Wednesday, April 01, 2015

Pre-Nup Is Not the Answer, Saving Marriage Is

By Yomin Postelnik

The sum total of all of the recent discussions about gittin from a halachic and moral standpoint is that while everyone should strive to alleviate suffering and seek to resolve marriage disputes so that both can move on peacefully, we must first do everything possible to save the marriage.

Gittin are a hard process halachically, largely in order to minimize their number.  Civil jurisdictions that have a one year waiting period before divorce (a concept that originates with Maimonides), such as Canada, have seen 60% of petitions withdrawn.

Such precautions are not only clear Shulchan Aruch (Even HaEzer 119), they are also fundamental to Judaism.  Saving a marriage was the key mission of Aharon HaKohen and it is the responsibility of all to try to save as many marriages as possible.  The continuation of the Jewish people depends on it.  The affects of divorce on children (exponentially higher rates of truancy, substance abuse, delinquency, suicide and other factors, G-d forbid), make saving a marriage akin to saving a life.

Marriage is not seen merely as a relationship.  It is both the building block of the family and of raising children.  It is a responsibility far more than it is a matter of love, although that aspect is also important.  It must be protected, even in spirit, and Shulchan Aruch mandates that people help save and repair a stumbling one and to look for ways to do so, first and foremost.  By contrast, anything that threatens its spirit is harmful.

There are other important considerations as well, such as parental alienation and from a halachic standpoint, the exact wording of a Beis Din’s advice, since what they can and cannot say to a divorcing couple have intricate laws.  If a mistake is made, the divorce can be invalid, just as one wrong word in the get may make it equally null and void.

The Lubavitcher Rebbe’s words on precisely this subject are noteworthy. In Tammuz 5727 (summer 1967), the Rebbe wrote a letter in favor of sane, rational solutions within halacha (the framework of Jewish religious law) favoring saving agunos (the definition of “aguna” then was clear and is misunderstood today, as will be explored below).  Going one step further in Likutei Sichos Vol. 4, the Rebbe brings the Rambam, the Chelkas Mechokeik and others about not divorcing one's first wife quickly, even in the worst of scenarios. Mainly, the Rebbe strongly cautioned against crossing the line of changing halacha.  This is not only because interference in such cases would be wrong (against Hashem’s will) and therefore harmful, as we see clearly today but because going too far in this matter tears at the fabric of the Jewish family.

Of course, as a practical matter, one should not stay in a prolonged standstill, but defined steps to prevent divorce are an obligation.  Also, a non-obligatory divorce can only be suggested. Ordering one or attaching a monetary fine to it can invalidate it (to the same extent as a textual mistake in the document renders it void).

The Pre-Nup

Aside from the spiritual problem of mentioning a divorce document prior to marriage, which is a concern and serves to dampen the importance and strength of the commitment, the RCA/Tzohar pre-nup has profound halachic and even potential legal problems.

The post-nup is even more problematic and if pressured socially, falls into the category outlined in Targum Yerushalmi (mistakenly called Targum Yonason), Deutoronomy 24:6 of one who interferes in a marriage and therefore loses their portion in the World to Come, G-d forbid.  Fomenting worry and talk of divorce are extremely harmful.

The main problems with the pre-nup are:

a) There is no provision for counseling or attempts at reconciliation.  Almost all civil jurisdiction have such provisions, which can be requested by either party.  Torah marriage is more serious and greater commitment than secular marriage, not a lesser one.  With today’s plague of divorces, anyone wanting to find solutions to Torah family problems would not exclude such a provision.

b) Far more serious, the usurpation of a local Bais Din and its replacement with the Beth Din of America or of Tzohar has the ability to render the get produced from such an agreement invalid.

A local Bais Din is best positioned to advise on marriage matters.  A get is specifically supposed to be handled locally for this reason.  But that is only part of the problem in designating the YU/RCA’s Beth Din of America, an organization whose attempted usurpation of local Batei Din has already been the subject of numerous legal complaints.

Stating that one is obligated to give a get when doing so is merely advisable, is not only far less effective than the persuasive language that is recommended when a marriage cannot be saved, but makes the get a “get mutah” (given based on incorrect halachic information, and therefore invalid).  The Beth Din of America has a history of running roughshod over these clearly stated halachic laws, the result being “gittin” that aren’t worth the paper they are printed on.  This is obviously not my own opinion, but the written opinion of Rav Chaim Kanievsky, Rabbi Sariel Rosenberg, Rabbi Yechezkel Pales and others.

The RCA has also engaged in mass impropriety, some of it documented by the American Beth Din project.  One of the leaders of the “Beth Din” has two open seruvim against him from a Monsey Bais Din.  Having represented someone in a momenus (monetary) case in 2008 in front of that body, I have evidence of impropriety with regard to financial decisions as well, and although the “dayan” in that case was the now discredited Michael Broyde (founder of the Beth Din of America), the litigant’s rights were also usurped by Mordechai Willig, their senior “dayan” whose actions in several other cases were also found to be beyond the pale.  Documentation is available upon request.  Barry Freundel was also a high ranking member of this body.

In short, the body is recognized as an embarrassing Modern Orthodox farce among the entire yeshiva world.  From a purely legal standpoint, it should take a good lawyer all of two seconds of pouring through the American Beth Din Project’s research to invalidate any prenup listing the Beth Din of America, based on fraud and gross misrepresentation.

Simply substituting another, more reputable Beis Din, makes the prenup somewhat less halachically problematic and also less open to legal challenge based on fraudulent misrepresentation.

It should also be noted that David Stav of Tzohar ran for Chief Rabbi of the Rabbanut with a promise to force local rabbonim to bend, not to Hashem's will, but to his own. Jewish history has seen that those who have sought to counter established halacha have failed, yet have often caused much destruction before doing so. There can be nothing more un-Jewish than promoting a “pre-nup” that takes no steps to save the marriage and that opens the door for instant divorces in a way that even most secular societies recognize is wrong, a point that researcher Menachem Lowy has painstakingly pointed out in this regard.

  1. The halachic logic behind the prenup is faulty.

Reb Moshe Feinstein ruled that one may coerce a get if all that the person wants is ill-gotten money, because such coercion does not seek to force a get but to cause him to forego the money (this does not apply to a case in which he is asking for a settlement al pi din).  However, all agree that money may not be exacted as a punitive measure if the husband does not want to divorce, except in those rare cases (extreme violence, etc.) outlined in Shulchan Aruch, Even HaEzer 154. The sum of $150 a day mandated upkeep for the wife is only warranted in those defined and limited cases.  In most cases, the fine renders the get “meusa” (forced and therefore invalid).

Rav Chaim Kanievsky has already written that one who gives a get based on such agreements must give a second get.  To have a “solution” that will cause questionable divorces isn’t proper.  A person who is divorced with a prenup will not find that get accepted by the Yeshiva world and any kids from a second union would, G-d forbid, be viewed with suspicion.  You can argue as to the merits of this, but since Rav Kanievsky’s ruling, along with others, it is a fact that this would happen (and is pretty clear from Shulchan Aruch, with solid reasoning).  This is especially not worth doing if when another solution exists, such as the detailed involvement of local rabbonim.

Get refusal in any meaningful sense is rare.  The recent use of the term placed on anyone who refuses to give a get without a set number of counseling sessions or until the settlement of all marital issues (without which any get, which must be a “sefer krisus,” is highly questionable to begin with) is not only ridiculous, but immoral.

Marriage is serious and divorce is a lifetime of pain with devastating consequences to children.  The Torah, in its wisdom, allows both sides the ability to try to prevent this, within reason.  The prenup and destructive YU theology disagree, but this is Hashem’s Wisdom, not to be usurped by self-styled leaders who cannot answer basic questions of morality.

A Possible Solution

One “bedieved” (not preferred, but possibly halachically acceptable) solution might be to have an agreement that upon separation, may Hashem save everyone from such things, both parties agree to go to a proper Beis Din with jurisdiction in their area for all matters, to handle the entire divorce process.  This would also avoid costly lawyers who seek to promote strife for their own gain. 

A number of the standstills in gittin stem from insane “orders of protection,” not taken out for any safety reasons, but as a one-up on custody or assets.  This is a violation of Torah law and divorce proceedings must take place in a Bais Din.   The consequences of not doing so are outlined in Choshen Mishpat 26.  This is not only the Torah right of each litigant, but also saves each much heartache and money in the process, not to mention how it facilitates dialogue and resolution, absent cases of real danger. (This does not negate protection in cases of clear and verifiable danger, but any divorce lawyer will tell you that such methods are rarely used for that legitimate purpose.)

As touched on above, the definition of aguna is also important.  While it was the obligation to find any leniency to permit a war widow or someone whose husband had disappeared and to pressure a husband who would not care for the wife in extreme ways, it is also an obligation to seek to repair even other marriage, as outlined clearly in Even HaEzer 77 and 119.  Doing so also facilitates a get even if all else fails by giving the rov or community leader who properly and tirelessly tried to save the marriage as is mandated, great influence with both parties, and would end the standstill in almost all cases. More importantly, it will lead to thousands of marriages being repaired and reinforced, which is absolutely key to a continued strong and vibrant Jewish people.