it is not recalcitrance proof, but it is not meant to be. It does not aim to solve the problem once and for all, only to reduce the cases. It’s meant for people with integrity who keep their word and honor their signatures.

The arbitration agreement part of the BDA, Yashar and some of the other prenups are written in a way as to be able to force the couple into arbitration, even by way of the secular court if necessary. Rav Moshe’s prenup doesn’t even do that. It relies on the integrity of the parties and the assumption that they are G-d fearing and will live up to the terms of the tenayim. The fact that it is written into the tenayim give it also a “divine spiritual” force due to all the charamim and kelalos that are lavished upon those who do not uphold a marriage tenayim.

Of course, the question arises if a secular court is used to enforce the agreement to go to binding arbitration in BD, does this constitute a get meuseh? It seems that most poskim won’t consider it as such. This may also be Rav Moshe’s intent, but it isn’t clear.

What is noteworthy is the way Rav Moshe concludes his teshuva. Although he says this clause is perfectly acceptable in the tenayim, he remarks:

Of course, the objective to shield a couple from the fetters of igun is a great thing, nevertheless, at the outset (l’chatchila), it is not appropriate to arbitrarily recommend this stipulation to every couple that marries. The mesader kiddushin must assess the bride and groom to ascertain if there is a risk that the nature of the couple will, Ch’V, bring about disputes and quarrels between them.

Clearly, Rav Moshe Feinstein was aware of the inherent dangers of a prenuptial agreement and was wary of them.

All told, it looks like Rav Moshe Feinstein’s “prenup” is clear on all 9 issues. This is why it is the polar opposite of the BDA PNA.

 

Dr. Rachel Levmore – Agreement of Mutual Respect

We will next discuss the Levmore initiative and leave the others for a future post.

The Levmore prenup is the Israeli version of the BDA PNA. It is being promoted by the International Young Israel Movement (IYIM) and is available in English, Hebrew, French, Spanish and Russian. I am assuming that there is no intrinsic difference between them so I will only discuss the English version. (Aside from the Hebrew one, it’s the only version I can read.) You can read it HERE.

I would say that it is a tad more modest than the BDA prenup in that it does not call itself a foolproof solution and does not boast “100% success rate”. It calls itself an agreement “for the Prevention of Get-Refusal” – not the “eradication” of it. As is indicated on their website, they are closely allied with the BDA and, indeed write in their prenup that if the couple is residing outside of Eretz Yisrael, the agreement defaults to the BDA PNA. I assume this can work in the US and Canada, but its hard to say if it is valid anywhere else.

What makes this alliance so important is the fact that, on their website, the IYIM does not display a letter of endorsement from a single Orthodox Rabbi. Not a one. It goes without saying that the current “brass” at the BDA or RCA will vouch for it, and you may say that they are piggybacking on the Rabbinic endorsements for the BDA prenup – HRHG ZN Goldberg, ZT”L, Rav Ovadia Yosef, ZTL, Rav AZ Weiss, Shlita, Rav Chaim Zimbalist, etc. -  to imply that they can be applied to theirs. Yet, there are differences and each version really needs to be endorsed. This is aside from the fact that, outside of their own Rabbinate, even the BDA prenup has no endorsements on the total product.

The Levmore prenup works on the same principle of enticing the husband to promptly give a get subject to the “penalty” of continuous excessive mezonos obligations. Since this is based in Israel, the given amount is more modest to the tune of USD $1500 per month (currently about NIS 5100) or 50% of the husband’s income of the previous month, whichever is greater, for as long as the couple remain married.

Here’s the twist. The BDA prenup works on a straightforward future obligation wherein no part of the prenup agreement even begins to take effect until the marriage is on the rocks and the couple goes into separation. It is totally “futuristic”. This brings about all the problems of asmachta and a deferred waiver and instituting a new level of mezonos which can be seen as a knas in disguise.

In order to circumvent some of these issues, the Levmore agreement employs the Chachmei Sefard method that was first discussed in this post (HERE). This is a roundabout technique wherein we immediately (i.e., from the day of the wedding) implement a monetary obligation and automatically suspend the obligation with an exemption for as long as things are good between them. When things go south and the obligation is meant to be put into effect, the exemption is cancelled. As such, the Levmore PNA divides the marriage into three time zones:

        (A) The suspended obligation period – When they are living in harmony or trying to. The aforementioned monetary obligation ($1500 or half salary per month) is theoretically in effect but is held in probation by the exemption like a suspended jail sentence.

     (B)  The “Period/Extended Period” (may or may not be what you think) – This is a time period of six to nine months after things start to turn sour and one party wants to separate. At this point, the one who wants to separate must serve formal notice to the other of his/her desire to separate and from that date the clock starts ticking. The agreement allows for a mandatory six-month period which is meant to be spent undergoing couples’ counseling and attempts for reconciliation. This period may be extended another three months if a marriage counselor recommends it. After this, only the Sender of the notice can decide whether or not to allow more time.

       (C)   The active obligation period – When rehabilitation has failed, it is now like violating probation and the earlier dormant obligation is activated with no further exemption.    

So here is what the agreement stipulates: The husband obligates himself to the exorbitant monthly “support” payment ($1500 or more) immediately at the time of the marriage. But, to postpone that for the time being, the wife agrees that she will be satisfied with whatever she receives and will not demand this exorbitant amount. If she wants to separate from him, she has to first give notice and make some effort to patch things up. Afterwards, she is allowed to demand the complete amount. This comes along with a waiver for his claim to her earnings almost the same as the PDA. So, at this point, he will be stuck with a heavy cost for staying married and will not make too much fuss about delivering a get – just like Toras Gittin recommends.

So this is almost exactly like the BDA PNA and the only main difference is that instead of writing in a futuristic obligation to take effect at some unknown point of marital strife, it takes effect immediately but is suspended until it is appropriate to implement it.

What is the advantage of this method?

Firstly, it basically eliminates issue number 1 – Asmachta. Remember, the Rema is very fond of the Chachmei Sefard system and says that it “always works”.

I also think it makes many of the other issues less problematic. We may be able to explain away issues 4 and 5 which are: “Can exaggerated ‘support’ be called ‘mezonos’”? and “What if the woman is a moredes or adulteress and not entitled to mezonos”?

Firstly, we are not changing the amount of the man’s obligations for mezonos at the breakup because he had always obligated himself to this amount. This is a bit closer to the trei gadya that Yitzchok promised Rivka from day one.

Secondly, the same argument that I used to challenge Rabbi Willig and the BDA prenup – that Yitzchok’s endowment to Rivka is a perk of the ketuba and not mezonos – can be the saving grace in the Levmore PNA. Since this amount is awarded from the start of the marriage like Yitzchok’s two goats, we can say that this obligation is not really mezonos and neither is it a knas. It is a bonus hitchayvut (perk or tosefet ketuba) that the husband is giving his wife gratis. Except, perhaps, in exchange for this, she foregoes her claim of mezonos. In the BDA prenup, this would look like a knas since it only takes effect at breakup. In the Levmore prenup, it can be argued that it was always part of the marriage agreement and can’t be called a knas. This is great, but it may come back to bite us later!

I also think that this “immediate obligation” prenup has less issues with get meuseh.  This system may not invoke the opinions of the Mishkanot Yaakov and Chazon Ish who would call any BDA-prenup-inspired get a get meuseh. Likewise, I think if the chosson was pressured to sign this before the wedding, it is not as serious in this prenup for the same reasons (i.e., that the obligation is immediate and not a knas imposed later on). And, again, since this obligation began at the marriage and is not dependent on whether the wife is Halachically entitled to mezonos, it could be said that even if a non-Jewish court enforces the “support” obligation, there is no concern of get meuseh. Actually, Rav Moshe Feinstein seems to write this explicitly in IgM Eh”E IV:106. All this can potentially alleviate issues 6, 7, and 8!

The Levmore PNA makes no mention of relying on kim li to put this thing in effect. Actually, in Clause D, it goes the opposite direction and directs the party under obligation to forgo any defensive claims that could be based on kim li. This alleviates issue number 3.

So, what’s left?

Well, issue number 2. In my opinion, it doesn’t do anything to help the problems with the waiver. Moreover, it does not even have the vacuous “will be deemed to have repeated this at the time of the wedding clause”. You might want to counter that, here in Israel, it is rare that a wife earns enough to really offset the obligation. Maybe yes and maybe not.

The only other issue is number 9 which is not a Halachic problem but a philosophical one that applies to almost any prenup – the prenup itself is a catalyst to ensure that the breakup winds up in divorce. But even this is alleviated with the mandatory reconciliation period which is not required in the BDA prenup. Basically, this obligation only kicks in when almost all hope is lost.

So, at this stage, the Levmore PNA is scoring much higher than the BDA prenup in Halachic integrity. And, in truth, of the two models, I do think it is the better one. You “get” more with Levmore! (All puns intended.)

So, what’s the downside and why is it playing second fiddle?

Yes, indeed, there are a number of flaws.

First and foremost, I already noted that there are no prominent poskim who directly endorse this prenup. It may be safe to assume that any posek who endorses the BDA prenup will certainly endorse this one because it’s even better but, still, there are no official endorsements on record (or on display).

Another problem is that this prenup has absolutely no preliminary arbitration agreement. There is no agreement to take their quarrel to any BD at any point in the process. The Rav Moshe Feinstein agreement and the Yashar Coalition agreement (not this post) are nothing but let’s-go-to-BD arbitration agreements. The BDA agreement is both an arbitration agreement and a financial obligation agreement. The Levmore PNA is nothing but a financial obligation agreement with no prerequisite mention of any direction or supervision of Beis Din!

[Note - Beis Din does make a cameo appearance in clause E-5 (Man’s obligation) and F-5 (Wife’s obligation) solely regarding the wife’s appearance or lack thereof as a determining factor to her eligibility or liability after the fact, but there is no previous stipulation for her to show up or any talk of the husband showing up to BD at all in the entire document.]

As such, in clause D, the part about the interim rehabilitation period, the determination on whether the marriage is salvageable is left strictly to the discretion of a “marriage counselor” with no involvement of a Beis Din whatsoever.

Moreover, on the side that this $1500 obligation does have all the trappings of Halachic mezonos, then it is subject to the conditions of eligibility to mezonos. The BDA promoters (e.g., Rabbi Michael Broyde) acknowledge that their Beis Din may determine if the wife is not eligible for mezonos, but the Levmore agreement does not entrust anything to Beis Din!

You might want to answer that this agreement is designed for Eretz Yisrael and, in Eretz Yisrael, the Rabbanut BD oversees all matters of divorce automatically. Fine and dandy, but this is only after they have opened a file in the Rabbanut. This agreement does not stipulate opening a file and seems to already set the terms. Indeed, once they open a file in BD, BD will determine if they look at this obligation as mezonos or not and, besides, if they are there already there and they are Israeli citizens, there is no need for any of this. It’s very hard to be recalcitrant here. Thus, if the wife is not eligible and the “obligation” is deemed a knas, it can likely make more problems than it solves.

Let’s take a closer look at the Levmore prenup. We will start at Clause E (1-5).

Clause E-1 sets the husband’s financial obligation for the active post-counseling period at USD $1500 or half his salary. Sub-clause E-3 is the waiver which isn’t binding. Sub-clause E-4 says that the wife gets her money regardless. It does not matter if she is a moredes or adultress or otherwise not Halachically eligible for mezonos – but it is subject to E-5. Sub-clause E-5 presents the sole exclusion to E-4: if the wife does not show up to Beis Din as required or refuses to accept a get, only then is the husband exempt. It does not indicate any other form of non-cooperation from the wife such as showing up to BD but not listening to them and/or dragging out proceedings or reaching a settlement.

To summarize this part, the husband’s dormant obligation comes to life when the wife wants to separate and they undergo an interim counseling period which could possibly be torpedoed by said wife. Thereupon, as long as she shows up to Beis Din and claims she is willing to take a get, he needs to keep paying her until things are settled regardless of who is holding out for better terms and regardless if he is arguing for Shalom Bayis.

Got it?

Now let’s look at “the better half” – Clause F. Clause F is the reciprocity clause wherein the woman is also obligated to pay her husband the greater of $1500 or half her monthly income after the interim period for no reason whatsoever!

We do not understand why she should pay her husband until we reach sub-clause F-5. There it gives the counter-exemption that this obligation is not enforced if the wife shows up to Beis Din as expected and agrees to take a get. Here again, showing up to Beis Din is her way out of this obligation regardless of any other misbehavior on her part.

Notice that this part is also set up with the Chachmei Sefard early-obligation method. But why?

Unlike the husband’s obligation (Clause E) which takes effect immediately at the wedding, the wife’s obligation, even if applicable, is not even born until the breakup. As such, what do we need a Chachmei Sefard maneuver for and how does it even help? This is a futuristic conditional obligation declared at the wedding which goes into effect later. This has the exact same asmachta problem as anything in the BDA prenup. The Chachmei Sefard remedy is worthless!

As an aside, it’s nice to have reciprocity, but if the wife is a housewife or very low wage earner, there is nothing for her to offer the husband. Of course, the same goes for her if the husband is broke. She won’t get the $1500 either, and if there are kids, she can forget it. Poor husbands are much more common here in Israel.

After Clauses E and F comes Clause G which explicitly affirms what I just wrote above that the husband’s obligations are enforced and the wife’s are exempted based on the wife’s consent to accept a get regardless of the wife not consenting to settle on collateral issues. They even spell out a long list of collateral issues.

Clause R is where it says that if the either party is no longer residing in Israel, or is somewhere where there is no jurisdiction on this agreement, then they are defaulting to the BDA prenup as a substitute.

I am not a lawyer, but I wonder if such a clause is really enforceable to subject someone to an agreement that they did not actually sign. Moreover, as I brought up way earlier, could this be enforced outside of the US and Canada? In Mexico? South Africa? Australia? Europe?

The only other clauses I want to bring up is the Q and L paradox. Clause Q is the standard legalese that says that the parties acknowledge that they read and understand the agreement and consulted with the experts and are not being coerced.

Going back to Clause L, we have the Halachic legalese which puts in all the anti-asmachta disclaimers of m’achshav and Beis Din chashuv and kinyan hamo’il – the usual suspects. All this is fine and makes sense per the Halachic shitos that recommend these. But there is one part that doesn’t work. This is the bitul modaah.

What is a modaah and what is a bitul modaah and why won’t it work here?

Chazal were aware that in our cruel dog-eat-dog business world, people may be forced into agreements they don’t want to make. The Sapranowitzes may make an offer they can’t refuse like: “In three minutes, either your signature or what’s left of you will be on this contract.”

To protect an honest Joe from this thuggery, Chazal determined that a person can notify – i.e., give a verbal “modaah” or notification­ – to two witnesses on the sly that he is being forced to sign a contract against his will. Later on, he can bring these two witnesses to Beis Din to testify that even though he clearly signed the contract, he didn’t want to and Beis Din will invalidate the contract. This can be done for any contract that requires the free will of the party including a get.

But this open’s a Pandora’s box since, now, any unscrupulous husband can give a get today and, theoretically, he can later bring two witnesses – real or fake – and claim that he notified them that he was forced to give this get and it will invalidate the get. This can cause big problems especially if the wife married somebody else and had children.  

To prevent this from happening, Chazal mandated that as part of the ceremony in every single get proceeding, the husband must first make a declaration that he never gave a modaah to any witnesses and he is cancelling any modaah that comes forth as well as invalidating any witness that tries to claim such a thing. Only then do we allow him to give the get. This sub-ritual is called a “bitul modaah”.

The Levmore prenup wants to insert a bitul modaah into their agreement by writing it in as a clause in the agreement. Problem is, you can’t write a bitul modaah into the very document that you are trying to protect. If you were really forced to sign this document, then you can claim that you were forced to sign the whole thing including the written bitul modaah as well. It’s part of the document so it’s part of what you were forced to sign. If you really produce a modaah, it will invalidate the document including the bitul modaah that is in it.

A modaah works as a verbal notice that is given to witnesses outside of the document in question. And a bitul modaah is done verbally in front of Beis Din. It is never part of the document and it can’t be.

As such, the bittul modaah portion of Clause L is totally worthless. That said, if the husband actually does bring witnesses that he made a modaah that he is being coerced, it is going to nullify Clause Q as well. Subsequently, it will nullify the entire prenuptial agreement.

So now we see the Achilles Heel of the Levmore PNA. It may be on a little better Halachic footing (except for the waiver and the bittul modaah) but it is a much harder sell. It is less user-friendly and much more imposing upon the husband to be.

The BDA prenup does not require any commitments to be put into effect right away. This is what makes it so popular. It is one of the most user friendly prenups. Everything – the expanded mezonos and the waiver of the wife’s income – only takes effect when trouble is a brewin’. This puts people at ease because they don’t anticipate any trouble. Alas, it is also a part of its undoing. The delay for implementation brings out the problems of asmachta and exaggerated or undeserved mezonos.

In order to alleviate the asmachta and mezonos problems, the Levmore prenup uses the Chachmei Sefard method which saddles the chosson with a whopping support obligation right out of the starting gate. Sure, the obligation is held back by the automatic exemption, but psychologically, the chosson will feel under constant threat. The suggestion that this obligation is not really mezonos and not subject to eligibility limitations can work against us because then it can be said that the wife can collect it even if she is the “shtinker”. And, lastly, it seems even easier for a secular court to enforce this obligation and force the husband to pay it than it is with the BDA prenup.

So let’s play this out. At the chosson tish:

Masader Kiddushin (MK): Mazel Tov, Chaim. You must be very excited.

Chasan d’nan (CD): Sure am, but a bit nervous. I hope I am doing the right thing.

MK: Sure you are. We already did the tenayim. Now we need to fill in the ketubah and I want you to sign this.

CD: What is this?

MK: It’s a Prenuptial Agreement of Mutual Respect for the Prevention of Get-Refusal.

CD: I am not planning to give a get.

MK: Of course you’re not. That’s why you need to sign this. Sometimes plans change. You wouldn’t want your sweet lovely kallah to get hurt, would you?

CD: Well, what does it say?

MK: It says that you must fork over to your wife either USD $1500 (NIS 5100) or half of your income (whichever is more) every month starting tomorrow.

CD: USD $1500 (NIS 5100)? I’m going to Kollel. She’s the one who’s working.

MK: Good for you. Listen, don’t worry about it. She needs to sign it too and it says that she won’t ask you for more than you give her.

CD: What if she does?

MK: You don’t have to give her. She agrees not to ask.

CD: Then why am I making this ridiculous obligation?

MK: In case she wants to leave you, then she’s allowed to ask.

CD: Let me get this straight. When we are living together and I need to feed her she will be happy with whatever I can come up with, but if she runs away from me and I don’t really need to feed her, I need to give her half of what I make or more?

MK: Chaim, you’re such a special guy. She would never run from you unless you’re not getting along. This is meant so that you can end it quickly with get.

CD: I could end it quickly with a get without paying USD $1500 every month.

MK: It’ll just go even quicker. Also, you may have second thoughts about giving a get.

CD: Well, maybe because I want to work it out.

MK: You get six to nine months to pull that off.

CD: And then?

MK: If she wants out, you give a get or pay up.

CD: If I still want to work it out?

MK: Her choice.

CD: Just like everything else. Look. I have no plans of mistreating her. I plan to live happily ever after.

MK: I told you, plans can change.

CD: Hers or mine?

MK: You never know.

CD: What’s in it for me?

MK: Well, if you want to give her a get and she doesn’t want to take it, she will have to pay you.

CD: Also starting tomorrow?

MK: No. Her obligation only starts at showtime.

CD: Look. I’m not planning on divorcing my wife and I hope she’s not planning on divorcing me. I’m not interested in writing her a $1500 monthly check starting tomorrow even if she won’t cash it. I don’t want to give her any ideas. I’ll pass on this and just write my wife a ketuba like my father did and his father did.

Quite frankly, this is not the kind of conversation a chosson wants to have at his chosson tish or even a week or month before it. It can put some dark clouds in the sunshine and can actually tarnish the entire relationship. Like Rav Moshe Feinstein says, it can do more harm than good.

At the end of the day, this prenup is just a variation of the BDA prenup. Better in some ways and worse in others. Of the two, I still think it’s the better one (I live in Israel). So, if you are in favor of prenups, go for it.

There are several other “also ran” options on the list. And I would like to run through them. We’ll do it in an upcoming post.

In the meanwhile, Eliezer Eved Avrohom gave Rivka a gold nose ring and two bracelets and camel-fulls of goodies in the name of Yitzchok, and he gave her a ketuba with two goats a day - but he didn’t write her a “Halachic prenup”.

  

Rosh Hashanah and the Battered Wife

 

 

ברוך הסגר אשר [בגללו] נבטח בה'

I have a great deal of admiration for Rav Dovid Saks of Scranton, Pa. I have never met him personally but I found myself on the receiving end of his weekly Parsha newsletters. He calls his program the Jewish Heritage Connection. The main part of his weekly email is his Shabbat Message which, unlike my blog, is short and to the point. I have found it to be very inspirational and have even quoted him on occasion (this is going to be one such occasion). The rest of the newsletter are community bulletins which shows that he is very dedicated to his flock.

Last week’s Shabbat Message did not really have anything to do with last week’s Parsha (Netzavim-Vayelech) but rather with the upcoming Rosh Hashanah and the fact that, this year, the first day of Rosh Hashanah falls out on Shabbos.

Here is the main part of what he wrote:

This year Rosh Hashana falls on Shabbos and Sunday. The Shofar is not sounded on the Shabbos because the sages were concerned that in one's zeal to fulfill the mitzvah he might come to desecrate the Shabbos. The Talmud explains that this rule is hinted at in the Torah where Rosh Hashana is called, "a day of Teruah," yet, it is also refers to it as "a day of remembrance of the Teruah," for when Rosh Hashana falls during the week we actually sound the Shofar, however, when it coincides with Shabbos, we do not sound the Shofar. Rather we only remember the Shofar in our prayers. 

A question is raised: We know that there is a tremendous power in the Shofar sounds, for it silences the Satan from presenting his prosecution against us. If so, what stands for our defense on Shabbos when the Shofar is not sounded? The answer is, that our observance of the holy Shabbos itself protects us and silences the Satan! 

I came across an article written by Rabbi Yaacov Feitman who quotes an illustration given by Rabbi Yaacov Ettlinger o.b.m. to explain how the Shabbos comes to our benefit and protection. 

An officer sinned terribly against the king, and he sentenced him to death. None of the officer's attorneys could calm the angry monarch and convince him to change his dreadful sentence. 

In desperation, the wife of the officer tearfully stood before the king and poured her heart out. "Your majesty, my husband did indeed transgress toward you. However, it was a one-time aberration; he is truly loyal to you. Please, I beg you not to execute him and leave me as a widow and my children as orphans." The king was moved by her honesty and pain and granted clemency. 

A few months later, another officer was disloyal to the king and was sentenced to death. The officer asked his wife to speak her heart out to the king because this was effective in the previous incident. 

When his wife appeared before the king, he noticed that she was covered with bruises. He ordered an investigation and discovered that it was her husband's doing. The king maintained the sentence of the officer. When the officer cried that this was unfair, the king answered him, "Your wife did not speak out of her love for you. She spoke because she was afraid of your wrath, and for that there is no clemency." 

Rabbi Ettlinger continues. The Medrash relates to us that the Shabbos is the bride of the Jewish people. We express this as we welcome the Shabbos in our prayers, when we chant, Lecho Dodi Likras Kalla - "Come my beloved toward the (Shabbos) bride." 

Shabbos is our bride and on Rosh Hashana when we are not permitted to sound the Shofar out of concern that one may transgress the Shabbos law of carrying the Shofar in a public domain - our reverence for the sanctity of the Shabbos bride stands in our defense and pleads our case because we have a loving relationship with her. 

We give up the Shofar, our most powerful tool to obtain a good year. G-d hears the Shabbos brides' cries and supplications on our behalf and our King forgives us because of her! A Shofarless Shabbos Rosh Hashana can bring us great blessings! 

However, what can be concerning is the flipside. If the Shabbos bride is injured, abused and treated unkindly, Shabbos is unable to make a winning presentation and without the Shofar to protect us, our protection is compromised.

 

The message up to this point is: When we treat Shabbos with love and respect, we have a very charismatic “wife” who can come and plead on our behalf and make a positive impression. But for those who mistreat and abuse the Shabbos (R”L), the “wife” will only be able to show up covered with black eyes and bruises and won’t be able to make a very convincing plea motion.

I am omitting his last three paragraphs. In the last three paragraphs he concludes this message in a way that is suited for his American readers. But as I read it, it seemed to me that here in Eretz Yisrael there is an alternative application that makes this message even more appropriate.

As many of you know, even if you do not live here in Eretz Yisrael, the Israeli government has announced a full-scale lockdown (seger – סגר) for the entire country to commence on the eve of Rosh Hashanah and to continue on throughout the holidays.

For the religious Jews, there is not much impact from this except that men’s mikvaos will be closed. We also won’t be able to have non-related guests. Family members can still come if they live in the neighborhood or show up before 2:00 pm on Friday. But we are all anyway home for Yom Tov and the shuls will function even if there will be some restrictions. For those who always treat their Shabbos “bride” with honor, there will not be much of a difference.

The major impact will be with the irreligious who don’t observe Shabbos and even if they make kiddush and have a meal, spend the rest of the day going to the malls or beaches and nightclubs or watching and playing soccer. These folks will be “forced” to subdue their wanderlust this Shabbos/Rosh Hashanah. This year they will be forced to treat the Shabbos “bride” a lot nicer. Hopefully, the Shabbos “Chiquita” will have fewer bruises.

We are all one nation so we all have only one Shabbos “bride”. Even though many of us are Shomer Shabbos, we are the minority. Every Shabbos-Rosh Hashanah until now has been compromised because the “wife” has shown up to plead for us full of bruises at the hands of those who mistreat her. HKBH has never really been able to “let us off” despite those who observe Shabbos properly. There have always been too many black eyes and bruises.

HKBH has had enough. He wants to see the “wife” clear and pristine. For once, He may be able to “let us off” but she needs to come on behalf of all of us. And she needs to look like she is loved and honored so she can make a good impression. If this seger is what it takes to get it done, then this is what we are going to get. It’s for the benefit of all of us.

Currently, there are news clips in circulation revealing that the Chasam Sofer wrote about 190 years ago that the numerical value of תשף (5’780) has some very negative insinuations. But when you add an א to it to make תשפא (5’781) you have the word אשפת which suggests  מאשפת ירים אביון – the destitute will rise out of the dung heaps. A reference to a year of salvation.

May this be the year that we rise from the ashes of golus!

מקימי מעפר דל, מאשפת ירים אביון. להושיבי עם נדיבים, עם נדיבי עמו. מושיבי עקרת הבית, אם הבנים שמחה הללו-קה!

 

לשנה טובה תכתבו ותחתמו!!!

 

Prenups IX – Trei Gadya, Trei Gadya – Part 3: Is There Such a Thing as a Free Lunch?

Author's note - If you are new to the blog or this series, it is recommended to see some of the earlier posts. The opening post of the Prenups series can be seen HERE. The first two posts of the "Trei Gadya" section can be seen at: Part 1 and Part 2. The entire Prenups series can be seen HERE.

Klal Yisrael is currently mourning the recent passing of an extraordinary Gadol and posek, HRHG Zalman Nechemiah Goldberg, ZT”L. He was the son-in-law of HRHG Shlomo Zalman Auerbach, ZT”L and, like his illustrious father-in-law, he was known to paskin with humility, flexibility and sensitivity. Yehi zichro baruch.

Personally, I was not zocheh to meet him or to interact with him, but I referenced him in some previous posts regarding his role as an advocate for utilizing prenuptial agreements to reduce cases of agunot and get refusal. I noted that, back in 1992, he was the actual author of the initial draft of the Halachic terms and conditions that eventually became the BDA (Beth Din of America) PNA (Prenuptial Agreement).

In these previous posts we scrutinized the BDA Prenup to bring it up to date and we claimed that it carries quite a bit of baggage. In my opinion, there is way too much baggage to make it a viable instrument to solve the problem of recalcitrance in divorce cases.

It’s been a while since I wrote about this so it’s best to summarize the previous posts.

How is the BDA prenup supposed to work?

The idea is to create some kind of financial pressure to entice the ex-husband-to-be to give his wife a prompt get which will not be deemed to be coercion which would invalidate the get. For this, we need to find “kosher” financial pressure. Many authorities maintain that a monetary penalty for delaying a get is not acceptable. But, suppose we create a monetary penalty for staying married?

One individual 19^th century posek – Toras Gittin – suggested this approach based on the husband’s obligation for spousal support. Based on his suggestion, Rabbi Mordechai Willig, Shlita, with the assistance of HRHG ZN Goldberg, ZT”L, fashioned what is now the current BDA prenup.

Before I explain how it works, let’s do a quick overview on “spousal support” obligations.

A husband is normally responsible for reasonable support for his wife, food, clothing and shelter. This is called mezonos.

When the couple lives together in harmony these basic needs are covered under standard living conditions that follow the principle of “two can live as cheaply as one”. Suppose a middle-class man needs $3000 per month to provide himself with a roof for his head, food, clothes, appliances (Wi-Fi), and other essentials. Maybe another $1000 per month for a car. In most cases, to support an additional live-in partner, i.e. wife, at the same standard, doesn’t cost more than an additional $1000 a month. Maybe even less! Especially if they share the car. They’ll do fine as a couple for $5000 per month.

Thus, it can be argued that standard middle-class mezonos for a wife is $1000. He is anyway spending $4000 for himself with the car.

However, when two people who might be living together are each living on their own, each one needs the same $3000 per month for separate living quarters, their own microwave, fridge and washer (and Wi-Fi), and let’s not forget that she wants her own car. That’ll be $4000 each.

So, let’s go with this and pretend that separated mezonos is also called mezonos (big issue). Let’s bump it up a few more bucks for good measure.

Now, on the flip side, because a husband needs to cover the extra $1000 to support his wife, Chazal decreed that he may lay claim to any earnings she may have, at least to that amount. In the event he is required to pay a larger amount of mezonos such as $4000, he can lay claim to at least that amount. Many say he can lay claim to any amount she earns but, if she prefers, she can opt to refuse the support and keep all her earnings.

Now, how does the prenup work?

On the eve of the wedding, we have the couple sign an agreement that in case the union goes South (and becomes a Confederacy) and the couple no longer live as a couple ($1000 bracket), he is hereby obligating himself to support his wife at the individual rate ($4000 plus) for as long as they remain married. What’s more, he is hereby waiving his rights to lay claim on her earnings which could offset this burden. As a result, he will find himself shelling out +/- $4500 per month to support a woman he is at odds with and will receive nothing in return. This will inspire him to give his wife a get, the sooner the better.

The idea is that this isn’t a monetary penalty for not giving a get. It is just ramping up the cost of staying married with amounts that the husband is obligated for regardless.

Ingenious!

But very contentious.

There is a long list of issues that cast a shadow on this innovation. Many of them were covered in my previous posts.

One issue that has not yet been discussed (hence, one purpose of this post) is (a) the crux of the “obligation” for mezonos and (b) what is its true amount. As I just indicated, this is a two-fold concern:

(A) The obligation itself. When is it in force and when not?

(B) Even if it is in force, how much is the husband really required to pay according to the Halacha? What is considered mezonos under these circumstances? The ex-wife can certainly live without a car and without Wi-Fi even if it hampers her accustomed lifestyle. Does he need to cover more than essentials? Is “voluntarily” paying more than this considered also to be mezonos or is it a knas in disguise?

Let’s first examine the basic obligation (A). Our main concern is the fundamental Halacha (Even HaEzer 70:11 Rema) which states that “a man is not obligated for the mezonos of his wife unless she is [living] with him”.

The basic Halacha is that when a man and wife are separated from each other, the obligation for mezonos is not in effect. Period. As such, any money he gives is not mandated by Halacha and will be classified as a self-imposed monetary obligation or “knas”, in short.

Toras Gittin will not necessarily help us. He was talking in a situation where the woman is not abandoning her husband, so the existing mezonos obligation remains in effect. Conversely, the BDA prenup expressly opens as follows:

Should a dispute arise between the parties, so that they do not live together as husband and wife,

The PNA is talking only when the couple is living apart. This is the exact situation where Rema states that there is no Halachic obligation for mezonos. It ruins the whole party!

Of course, there are exceptions. Most notably, cases where the woman did not really want to leave her husband but the circumstances make it impossible for her to stay. For this, she must have the approval of Beis Din to leave her husband. As long as she was not being physically abused and did not stand in danger of physical harm, she cannot leave the home on her own and be entitled to mezonos by Halacha. Even if Beis Din agrees with her reasons for leaving (again, we are not talking violence) and approves of the separation, her entitlement to mezonos only starts at that point and there is no Halachic basis for Beit din to award her mezonos retroactively for the time she left the home without their approval.

The other exception is in a case where Beis Din says he is obligated to give a get and the husband delays it without justification. If this situation is clear-cut, like a delay due to sheer spite, there is a definite obligation for at least basic mezonos (see concern B), so we are good in this department. But in real life, things are never so clear-cut and it can get very sticky. Unfortunately for the BDA, most situations where husbands delay giving a get are not cases of sheer spite. There may be a myriad of issues involving children or marital assets or claims of damages for abandonment (of the husband) that are holding up the show and are quite justified. Typically, the wife is just as stubborn and recalcitrant as the husband in these areas.

In fact, the basic policy in the Rabbanut in Eretz Yisroel is that a get cannot be given until all collateral issues are addressed. If they are not settled it is inevitably because both sides are fighting. Unless Beis Din sincerely believes that the husband is being exclusively unreasonable, we cannot say the husband is delaying the get. As such, there is no obligation for mezonos. We are back in Knas-land.

All the above applies to where the woman is reasonable and not an official moredes. It goes without saying that a bona fide moredes is not entitled to mezonos at all. Objectively speaking, this must be the situation in a large percentage of cases. But, how objective is the BDA?

In Part One of Trey Gadya I quoted Reb Michael J. Broyde who, in a guest blog post on Emes V’Emunah, asserted that the BDA would “responsibly” (quote marks are mine – YH) determine whether or not the wife is entitled to any mezonos. His words were, “since the BDA Prenup is an arbitration agreement, the bet din panel hearing this matter could decide not to order the payments…”.

Sure they “could”. But “would” they? After all, Reb Broyde emphasizes that they are “an arbitration…panel”. This means they can make arbitrary decisions which may not conform to the Halachic mandates.

Since they police themselves, it is impossible to know.

To sum up concern A, the ex-HTB may find himself paying mezonos that Halachically he is not obligated to pay. If so, these payments would constitute a knas and challenge the validity of the get. This is even worse if the wife turns to the secular court to enforce the agreement. Note, there is no stipulation in the PNA that the support – i.e., mezonos – must be Halachically sanctioned.* The court would enforce the PNA as written.

[*Note – The text of the prenup does indeed include the phrase “in lieu of my Jewish law obligation of support…” which the BDA can claim is designed to stipulate linking the legal enforceability to the Halachic terms. I think it is obvious that this is way too vague and subjective to depend upon. I can’t imagine that a non-Jewish civil judge who is clueless about Even HaEzer will interpret it as a stipulation.]

Concern B focuses on what amount can reasonably be classified as mezonos. The standard mezonos relates to a couple living together wherein “she eats and drinks what he eats and drinks”. But if he doesn’t want her to eat with him, Beis din sets a minimum standard that he must maintain. “This applies to the poorest of Jews, but if he is wealthy, it goes according to his wealth.” The Rema says earlier that if she is not eating with him at his table, he must at least provide for her by the standards of the family she came from and if his standards are higher, then by his standards.

This is known as the principle of “oleh imo” that a wife is elevated to the higher standards of her husband but is not “yoredes imo” – she does not need to downgrade her standards to his if they are lower.

The question is, does “oleh imo” apply to cases where the couple is at odds and the husband still has an obligation of support?

Actually, this was a very intricate matter discussed by the Beis Din HaGadol in Yerushalayim in February 2018 (see HERE). The local Rabbanut BD in Netanya ruled that the principle of “oleh imo” does not apply to an estranged couple. The ruling was appealed to the Beis Din HaGadol in Yerushalayim (HRHG Rav Dovid Lau, Shlita) and they unanimously overturned the ruling and said that the Rishonim who uphold the status clearly overwhelm the few Rishonim (Rashi and Rosh) who say it does not apply.

It emerges that, as long as the support amount preserves her current standard of living, it is not excessive. So far so good.

Still and all, this only applies to things that go into the category of mezonos. This includes food, clothing, personal hygiene products, healthcare and bedding. But, what kind of living quarters is she entitled to on his dime? Her own place or a shared apartment? 

Also, where is she living anyway? In many situations of couples separating, the wife remains in the previous family home. If it is owned and paid for, then dwelling expenses are null. And she anyway own her "half". Oft-times there may be a mortgage or rent which is being paid for by husband's income and this payment is still going on (perhaps if only for the benefit of the children). In this case, the woman is living "rent free" and there are no grounds to calculate dwelling in any assessment for what is reasonable mezonos.

Is a car considered “mezonos”? Nobody really needs a car to live. If they each had their own and she still has her car, does he now need to cover its upkeep? And certainly, nobody needs Wi-Fi or an iPhone or MP3 player to live.

What if they both came from a simple background but with the combination of both his and her incomes they were able to live higher? They were only living higher because of her added income. The “oleh imo” until now was not due to his own wealth but their combined wealth. Now she left and took it with her. Can she still claim “oleh imo” status from a husband who never had it on his own in the first place?

So now, if she can maintain the same food, clothes, healthcare and bedding and share an apartment all for $3000 per month and the mezonos clause calls for $4500 per month, is the extra $1500 mezonos or a knas? (Even more so if she is "rent free" and doesn't need more than $1500 per month.)

Clearly, all this is subject to divergent points of view. Some poskim will call it mezonos and others won’t. Note the Chief Rabbinate in Yerushalayim and the Beis Din in Netanya were not in agreement.

And the big question is… does consent of the (soon to be ex-)husband to consider this inflated figure “mezonos“ make it so?

This is another serious point of contention. Rav Moshe Sternbuch is very skeptical about this. He holds that an exaggerated amount cannot be considered mezonos. Others have stated that we absolutely cannot consider any amount in excess of what an objective Beis Din would calculate to be mezonos. In his talk (66:30), HRHG Mordechai Willig, Shlita mentions one such posek, Harav Beeri, and presents it as if he is an aberration, a daas yachid. Based on my research, I think that there are many who share this viewpoint, especially here in Eretz Yisrael.

There is no such thing as a free lunch.

Rav Willig himself wants to maintain that a person can designate any amount that he wants and call it mezonos, and he brings HRHG Zalman Nechemiah Goldberg, ZT”L as an ally. As “proof” he mentions the well-known Rashi in Parshat Toldos (Breishis 27:9 s.v. Kach Li). In the Chumash, Rivka instructs Yaakov to go to the goat pen and “take for me” two kid goats. Rashi references the Midrash Rabba Breishis 65:10 which says that Rivka was saying: They are my property and are not gezel. For so had Yitzchak stipulated in her Ketubah that she may take two kid goats every day.”

Two kid goats. Trei gadya!

Rav Willig exclaims at his talk (69:40) in a tone of astonishment, “שני גדיי עזים every day, that’s a lot for mezonos. שני גדיי עזים a day! A DAY!!” He seems to consider this something very exorbitant and “a lot for mezonos”. As such, it is justified to designate any sum for mezonos no matter how exorbitant.

With all due respect to Rabbi Willig, Shlita and HRHG Zalman Nechemia Goldberg, ZT”L, I think this “proof” is worse than weak.

As a preliminary point, we have a tradition that even though Midrashim can be used as a supporting aspect to Halachic concepts that have other sources, they cannot be used as a standalone source to teach us Halacha. But let’s overlook this technicality. There are other problems:

There is a Talmudic term “ממה נפשך” which means either way you want to look at it, you have a problem. If we suppose that Yitzchak Avinu was wealthy and this type of “mezonos” was commensurate to his wealth and, as such, it is his basic obligation for mezonos, why did it need to be stipulated in the Ketuba? She is entitled to it anyway. She can eat whatever he can eat! (See the following Rashi.) 

On the other hand, if this stipulation is beyond what she is entitled to, who is to say that this is “mezonos”? It seems more like what we know as “tosefet ketubah” which means added perks (bonus) to entice the wife. Just because it is in the ketuba, what makes it mezonos??? Especially if he would not be obligated to supply it regardless?

·       Next, it seems that Yitzchak was wealthy and such a stipulation (or support obligation) was clearly within his means. Who is to say that one can make such a stipulation as “mezonos” when it is clearly beyond his means?

·       Next, Rivka was awarded this bonus from day one with no conditions. So, even if it is termed “mezonos” it is the mezonos she was always getting (as per the Toras Gittin). How can some new inflated figure become mezonos today even though it wasn’t mezonos yesterday?

·       Next, the husband’s obligations of the ketuba is for the wife doing one thing in return: הוו לי לאינתו – be for me a wife. Who is to say that any added “mezonos” or perks (whichever) will apply in the event they go splitsville and she ceases to act as a wife?

·       And lastly, what makes anyone think that two kid goats a day are exorbitant at all? My Hagaddah tells me that a kid goat costs two zuzim. That’s all. Two kid goats are four zuzim. This is luxury? Understood that for lower class income this may be a lot but, for even upper middle class, it’s not over the top. I don’t think it is any different than two chickens a day.

True, I don’t think any woman needs two chickens a day, and I would assume that Yitzchak was simply allowing her to take two kids a day if she wants but did not expect it to happen every single day. But we need to understand that Yitzchak owned these goat herds so, although he was certainly Torahso umnaso, the Avinu family was in the goat raising business. When you produce a commodity as a family business, it’s not a big deal to give some of the family product to the wife on a regular basis. 

My mother has a first cousin who was married to a chicken farmer in Vineland, NJ. I assume he did well in business but was no millionaire. I also assume that his wife was welcome to take as many chickens a day as she might have use for – even without a clause on the ketuba.

I also know this first hand because my father, LOY”T, was in the wholesale jewelry business and you can bet that my mother’s LOY”T jewelry box has more goodies than most of her friends. This is what happens when hubby is in the business. Same for my sister whose husband is in the kosher cheese making business. Not much jewelry but plenty of muenster. In neither case is there any mention in their ketuba.

By the way, I am not even in any business and can hardly make ends meet and I still allow my wife to take two chickens every single day. And she can have them any way she wants – fried sunny-side up, scrambled, hard or soft boiled, in an omelet or poached. It’s not a big deal.

All told, it’s hard to use the case of Rivka’s kid goats as a precedent for inflated “mezonos”.

To put all this in perspective, what happens in a standard situation where there is no prenuptial agreement that pre-designates a dollar amount for “mezonos”. How is the amount determined? (Let’s say a case where the husband is abusive and the wife got approval to leave and they haven’t reached the point of a divorce decree so there is no question he must provide mezonos. To make it simple, we will assume that the wife has no personal income at all.)

Simply put, Beis Din will evaluate each case on its merits. They will look at the standard of living that the couple lived on in the good days and what the husband is currently earning and how much the wife needs and they will arrive at some reasonable figure. Anything higher than that goes into the twilight zone of inflated “artificial” mezonos.

Rav Willig and HRHG ZN Goldberg are okay with this but Rav Sternbuch and Rav Beeri and the Chazon Ish are not. There is no support from the Toras Gittin on this point nor from Yitzchak and Rivka.

These are the problems of trei gadya. I’m just putting in my two zuzi.

In previous posts we brought up quite a few other issues:

• Asmachta
  
  
• The waiver that doesn’t really work
  
  
• The misapplied Kim Li
  
  
• Coercion of the Chassan to sign the prenup even if everything else is okay.

I am not trying to claim that the BDA PNA is not valid. There are numerous qualified Talmidei chachamim who are supporting it. I am trying to claim that it is quite contentious and is not valid like all opinions. As such, it will not serve as the once-and-for-all solution to the problem of get refusal that it was hoped to become. I wrote in my opening post why this is inevitable.

Is this the best we can come up with? Is nothing else out there? Is there no competition in the marketplace?

Well, maybe there is. And this is what I want to examine in my next (and hopefully final) post of this series.

As for the PDA prenup…

חסל סידור פסח כהילכתו

לשנה הבאה בירושלים

You have the Obligation to Remain Silent…

We all know our rights. We have the right to remain silent…

…but, do we have the right to remain speaking?

I haven’t written about the Malka Leifer episode for some time now. There hasn’t been much reason to. Here’s a quick update:

In late May, there was a court ruling that Mrs. Leifer is indeed mentally fit to be extradited. Not a big surprise to me. On July 20, there was a hearing on the legal merits of extradition itself. The hearing did not go on for very long and I have no idea what arguments were put out. The media reported that the defense argued that the Australian authorities haven’t proved that the alleged offenses were non-consensual. I am no legal expert, but it seems odd to me why this should matter if it means they are conceding that the alleged offenses actually occurred. I have previously written that the defense should argue that there is no proof that any offenses took place at all. I wonder why they did not go that route.

I work pro-bono.

In any case, it seems like this solitary court hearing is all the court activity there will be and a decision will be handed down on Sept. 21 (Tzom Gedaliah). If it’s in favor of extradition, there may yet be some appeals. After all this, there will be the issue of extraditing somebody during a world-wide pandemic. This is the current state of affairs and, with everything else that is going on these days, it is hardly news. So, there really hasn’t been much for me to write about on this topic…until last Wednesday.

Last Wednesday, there was an earth-shaking development in Victoria, the home state of the Sapper sisters (accusers of Mrs. Leifer). On August 26, it was disclosed that the State of Victoria “quietly” made some changes back in February to a law called the Judicial Proceedings Reports Act (JPRA) which only surfaced now. These changes effectively ban all victims of sexual abuse from identifying themselves by name when telling over their stories on public forums. Apparently, this is only applicable to cases where the offender has been convicted but perhaps even an arrest or indictment counts. 

Click HERE to see the article that was linked in Dassi's Facebook page.

It seems like there is nothing wrong with disclosing the name of the offender, only the name of the victim! As a result, all victims are silenced unless they hide their names. The only way to circumvent this requires a court order.

This means that, as of the current time, the Sapper sisters can no longer discuss the Malka Leifer episode or present updates on the case on their dedicated Facebook page since the Facebook page is under their name and is not anonymous. They are stunned, “aghast and bewildered” not to mention upset and angry.

I am also a bit "aghast and bewildered" because their Facebook page was my main source of information.

If you are wondering what is the underlying rationale and objective of these changes and what is the logic behind it, you are not alone. The media hasn’t revealed it and it doesn’t seem to make much sense. It is a very strange and obscure law that seems to fly in the face of all Western civil liberties of freedom of speech and right to protest. It seems to be protective of offenders though it’s not clear how. 

Some say it is the work of the sinister underworld that nurtures and protects offenders and some say it was a quirk in the language of the act and is not intentional. There is a tremendous outcry from victims’ advocates and quite a few politicians along with vows to right this wrong as soon as possible. Time will tell how it pans out. But, for the moment, it is in effect.

This situation looks to be exclusive to Victoria, Australia. Not to any other part of Australia and, certainly, not anywhere else in the Western world. The fact that the Leifer episode is alleged to have happened there and that these accusing sisters are residents of Victoria is just a stroke of bad luck. 

Or is it?

Personally, I am just as bewildered as everyone else and cannot see the rhyme and reason for this law. I don’t believe governments should silence anybody, especially legitimate victims of crimes. This is absurd if not draconian.

But, as a believing Jew, we must look for the yad Hashem. We all know the pasuk in Mishlei (21:1):

לב שרים ומלכים ביד השם.

The hearts of princes and kings (and politicians) are in the hands of G-d. 

Regular folks have free will (bechira), but when it comes to the big shots (think Pharaoh and Nevuchadnetzer), HKBH programs them to act like He wants. If an absurd, logic-defying law was implemented in Victoria, Australia, even – or especially – only temporarily, it’s because HKBH wants this law to be in effect in Victoria, Australia. If victims of sexual abuse need to keep their names out of the media in Victoria, it’s because HKBH wants them to keep their names out of the media in Victoria.

Is it possible that this fashla occurred primarily for its impact on the Sapper sisters and the Leifer case? 

Many of us know the gemara in Yevamos 63a:

אמר רב אלעזר בר אבינא אין פורענות באה לעולם אלא בשביל ישראל שנאמר ... וכתיב (צפניה ג:ה) "אמרתי אך תראי אותם תקחי מוסר".

Rav Elazar ben Avina says: Bad events in the world only occur for the sake of [the nation of] Israel (Rashi – To frighten them into doing teshuva) as it states (Tzephania 3:7): “I have said that if only you will see it you will accept rebuke”.

We definitely need to learn something from this. 

Before anything else, we must acknowledge that, from the perspective of Judaism, not all types of speech are legitimate. To follow, is a short list of some types of speech that are not legitimate and should not be allowed:

• Anything that promotes idolatry, heresy, and/or atheism (avoda zara).
• Anything that promotes bloodshed (shpichas damim)
• Anything that promotes immorality, promiscuity and homosexuality (giluy arayos)
• The four חברת חשמ"ל – Those who are not mekabel pnei haShechina (Sota 42a):

               Chanufa (ח) – Praising one who is wicked or undeserving

               Sheker (ש) – Falsehood

               Mesaper lashon hara or Motzi shem ra (מ) – Defamation

               Leitzanus (ל) – Scoffing

• Echad b’peh and echad b’lev – Conniver (דברנו דופי)

But after we rule out these and perhaps a few other varieties, we can consider everything else legitimate. Especially things that promote Torah, Halacha and yiras shamayim and things happening in the world that people should be aware of.

When it comes to legitimate speech, I don’t believe anyone should be silenced. If someone is a victim of a traumatic experience or of a known confirmed offender and wants to talk about themselves for the benefit of others (and not for the detriment of others), I don’t think they should be silenced. Also, if someone wants to preach the Word of G-d, I don’t think he should be silenced, either.

So, on the face of things, it may seem that the Sapper sisters and other victims are justified to complain about being silenced. Except for one thing that I noticed from many people who claim to be victims of sexual offenses. 

They only complain when they are being silenced.

They don’t seem to complain when the people they are accusing are being silenced. Or when those who speak up for them are being silenced. But it’s not just that. 

Often enough, they do everything in their power to ensure that the “other” people are being silenced. It doesn’t seem to bother them then. It’s okay to silence the opposition. The “other” people are criminals and supporters of criminals, anyway. We’re the good guys.

We all know, this is the new freedom of speech in the western world. If you are liberal, “PC”, atheist, gay, black, and/or a “victim”, you are entitled to extended (free) prime time in the media and on the campuses. If you are conservative, traditional, religious, straight, and/or “under indictment”, there’s no time left on the program.

This was the subject of my very first “preamble” post on the Malka Leifer episode. It was titled Midas HaDin and focused on how accused people cannot be heard over the “din” of the accusers. I repeated it again in the post about Victim Turned Predator. 

Of course, for my trouble, there was a drive to silence me. Firstly, there was the attempt by a group of liberal rabbis in Australia that call themselves RCANZ to disparage me. Not through debate, but blanket discreditation. I wrote about this HERE. 

About the same time, the Jewish Community Watch team – Meyer Seewald and Shana Aaronson – posted a malicious, defamatory article against me on their site. It can still be accessed, but I do not want to link to it. Their closing line was:

Our only goal is very clear- that he (Hirshman) cease all public writing that directly targets victims, and that he be removed from the platform with which to preach his dangerous and damaging beliefs.

They don’t acknowledge that the “victims” they refer to are currently playing the role of accusers. Also, they don’t bother to explain why the “beliefs” that I “preach” – i.e., the Halachic prohibitions of extradition and mesira as well as my contention that these girls should terminate their prosecution campaign for their own wellbeing – are “dangerous” and “damaging”.

Incidentally, the “Comments” button on this article has been disabled.

It goes without saying that my comments, which almost always consist of a link to a relevant blog post and nothing more, are not welcome on the Facebook pages of Dassi Erlich and Shana Aaronson. No question, they are perfectly entitled to block the links – it’s their FB pages, after all – but the pages are meant for the public and censoring out dissenting opinions, as opposed to allowing them and rebutting them, is still censorship. Also, it's a display of spinelessness.

In thirteen years, I have never disallowed or deleted a comment that anybody posted on my blog site unless it fell into one of the categories of illegitimate speech listed above.

I have noticed that I may not be the only person who is censored from Dassi Erlich’s Facebook page. Back in December 2019, Dassi posted a muse about how her blood pressure is affected by this roller coaster ride. As expected, all the well-wishers were wishing her well. But there was one commenter named Andrew Adams who felt that Dassi and her sisters really ought to rethink where all this is getting them. In the first of his three comments he wrote:

It's good that you don't know who I am. I can see that all three of you are unable to see what danger you are doing to your own lives by making this Leifer part of your lives and allowing her to take over your minds.

He does not seem to be hostile to their cause and he seems to be genuinely concerned for their welfare. Believe it or not, I also want what is best for them so I agree with him completely on this – but I have no voice. Amazingly, just as I would have been if they were my comments, Mr. Adams was summarily attacked by other commenters as well as by Dassi herself for daring to suggest that it is a good idea to stop this insanity.

Next time I looked, his three comments were gone. Did he remove them? 

All told, silencing people is a very popular pastime in today’s world…as long as it’s the “other” guy who is silenced. For those who make a hobby out of censoring other people for legitimate speech, it is very difficult to sympathize when they find themselves on the receiving end. What goes around, comes around.

התקוששו וקושו – קשוט עצמך ואחר כך קשוט אחרים. (בבא בתרא ס:)

Adorn yourself and, only then, adorn others!