Do Prenuptial Agreements Encourage Divorce? On the Contrary
Divorce in Israel requires the agreement of both parties, setting a convenient stage for extreme extortion. Inevitably, many in this situation prefer to pay or meet the other party’s demands in order to free themselves from the marriage ties imprisoning them in an untenable situation
By Moriah Dayan | 27 July 2021
Does the wearing of seatbelts encourage traffic accidents? Does taking out health insurance foster disease? Does signing a prenuptial agreement to prevent get-extortion encourage divorce? If you ask the rabbis who came out yesterday against prenuptial agreements, the answer is yes. How so?
In their view, when they see such agreements they understand that they “are driving people towards divorce.” But when I see these agreements, I understand otherwise. I understand that the agreement drives couples to treat each other with respect once the question of divorce has already been determined, and after it is clear that this marriage has lost all meaning. This agreement can prevent families from losing their way, and from additional destruction – after it is clear that the home itself has been destroyed.
How can this be so, and not the way the rabbis see it? First of all, let us briefly explain the agreement. Its goal is to prevent situations in which there is a long term separation between the parties, yet, although it is clear that the relationship is beyond repair, one of the parties prevents the divorce with extortionate claims or demands. How is such a situation even possible? Divorce in Israel is conducted according to halacha, and halacha states that in order to sever the ties of matrimony it is necessary for both sides to agree (except in extreme situations in which the reason for divorce justifies severing the relationship despite the objection of one party). This situation sets a convenient stage for extortion as the party who is less interested in divorce takes advantage of the need for their agreement in order to blackmail the party who is more interested in divorce, even when there is no doubt in anyone’s mind that this marriage has ended.
As a result, there are hundreds of couples in Israel who live apart and are completely disconnected from each other, yet their ID cards still list them as married to each other. They are (halakhically) prevented from creating a new relationship, and (civilly) prevented from marrying others. It is quite likely that many in this situation choose to pay or meet the exorbitant demands of the other party, if only to release themselves from the ties that imprison them in such an untenable situation.
Prenuptial agreements were designed to prevent this, stating that in the event that it has become clear that there is no longer a chance of repairing the marriage, the relationship should be ended in a respectful and efficient manner. In the event it isn’t – the delaying party will pay the other party high amounts of alimony. This would mean that extortion in exchange for a get would not pay, and the party that strives to delay the divorce (and once again it must be emphasized, only after it is clear that this marriage is no longer viable) will think twice, otherwise they will have to pay dearly for it.
The agreement has two safeguarding mechanisms intended to guarantee that the agreement will not be actualized unless it is clear that divorce is the only option. The first safeguard is a waiting period (the length of which is determined in the agreement) which begins the moment one party informs the other of their wish to divorce. During this period the agreement cannot be actualized. The second safeguard is an attempt to repair the marriage with professional help during the waiting period. These two safeguards guarantee that this is not a whim or an encouragement to divorce, but on the contrary – after it is clear to everyone that the divorce is a fact, the agreement ascertains that the divorce cannot be delayed without justification. In this way the agreement saves couples from themselves, encouraging them to treat each other with respect and responsibility.
Many rabbis have approved these agreements. They were formulated after consultations with the greatest dayanim (religious judges), foremost among them the Gaon Rabbi Zalman Nechemia Goldberg ztz”l who approved the halakhic validity of the Agreement for Mutual Respect.
It is also evident that the agreement has garnered much support in the USA, not only among RCA rabbis (RCA rabbis will not marry couples who do not sign the agreement), and also among prominent rabbis and dayanim in Israel. In light of this, it is clear that the agreement does not encourage divorce but fosters mutual respect and responsibility, aiming to prevent a situation in which someone will try to artificially resuscitate a dead marriage by violent means. This is a worthy goal not only in the USA but also in Israel.
Experience shows that these agreements are highly effective, especially when it comes to preventing conflict escalation. Couples who have signed agreements of this type conduct divorce proceedings respectfully and pragmatically, without extortion or unjustified delays.
So, if you buckle your seatbelt without fear that you are encouraging traffic accidents, and if you purchase health insurance without being concerned that you are promoting disease – I recommend you also sign a halakhic prenuptial agreement without fear that you are encouraging divorce.
Moriah Dayan is a rabbinical court advocate, a lawyer and a mediator who works at Ohr Torah Stone’s Yad La’isha: The Monica Dennis Goldberg Legal Aid Center on behalf of agunot and women being denied a get.