Makor Rishon – The controversy over prenuptial agreements: Mending the world or pushing for divorce?

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The controversy over prenuptial agreements: Mending the world or pushing for divorce?

Is it “an incentive to break up families,” as the opponents claim, or a crucial document that prevents get refusal and extortion during the divorce process? While the heated debate over prenuptial agreements is based on halakhic arguments, they mask political and public issues

By Yehuda Yifrah | 10 October, 2021

In addition to the distribution of a snarky animated video, at the center of which is the claim that it’s harder today to fire an employee than break up a family, the campaign the ultra-conservative Chotam organization produced against prenuptial agreements also includes short clips featuring some well-known rabbis. “I’ve been shown many types of agreements. When you see them, you realize that they’re pushing people to get divorced,” warns Rav Shmuel Eliyahu in one of them. “While it’s true that there are a few individuals who refuse to divorce their wives, they don’t represent even a tenth of a percent, and we shouldn’t encourage everyone to get divorced because of that.”

The prenuptial agreement is in fact an economic contract between a husband and wife that imposes the payment of increased alimony on the party that refuses the other’s request for a divorce, with an eye to creating a negative incentive for refusal. The amount of the fine is a predetermined sum or half of the average income earned in the past months by the party that refuses the divorce request (whichever is higher). The logic is simple: A reasonable person forced to part with half their income will not drag their feet or delay the granting or acceptance of a divorce.

The agreements that exist today are in fact a modern adaptation of a halakhic startup conceived as early as 1912 by the Fifth Rabbinical Council of Moroccan Rabbis, and there are two common versions. The first, the Agreement for Mutual Respect, was drafted over 20 years ago by Rav Elyashiv Knohl, Rav David Ben-Zazon and Rabbinical Court Advocate Dr. Rachel Levmore. The second, from 2015, is the “Agreement from Love” of the rabbis of Tzohar, which is based on the same halakhic principles but with certain changes. There is also the “Agreement for a Just and Fair Marriage” from the Center for Women’s Justice, which did not even try to comply with the accepted halakhic approaches.

Whereas Chotam describes these agreements as encouraging the breakup of families, Yad La’isha, the Ohr Torah Stone Legal Aid Center for Agunot which responded to the campaign, stated, “The purpose of the agreements to prevent get refusal is to ensure that the couple do not hold onto each other by force in a situation where it is obvious that the marriage is dead. This is not about encouraging divorce, it’s about saving families.”

The problem of Asmakhta and its solution

The controversy surrounding the prenups has been going on for many years, and its recent re-ignition offers an opportunity to expand on the subject and gain a deeper understanding of what it’s all about. As will be shown below, the argument is held in two main spheres: The first is halakhic, whereas the second is political-philosophical and is related to considerations of public policy. We will begin with a brief halakhic review.

In halakhic terms, the prenup raises two main issues: Asmakhta and the fear of a Get Meuseh – a coerced divorce. The status of Asmakhta – a commitment that is depended on the fulfillment of a particular condition (if such and such occurs, I will give you a certain sum of money) – is discussed in a number of places in the Talmud. The assumption is that there was no genuine intent or gemirut daat – a concrete expression of intention – because the individual was convinced that the future situation would be different and that he would not be required to go through with the agreement. The term Asmakhta refers to the fact that the person making the commitment relied in his mind on a particular situation that ultimately would not come to fruition. The Talmud contains a dispute over whether a commitment of this kind is valid, thus creating a maaseh kinyan – an act of acquisition. The Talmud ultimately rules that Asmakhta does not constitute acquisition.

How is this related to the prenup agreements? The argument is that if a man or woman had known that the agreement that they signed when they were in love before the wedding would indeed eventually be executed – and that one day they would find themselves in massive debt due to an acrimonious divorce – they wouldn’t have signed it.

However, according to some commentators, there is no problem of Asmakhta when the condition is dependent on the actions of the person making the commitment or when the commitment is not excessive to the extreme in view of the circumstances, which is why there is no analogy between a gambling debt – which according to some of the halakhic authorities also falls under the heading of Asmakhta – and get refusal.

Unlike a gambler, who depends on luck, the recalcitrant husband who refuses to give his wife a get, always has the option of granting the divorce and being freed from having to pay the fine. Since he has control over the process, it cannot be said that he did not have gemirut daat to make the commitment. However, not all the halakhic authorities agree with this distinction.

How can the problem of Asmakhta be solved? Rav Yosef Karo (1488–1575) writes in the Shulhan Arukh that if the Asmakhta acquisition is done “from now on,” and in the document it says that it was “performed before an important tribunal” (even if in actual fact it was not signed in front of a Beit Din) – the commitment is valid.

It was on this basis that the Shtar Hakhmei S’farad was created. This is a document authored by the sages of Spain who sought to anchor the commitment of men to marry their fiancées.

This is how it works: During the engagement ceremony, the prospective groom signs a legal document in which he pledges to pay the bride a large sum of money. At the same time, the woman “forgives” the debt as long as the groom does not renege on his promise to marry her. This is not an Asmakhta since it does not involve a speculative future commitment, but rather a commitment that goes into effect immediately.

Prenup agreements make use of the same legal mechanism. Each party undertakes to pay the other party a large amount of alimony immediately, and the other side “forgives” the debt as long as they are living together in peace and harmony, and neither side has made a claim for divorce.

The question of coercion

The second halakhic challenge is Ones Mamon – financial coercion. Unlike Maimonides’s approach that allows coercion to be used to force a husband to grant a get even on the grounds of ma’is alay – he disgusts me – the Ashkenazi ruling, based on the school of Rabbeinu Tam (1100-1171), significantly narrows the cases in which the Beit Din will coerce a get, and takes the general view that a “coerced get” is invalid.

The coercion noted in the Talmud generally involves physical punishment and the Rishonim – leading halakhic authorities in the 11th to 15th centuries, before the writing of the Shulhan Arukh – were divided on the question of whether a stiff fine (“financial coercion”) should also be considered coercion. Although they ruled that financial coercion is indeed coercion, it still left the question open: What is the law in a case when a person is not subjected to external financial coercion, but rather “coerced himself,” i.e., he himself undertook to pay a high sum should certain conditions be met.

According to most approaches (Rav Shimon ben Tzemach Duran [Tashbatz] 1361–1444, Rav Yoseph Colon Trabotto [Maharik] 15th century, Rav Yosef Karo), there is no problem of a coerced divorce if the person imposes the financial debt on himself, as in the case of a prenup.

Opposing this impressive battery is a single opposing view: the Rashba – Rav Shlomo ibn Aderet (1235־1310). He determined that self-coercion of a debt also invalidates the get.

The problem is that this position is noted as an option in the gloss containing halakhic comments to the Shulchan Aruch added by the Ashkenazi halakhic decisor Rav Moshe Isserles, known by the acronym Rema: “There are those who are stringent even in cases like this, and it is advisable to do so from the outset and exempt him from the fine.”

Since the Ashkenazi ruling approach is dominant in Israel’s rabbinical court system, Dayan Rav Shlomo Dichovsky wrote, “In light of the words of the Rashba and the Rema, it is clear that there is no room for any self-imposed financial sanction on the part of the husband, which would force him to give his wife a get, lest it be a coerced get. Consequently, a clause of this nature in divorce agreements is unacceptable and the courts will not arrange a divorce in cases such as these.”

The proponents of the prenup agreements note that the Rema himself ruled that a get that is given in this manner is kosher bediavad – after the fact – and the problem of get refusal turns the entire divorce system into one that justifies after-the-fact solutions.

However, even without this argument, the drafters of the prenup agreements went one step further and in their view, the use of the Shtar Hakhmei S’farad technique noted earlier also resolves the issue of financial coercion, because it disconnects the fine from the granting of the get.

The spouse undertakes to pay a high monthly alimony payment at the time of the marriage, but the other side “forgives” the commitment as long as marital harmony prevails. The agreement does not link the commitment to pay the fine to the get, and consequently does not constitute financial coercion.

In support of their approach, they cite the words of the eminent decisor Rav Yechiel Michel Epstein (1829–1908), who wrote in his magnum opus Arukh HaShulhan that coercing the payment of alimony or the amount that appears in the Ketubah – marriage contract – does not constitute financial coercion.

That concludes my brief overview of the halakhic issue.

What’s good for the Americans

The concise review above demonstrates that the halakhic hurdles are neither too high nor insurmountable. Why, then, does the Israeli rabbinical court system oppose the prenup agreements almost without exception? The most prominent halakhic decisor who approved the use of agreements of this kind was Rav Shalom Mashash (1909-2003). He based his view on the edict of the Fifth Rabbinical Council of Moroccan Rabbis of 1912 noted above. The edict stipulated that prior to the wedding ceremony, every groom would undertake to pay a high fine in case the couple get divorced in a civil court, subsequent to which the husband delays the granting of a get.

In Rav Mashash’s view, the need to resolve the problem of agunot – “chained” women unable to obtain a get because the husband refuses to give one and has abandoned her– overrides the barrier raised by the Ashkenazi approach, which has its source in the Rashba’s ruling.

“If we try to fulfill the obligations posed by all the authorities in this matter, we will not be able to make head or tail of it in the Beit Midrash,” wrote Rav Mashash in the ruling. “That is why I say that even if there is some stringency or doubt in our view, due to the Rashba’s stringent approach, nevertheless, in the matter of the possibility of there being an aguna, and the possibility or certainty of there being mamzerut [having a child born of a forbidden relationship], this matter should be decided according to the essence of the law, and not in the most stringent fashion, and to consider it as being after the fact.

The Moroccan ruling did not strike root in Israel and Rav Mashash remained virtually alone in his position. Already in the 1980s, a panel of rabbinical judges – which included Dayanim Rav Yitzhak Nissim, Rav Yosef Shalom Elyashiv and Rav Betzalel Zolty, ruled that “A priori, every caution must be taken to prevent a coerced get, and one should refrain from approving a divorce agreement in which the husband undertakes to pay a fine if he decides not to grant the divorce.”

In 2013, Dayanim Gurtler, Shahor and Ashkenazi refused to arrange a get for a case in which the couple had signed a prenup. In an appeal that reached the Great Rabbinical Court in the same year, Dayanim Bo’aron, Hadad and Shahor arranged a get even though the couple had signed a prenup, after the parties reached a compromise in regard to the debts that had accrued due to the agreement. In their ruling, they repeatedly underscored that they had not coerced the husband into granting the divorce.

In an obiter dictum written in 2015 by Dayan Shlomo Shapira, a graduate of Yeshivat Merkaz Harav, he noted that the prenup is in any case pointless because even if a high fine is imposed on the husband, he can always condition the granting of the get on the other side forgiving the debt. In another case, in 2017, Dayanim Lavi, Tam and Malka decided that the couple’s prenup must be abrogated before the get could be arranged.

Moriah Dayan (45) is an attorney and rabbinical court advocate at Yad La’isha: The Monica Dennis Goldberg Legal Aid Center for Agunot, which is part of the Ohr Torah Stone network. She has been working for many years to increase the number of couples signing the prenup agreements. In her view, the reasons for the opposition to the agreements are political rather than halakhic.

“The main opposition on the part of the dayanim arose after the agreement drafted by Tzohar started being used, and it’s no secret that the rabbinical courts greatly dislike Tzohar,” says Dayan. “I gathered all the statements made by senior figures in the rabbinical courts about the prenup agreements and I saw that most were supportive up until 2015, when Tzohar’s prenup came out. Even the then director-general of the rabbinical courts Rav Eli Ben-Dahan and the director of the agunot department Rav Eliyahu Maimon spoke favorably about the prenups.

“The about-face came in 2015 at the conference of rabbinical judges. In the now famous lecture given by Rav Avraham Sherman, he lashed out at the agreements, specifically naming the one drafted by Tzohar.

“But it’s not only the opposition to Tzohar. Everyone realizes that this is a solution that decreases the influence and control of the rabbinical courts. As far as they’re concerned, the very fact that the prenup offers a solution that is external to the system expresses a lack of public confidence in the rabbinical courts’ ability to solve the problem of get refusal. They are right in the sense that the prenup weakens them.”

Even if in terms of halakha it was supposed to be simple, in practice it doesn’t work. The rabbinical courts refuse to accept these agreements. So what’s the point of signing them?

“There are also other voices in the rabbinical courts. Dayan Rav Yair Ben-Menahem gave a lecture at Tel Aviv University in which he noted the ruling handed down by Rav Mashash and the edict of the Rabbinical Council of Moroccan Rabbis, and explicitly acknowledged that there is no substantial halakhic impediment to approving the prenup agreements. In practice, there are panels of dayanim that arrange divorces for couples even when the couples come with the agreements, from Rav Haim Halevy since the 1980s to various rulings handed down in the 1990s.

“It’s important to bear in mind that the largest and most important Orthodox rabbinical organization in the United States, the RCA – which includes more than a thousand rabbis – will not marry a single couple without them first signing a prenup. Their version has been approved by the greatest halakhic authorities in Israel, for example Rav Ovadia Yosef. The head of the organization’s Beit Din, Rav Yona Reiss, said in an interview that their prenup has a 100% success rate and zero cases of refusal.

“The support that the rabbinate gives to prenups signed outside Israel is a very powerful argument. Professor Amihai Radziner, a professor of Jewish law and legal history in the Faculty of Law of Bar-Ilan University, published an article in which he asked a simple question: If the prenup agreement is halakhically invalid, how can it be argued that it’s invalid only in Israel but not abroad? Is divorce one of the commandments that can only be performed in Israel? In the United states, the dayanim don’t have “teeth” and so they have no choice, but here they prefer to hold onto the power they still have.”

The victims of peace

Why do the Sephardic authorities follow the Ashkenazim’s lead? Why don’t they support Rav Mashash’s position?
“There is a clear atmosphere in the rabbinical courts that is very difficult to oppose, but in my opinion, they simply haven’t studied the subject in depth. If they read Rav Ovadia’s ruling, which explicitly endorsed the US rabbis, they wouldn’t speak out so emphatically.

Has Yad La’isha’s prenup stood the test of the rabbinical court?
“I don’t know of any case in which our agreement reached the rabbinical court and was refused. The agreements that were rejected by the rabbinical courts were agreements that were not drafted in accordance with the model of the Shtar Hakhmei S’farad. In fact, thousands of couples have signed the agreements, and as I see it, the main impact of the agreement comes long before the couple actually come to the court. In most cases, its very existence creates deterrence and the parties never end up in court, and instead meet with an arbitrator and try to reach a consensus. They understand that they can’t use the divorce to improve their economic situation and that alone is a triumph of the agreement. It makes the negotiations between the parties fast and effective and in that way prevents get refusal.”

If the dayanim persist in their refusal to accept, what’s the point of signing it?
“I believe that it is the reality that will determine the outcome. Prof. Radziner presented a fascinating example. In the 1960s, the rabbinical courts heard eight times more cases involving the payment of alimony to women that those heard in the regular courts; in the 1980s, that number fell to three times more and in the 1990s, the situation reversed and the majority of claims are now filed in the regular courts. When the movement to the regular courts began, many dayanim rebelled and refused to arrange divorces for women who had filed their alimony claim in a family court. But today, you won’t find a single dayan who refuses to arrange a get for a woman because she filed for alimony in a civil court.

“In view of the prenup agreements, the dayanim are waging a last-ditch battle. They are trying to stand in the breach, are calling on lawyers to refuse clients that want to sign a prenup, but once it becomes a normative reality, they’ll have no choice. They can’t refuse to arrange divorces for thousands of couples.”

Perhaps there’s something to the judges’ claim that as soon as it becomes easy to get divorced, it increases the incentive to get divorced?
“The agreements are worded in such a way so that they are activated only when there’s no feasibility of saving the marriage. From the moment one of the parties sends a notice to the other requesting a divorce, they have to wait for six months and in one of the versions, the other side has the right to invite the other spouse to three professional couples-therapy sessions. If the therapist determines that there is a chance of saving the marriage, the period will be extended by another 90 days, during which time the couple has to attend three more therapy sessions. The agreement only goes into effect after the therapists has determined that the therapy sessions have run their course and that the marriage has no future.

“The combination of the waiting time and the professional efforts to mend the relationship ensures that the agreement will not break up families that could be saved. Regardless of all this, every couple that comes to court today is sent to the assistance unit, which meets with the couple and sends them for counseling to try to salvage the marriage or to divorce mediation. No one is in a hurry to break up families.

“In every discussion, the victims of the current system must also be considered. I had a client with nine children, a very weak woman, who begged for a get on the grounds of ma’us alay. The court pressured her to try to save the marriage. She had difficulty saying no to authority and she returned to her husband for one month during which time she got pregnant with her tenth child. I call these children the “victims of peace.” When the deal fell apart again, she returned to the court and the dayanim gave her a hard time: How can you claim ma’us alay – that your husband disgusts you – if you slept with him and got pregnant again?

“No one gets up in the morning with a new thought and decides to get divorced. It’s always the result of a very long process in which there is a lot of deliberation, a lot of effort and a lot of trying. When someone reaches the conclusion that they want to get divorced, it should be respected.”

No magic bullet

Rav Eliezer Igra (67), a dayan in the Great Rabbinical Court, agrees that the main point in the prenups that have been fine-tuned and polished is not halakhic, but is rather related to public policy. “11,000 couples get divorced each year and the percentage of get refusals is miniscule. Incidentally, the vast majority of the population where we find refusals is in the Haredi sector, for whom the solutions offered by the women’s organizations are irrelevant. After deducting them, we have to also deduct the hard-core refusal cases, where the agreements wouldn’t help either. We have dealt with recalcitrant husbands who are highly educated and well-off financially who were willing to flee abroad and be homeless rather than give their wives a get. A person like that is in an extreme psychological state for whom economic incentives won’t make any difference. That leaves us with a tiny few that don’t justify a sweeping change in policy that could harm many other couples.

“People forget that there are no magic bullets and that every solution comes at a cost. Over the years, all kinds of solutions have been proposed for the problem of get refusal. Rav Yoel Bin-Nun proposed that every groom write a get and deposit it with the Rabbinate. I told him that besides the serious halakhic problems that this would pose, problems that might actually be irresolvable, do you understand what the cost of writing a get is, how many dayanim and scribes would be needed and the massive economic and administrative burden it would impose on the system?” If in a country of ten million people there are a few dozen who die of a particular rare disease, you’re not going to solve their problem using an experimental drug that could harm many others. You have to manage risks.”

What are the risks of a prenup agreement?
“The risk is that real damage could be caused to the situation of women in a divorce,” responds Rav Igra, presenting the other side of the coin. From his experience, he says, a delay in a woman’s agreement to accept the get could in many cases protect her rights and produce fairer divorces. “In 80% of the cases, the couples come with a divorce agreement they both accept and the rabbinical court only has to arrange the get. Let’s talk about the remaining 20% and let’s take a typical example: The husband has found another woman, the wife is burdened with the care of three small children and he demands that their joint property be divided and that their home be sold. Of course, he also demands joint custody in which case she won’t receive alimony in accordance with the new egalitarian concepts. If we act according to the letter of the law and do a full balance of resources, this woman could easily lose everything. At present, that’s not the situation. In the vast majority of these cases, the man does not have a clear cause for a divorce and so the dayanim can require him to make more of an effort to ease matters for his wife and children. They will demand that he leave the wife the home until the children grow up or that he pay her more.

“This flexibility wouldn’t exist if there’s a prenup in the picture. The dayanim will be locked in, the woman will find herself in a state of financial distress and no one will be able to help her. Think about a woman who is burdened with the care of children with special needs. The husband can’t handle them and leaves her to care for them. In a case in which Jewish law does not allow coercing her to receive a get, the dayanim can condition the get on adequate financial compensation. That tool would disappear.

“Under these agreements, the wives cannot claim the amount stipulated in their ketubah in case of divorce, and that weakens their economic bargaining position. When you require the woman to get divorced within a given period of time, there is no real opportunity for negotiations and no possibility of weighting special circumstances such as the situation of the children or the parties’ earning capacity. The benefit of these agreements is negligible and they run counter to the spirit of the Torah ‘that he not take removing her lightly.’

“The women’s organizations are not familiar with the day-to-day of the rabbinical court. As someone who has sat on the court for decades, most of the cases that are delayed do not suffer from a problem of refusal in principle, but rather from financial hardship. The prenup is akin to a vaccine that might save a few lives while killing hundreds. It would prevent the dayanim from examining each case on its own merits and finding a suitable and compassionate solution. Generic agreements only create an illusion of justice.

“The public thinks that civil law has brought a dramatic breakthrough of equality and progress, when in fact the innovations often create the opposite results. Take for example the problem of parental alienation. I maintain that it has greatly increased since the courts decided on joint custody as the default option. Everyone is demanding joint custody today even when in fact the sides don’t have the tools or resources to shoulder this responsibility. The result is incessant account keeping that the children suffer from. Every meal and every purchase at the grocery is recorded and counted. The mother feels that she is carrying the burden alone and her anger at her ex-husband is passed on to the children. Every time the child asks for something from the mother, she sends them to the father, creating constant friction.”

And that doesn’t happen with the model of visitation rights?
“Joint custody means a continuation of life together. Daily life has to be coordinated between the divorced couple at the level of hours, and the division of the burden is a daily affair – who will take the child to the doctor and who will go to the parent-teachers meeting. Some couples are unable emotionally or operatively to do this, thus creating endless coordination and incessant friction. The only ones who benefit are the lawyers who get tons of work. In the world of visitation rights, there are is much less friction because there is less day-to-day contact and the division of responsibility is more clearly defined: One side is in charge of the day-to-day care and the other side bears the financial burden.”

Back to the agreements. If they are so problematic, why do American rabbis insist on them?
“Thank God we don’t live in the Diaspora. In the United States, the rabbinical courts don’t have legal jurisdiction and so the husband can say to the wife: ‘We’re getting a civil divorce and you can go to hell.’ No one can protect her if he decides not to give her a get. The main role of the prenup is to create a commitment to go to an agreed-upon rabbinical court to arrange the get. In Israel, that is rarely needed. The rabbinical courts have legal jurisdiction and the husband can be brought to the Beit Din even against his will with a court order to give his wife a get. Much of the public is unaware of the miracle that is the Chief Rabbinate. Millions of Jews live in Israel and the world; communities don’t necessarily recognize each other’s kashrut certification, but all of them accept the decisions of the rabbinical court on matters of personal status. These are true miracles.

“People complain about the efficiency of our rabbinical court system. But based on the official reports of the rabbinical and civil courts, the rabbinical courts are several times more efficient than the family courts. There’s always room for greater efficiency and improvement and the system is constantly improving, but it’s important to discuss the imbalance between the number of staff positions and the actual needs on the ground. The number of divorces today can’t be compared with the situation in the past. Prof. Bar-Asher told me about a well-known Moroccan dayan who during his 40 years on the bench in the rabbinical court wrote only three writs of divorce. And to that I add that a dayan just starting out writes more writs of divorce in his first year than Rav Akiva Eger wrote in his whole life. Most of the criticism of the rabbinical court system is not genuine. It stems from an agenda that seeks to undermine the institution of Jewish marriage.

A struggle between different philosophies

A further perspective is offered by Prof. Shahar Lifshitz (51), a faculty member of the law school at Bar-Ilan University. “It’s an elusive issue,” he says. “When the opposition is coming from the ultra-conservative Chotam organization, it’s easy for liberals to take the direction of sweeping support for the agreements. But in my opinion, there is a dilemma here that warrants an in-depth discussion. If we take the classic case of agunot, for example the wives of the crew of the Dakar submarine lost at sea, there’s no disagreement among the halakhic authorities in terms of worldview or approach. Everyone understands that this is a human tragedy that needs to be resolved and the disagreements will be tactical, about how far a rabbi can go in order to resolve the tragedy. Even those who disagreed with Rav Goren’s willingness to go very far for the sake of the Dakar chained wives did not take exception with the ethos that releasing agunot is a very great mitzvah. The disagreements to the extent that they exist are limited to the technique.”

And in your opinion, is it wrong to infer from agunot to get refusal?
It’s an error on the part of liberal academics. People like Brachyahu Lifshitz propose that the rabbis use techniques such as annulment of marriage and ignore the far greater public question of how to balance the preservation of the importance of the institution of marriage as a stable institution that emphasizes the values of the family unit, while at the same time enabling those who want to get out not to be trapped in a marriage when it is unsalvageable. If the stability of marriage is a value, one can’t simply reject the halakhic direction that has taken root since Rabbenu Gershom, who determined that both sides must agree to the divorce. The requirement for mutual agreement is intended to increase the equality between the husband and wife by toughening the conditions for divorce.

His position was accepted as law, as opposed to that of Maimonides, who espoused an opposite strategy, that is to increase the cases in which a get can be coerced thus making it easier for both sides to get out of the marriage.
“This is a fundamental struggle between two philosophies. Rav Haim Palachi (1788–1868) suggests a third option. He determined a period of time of 18 months from the moment one of the parties requests a divorce, when an opportunity is given to reconcile the marriage. Only when it is realized that there is no chance of reconciliation does the Beit Din intervene and lead to the granting of a divorce.”

The timetables in the current prenups on the market are much shorter.
“Rav Elyashiv Knohl came to consult with me and his first prenup version said that the fine mechanism would be activated after three months. I told him that even in the most liberal countries in the world nobody gets divorced within three months. People don’t have time to breathe and think deeply in such a short period of time. I regret that the liberal organizations don’t place this consideration on the table and leave it to the conservatives.

“In my opinion, it should be the liberals, who are committed to equality, who need to consider whether we really want to adopt the Western approach whereby the breakup of a family is a natural and intuitive matter, and that there’s no point in trying to strengthen the marital commitment. It’s tempting to say that Chotam are primitive and should be ignored, but as I see it, there is value in showing gratitude to someone who has been with you for a significant amount of time, at least on the level of giving a chance to couple therapy, and if that doesn’t work, only then to let go. To me, the halakhic debate over the documents is a smokescreen for the real issue, and it’s time to stop talking about the technique and to start talking about the issue itself.”

Read OTS President and Rosh HaYeshiva Rabbi Kenneth Brander’s Letter to the Editor regarding this article

Read this article (in Hebrew) on the Makor Rishon website

 

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