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Be-chasdei Ha-Kadosh Barukh Hu, Yishtabach Shemo
Shalom Aleikhem Ha-Rav Ha-Ga'on Rabbi Daniel Eidensohn, shlit"a, Yevarekh Ha-Shem Cheilo, ve-Yezakenu be-Me'or Torato,
I would like to thank the Rav for the marvelous insights on hilkhot gittin that the Rav has publicized over the past few years, insights that have raised the level of Torah appreciation and harmony within Klal Yisrael, thus constituting a sparkling Kiddush Ha-Shem. The merit of the public will stand to the eternal credit of the Rav.
I have recently completed (Barukh Ha-Shem) a prenuptial agreement proposal which I believe is valid according to the consensus of poskim, and which can potentially avert all future agunah situations for ladies who are not yet married. [I cannot help the ladies who are already married; they are trapped, as the Retzono shel Makom (Yishtabach Shemo) demands, and as explained by the Rav's brother Ha-Rav Ha-Ga'on R. Dovid Eidensohn, shlit"a, at http://www.scribd.com/doc/202377527/Rabbi-Safran-Broken-Marriage-Must-Divorce-rebuttal ) Since the words of the Rav's brother were inspiration in the composition of my essay, I credit him (among others) on the final page of my essay, and I am presently sending the link of my essay to the Rav for him to enjoy:
Without even necessitating to read this new prenup, the fact that it was composed clearly demonstrates the acceptance that the current RCA-prenup is halachicly problematic. This fact is not new as no less than Rav S.Y. Elyashev (among many others) ruled that the RCA-type prenup is halachicly unacceptable and its use in procuring a "Get" causes it to be a "Get Me'usa", an invalid Get that if used to remarry will result in future children being mamzeirim.
ReplyDeleteThat being said, the points causing Rav Elyashev and others to deem the RCA-type prenup illegal under Jewish Law needs to be considered in context of this new proposal. It is a tall order to overcome, if even at all possible.
The issue that needs to be understood is that not every time a wife demands a divorce is she entitled to one or should the husband be expected give her one should he legitimately desire their marriage to continue. This point is quite explicit in Halacha as defined in Shulchan Aruch and the related poskim.
ReplyDeleteAny proposed prenuptial agreement must account for this very important and pertinent point. The prenup should not expect or presume that in any situation that the wife wishes a Get that she ultimately is entitled to it or that she should be able to receive it over her husband's wishes.
1) How should a moredes be treated as required by halakha as specified by the Mechaber in S"A and by the Rema... and how can we, perhaps with the prenup, enforce the halakhicly prescribed treatment of a moredes?
ReplyDelete2) The 1992 New York Get Law is certainly against halakha and renders a Get invalid. But so is New York's later Get Law just as halakhicly invalid.
It is an error to think that the contemporary situation regarding issuing a Get when one is requested is an "emergency" or widely problematic than any other time in the 2,000 year Jewish history since the Roman exile. While it certainly is true that there are a relatively small number of modern cases of recalcitrant husbands who refuse to give their wife a Get when they are obligated to do so under Jewish law, the fact remains that in most of the Get demands the husband does not have an obligation to give one and thus the wife is not considered to be an "aguna" even though she has demanded a Get and did not receive one. Judaism does not support or have a law insisting on "Get-on-demand".
ReplyDeleteTherefore, at this time it is no more necessary or critical to institute a "halachic prenuptial" that attempts to facilitate a divorce where one of the parties seek to not divorce (with the other spouse seeking a divorce.) And considering that at no time previously in our long exile have the great rabbinic leaders of Judaism instituted such a wild idea, it is improper to do so in our day and age.
Indeed there is no need for any newly formulated prenuptial. We already have the Kesuba, and that is the one and only prenuptial that should exist. It wasn't needed previously and it isn't needed today. The Gedolei HaDor have not called for the institution of a prenuptial and nor should we, especially not without the Gedolim indicating there is a need for it. And indeed there is no need for it. Which is also why the Gedolim of all the previous generations have never instituted such a thing.
DeleteKeep going with the prenups and social engineering, all according to halacha of course. It won't be long before no Orthodox man will marry. Marriage could then become a mes mitzvah, just like it is becoming in the secular western world. I am not exaggerating. We have not even begun to see a 'shidduch crisis'.
ReplyDeleteI would like to contribute a few important points to this vital discussion:
ReplyDeletea. Shalom Bayit - if even one spouse seeks or demands "Shalom Bayit" rather than divorce, it is incumbent under relevant halakha for beit din to insist that Shalom Bayit be reach rather than a divorce be issued. Either spouse has the unilateral right under halakha to insist for Shalom Bayit and avoid divorce.
Of course this point is barring the unusual and rather specific circumstances where a spouse has the halakhic right to demand a divorce even against the spouse's wishes, where the other spouse does not wish to be divorced. An example of that would be where there is physical violence that the violent spouse was warned by beit din to stop and he failed to heed beit din's warning to stop being violent. In such a case halakha allows a divorce against his will. But it must be noted these types of cases (where it can be demanded against his will) are unusual and must fall within the parameters specified in Shlkhan Arukh that allows for a divorce to be achieved against his will. And it should be further noted that Shulkhan Arukh says that even in a case of violence the beit din must give the husband several warnings to stop and verify that he persists in his violence despite those warnings before the beit din is halakhicly permitted to force him to divorce. Considering how difficult this is even in a case of physical violence, all the more so we can understand how infrequent are the circumstances where beit din has the halakhic right to force a husband to divorce if he does not want to do so.
b. Cherem Rabbeinu Gershom - One of the provisions of CRG is that wife is prohibited against unilaterally divorcing his wife against her will. That is, if the wife does not wish to be divorced, the husband cannot divorce her and the marriage must continue. This right granted to (Ashkenazic) wives by Rabbeinu Gershom is a right that husbands had all along according to Torah Law. That is, Biblical law permits a husband to choose to not divorce his wife (even if she requests one) if he desires to remain married to her. R"G granted this same right to wives based on his Rabbinic Edict (Cherem).
Considering this point, it is clear that under Jewish law both parties must agree to a divorce in order for it to be facilitated. It is the unilateral right of either party to the marriage to insist the marriage continue against their spouse's desires.
This fact is clear by the fact that R"G specifically and unambiguously gave this right to wives and by the fact that husbands had this right all along per Biblical law.
Considering this point, it is necessary for us to continue honoring the CRG where a wife cannot be forced to accept a divorce from her husband even if he wants to divorce her against her will. R"G gave her this right. And similarly, the husband has this same right, albeit he has had it all along under the stronger provisions of Torah Law itself. We should not seek to overturn the CRG or the equivalent Torah Law with the use of a prenup. Rabbeinu Gershom, in his wisdom which is far far greater than any of ours, determined this right must exist.
AAA - You make a strong point. Rabbeinu Gershom said wives cannot be forcibly divorced against her will.
DeleteWill we now allow husbands to be forcibly divorced against his will (which the Torah prohibits) while we still honor Rabbeinu Gershom's rule preventing wives from being forcibly divorced (which is only a rabbinical rule)?
Correct. R' Gershom made clear that either spouse can veto the other spouse's desire for a GET. We should not change this point instituted by R' Gershom.
DeleteWhy are some people (who are not even the gedolim) trying to undo R' Gershom's cherem?
If we're going to repeal Rabbeinu Gershom's cherem against divorcing a wife against her will (as the entire premise of the prenups is to allow one spouse to be able to divorce the other even if the other doesn't want to divorce) we may as well at the same time repeal the other part of Rabbeinu Gershom's cherem againt polygamy - and start allowing multiple wives.
DeleteExcellent point. In fact the Vilna Gaon wanted to repeal the Cherem Rabbeinu Gershom against marrying more than one wife. So, perhaps, we could do this as a package deal. Once we're repealing one part of the cherem we can repeal the cherem against taking a second (or third) wife.
DeleteThe author writes in his conclusion:
ReplyDelete"The righteous ladies of Israel deserve to be awarded this combination of prenuptial agreements in future marriages, for they are the true heroes of Jewish history and Jewish destiny. 'Tzad’kah mimeni' (Genesis 38:26) – she (the lady) is more righteous than me (the gentleman) – is the ethical and moral clarion call of our holy Torah."
Reeeelly?
Who IS this guy. Who is he to extrapolate from the Yehuda-Tamar case onto klal Yisroel? What in the world is this "they deserve" ethic?
Methinks this guy a wolf-feminist in sheep-scholarship clothing.
Mah Nishtana? Rabbi Bleich developed a prenuptial years ago and it was not adopted by the poskim. Now there is a new one reviewed by Rabbi Bleich?
ReplyDeleteben dov
1honestlyfrum.blogspot.com
The fact is that no BD has an enforcing arm. That said, all prenumps have one of the same problems which R' Henkin ZTL stated regarding JTS' ammendment to the Kesubah. Namely, that it requires the enforcement of secular courts. That said, it falls out of the category of koifen osso ad sheyomar rotze ani, and it would be a get meusah.
ReplyDelete@EML - I believe you're correct. US courts cannot act as the agent of a Bais Din according to the constitution, ie "separation of church and state". US courts can only enforce neutral arbitration law. Therefore it would appear that enforcement of Gittin matters by Bais Din must by definition be get meusah.
DeleteThe non-Jewish writers of the US Constitution served the interests of the Torah much more than the feminist politician rabbis we have today who attempt to subvert the US Constitution in pursuit of their feminist agenda.
I don't believe that either of you are correct on either halakha or secular law.
DeleteIf a beis din were to rule that the husband is obligated to grant a get, then enforcement by a secular court would be permitted under the concept of aseh mah she yisroel omrim lach.
From a secular POV, a beis din is nothing more than an arbitration board. Arbitration is highly favored, and I see no Constitutional impediment to enforcing an order of a beis din. The reason is that all arbitration is contractual -- no one can force you to arbitrate, you have to agree to it. Once you agree, the secular court is simply enforcing your contractual obligation. If both sides agreed to a religious arbitration, then that was their choice, not the court's.
EmesLeYaacovFebruary 12, 2014 at 1:45 PM
Delete@EML - I believe you're correct. US courts cannot act as the agent of a Bais Din according to the constitution, ie "separation of church and state".
That simply is not the case. The RCA pre-nup for all of it's flaws in the later revised versions, is simply a binding arbitration agreement. Thus the courts, technically are not enforcing the will of a B"D, so much as they are enforcing the terms of a contract.
Such agreements are used by numerous non-religious organizations as well. In such a case the couple, or whoever enters into such a binding arbitration agreement, has the right under US law to choose who their arbiters will be. That in the case of the "halakhic prenup" it is a B"D is not a problem. Nor is it violating the second Amendment, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
In fact the US Supreme Court has repeatedly upheld the halakhic prenup as explicitly not violating the supposed separation of Church and State.
"In fact the US Supreme Court has repeatedly upheld the halakhic prenup as explicitly not violating the supposed separation of Church and State."
DeleteThe SCOTUS has never ruled on the halachic prenup.
Anyways, the bigger question is the constitutionality of the "Get Laws" such as that New York has. It is very likely that it is unconstitutional and would be struck down if anyone bothered to pursue an appeal against that law.
A State cannot take into account a religious ritual in determining marital assets distribution. That is a blatant violation of the church and state Constitutional rules.
Furthermore, should a husband give a Get through a Reform or Conservative or Reconstructionist "rabbi", no court could then demand he use an Orthodox rabbi or otherwise the State court will consider it invalid. Especially if the husband claims using another religious denomination, such as Orthodox, violates his religious principles. Come to think of it, this strategy is a perfect way for a husband to give an invalid Get and not suffer from the Get Law. Until the law is fully overturned.
@Tal Benschar - It seems we have an interesting dichotomy here. When it comes to Jewish women who are in archaos, some MO feminists will claim that Bais Din rulings are not enforceable in archaos, so the women have no choice but to use archaos. (I believe that in fact only disputed Bais Din rulings may be unenforceable). When it comes to feminist prenup agreements that are grossly biased against the husband, "then Arbitration is highly favored".
DeleteYour understanding of law does not seem correct. My understanding is that "aseh mah she yisroel omrim lach" means the non-Jew is operating as the shaliach of the Bais Din. A US family court may enforce a (disputed) arbitration ruling, or it may decide not to if it believes the ruling is not equitable. A family court cannot be the shaliach of the Bais Din.
The SCOTUS has never ruled on the halachic prenup.
DeleteThis simply is not true. Please see the book Divorce in Jewish Life and Law which lists several cases. I don't currently have a copy so I can't give you the cases.
A US family court may enforce a (disputed) arbitration ruling, or it may decide not to if it believes the ruling is not equitable.
This entirely depends upon the State. In some States binding arbitration agreements are final. In others, such as NJ, the Court has the ability to set them aside.
A State cannot take into account a religious ritual in determining marital assets distribution. That is a blatant violation of the church and state Constitutional rules.
Again that is a false statement. The Constitution gave States the power to make laws in reference to religion, it was the Federal govt that cannot. While in some instances, such as Schools the SCOTUS has extended that to States as well, it is on account of Federal involvment and funding.
Further to that the so called Get law, does not impose the will of the State upon a religious institution. In case you have not actually read the law, it can be found here:
http://codes.lp.findlaw.com/nycode/DOM/13/253
There seem to be many assumptions about what this law does or does not do. However, in the text is very clear that it only stipulates that a person may not get a final judgement on a divorce unless they have cleared up all other barriers.
I don't believe there will be too many grooms stupid enough to sign one of these crazy prenups.
ReplyDeleteWanna bet? I have seen many grooms sign prenups without really reading it well. A groom will sign anything his trusted Rav tells him to sign.
DeleteThe number of grooms who sign the BDA prenup, something that's been around for over a decade already, is relatively very small.
DeletePerhaps the reason in part also has to do with the fact that many Ravs themselves are not fans of the prenup. And for good reason.
Uclair - In the Modern Orthodox world, it is ubiquitous. My friend, a talmid of Rav Dovid Feinstein who was mesader kiddushin at his wedding, signed it at the request of his in-laws. I have personally seen many people sign it including people who would never call themselves Modern Orthodox.
DeleteIt is very far from ubiquitous in MO communities. And it is very rare outside MO communities.
DeleteYour anecdote about where Rav Dovid was mesader doesn't mean very much, as if someone wants to sign it they can do so without the mesaders involvement or even knowledge.
He spoke to R' Dovid before signing.
DeleteWhy do all these prenups lacks provisions penalizing the wife if she acts wrongly in the lead-up to a separation and divorce? Why are the prenups not only primarily - but completely and only - designed and written to penalize, pressure and punish the husband?
ReplyDeleteWhy do the prenups fail to penalize the wife if she refuses to accept a Get - and only penalizes the husband if he refuses to give the Get?
Why don't the prenups penalize the wife if she becomes a moredes?
Why do the prenups lacks provisions penalizing the wife if she utilizes "arkaos" (secular court) in serious contradiction to Halacha?
Why do the prenups fail to address the issue of when a wife attempts to achieve "equitable distribution" (50%/50%) of marital assets in accordance with secular law but in contradiction with Jewish Law which deems that to be her stealing his property as generally most or all marital property (even her salary!) belong to the husband?
Where are the penalties when a wife unilaterally walks out of a marriage for no valid reason?
Why are there no penalty in all these proposed prenups of the terrible terrible and unfortunately very very common problem of wives who unilaterally take custody of the children and use many attempts to limit or even deny the father access to his own children? She must utilize beis din and halacha in determining who should have custody and how much visitation there ought to be and who chooses the children's chinuch/yeshivos. Yet she can, and very frequently in a separation does, unilaterally leave the marital home for no good reason and grab, seize and kidnap the children with her without her husbands permission or acquiescence, and without the ruling approving such action by any beis din, when she unilaterally walks out -- and yet none of the prenups address this very common issue and penalize her for it?
None of the prenups seek to address these wrongs by a wife and only seek to address perceived wrongs by a husband.
Is it then any wonder that all these proposed prenups fall flat by the wayside and see very little widespread adoption and are generally virtually ignored and disregarded and rejected by grooms? No, its no wonder at all and you can propose another half a dozen prenups and see them all fail as the ones in the past have.
@Serious Issues - Your questions are quite valid. The answer as to why the prenups penalize, pressure, and punish the husband is that today we have very few real rabbis. Instead Jewish men are being persecuted k'neged halacha by feminist politicians in lieu of rabbis. These feminist politicians serve the feminist mob, instead of serving Hashem.
DeleteThere is absolutely no reason why Jewish men need to submit to invented feminist religions that were not taught by Chazal or authentic poskim.
Excellent points, S. I. It's really quite mind boggling how clear the agenda is to unilaterally enhance the "rights" to women
DeleteThis seeking of prenuptials is almost exclusively an idea sought out by the Modern Orthodox. And even with Modern Orthodoxy it is only a minority that utilizes them even though many MO rabbis approve of them.
ReplyDeleteOutside the MO communities, namely in the Chareidi and Sephardic communities, the prenuptials are virtually utterly rejected. You virtually no adoption of them. And the Chareidi rabbonim not only don't push for them they look at them with askance and often rule them to be inadvisable. They don't believe there is any crisis or need for them in society.
And considering that according to the recent Pew Research survey on the American Jewish community indicating that Chareidim constitute over 71% of Orthodoxy, with the MO accounting for most of the remaining close to 29% of American Orthodox Jews, and more importantly American Orthodox Jews 30 years of age and younger are a whopping 81% Chareidi and the MO less than 19% of the Orthodox (!!) you certainly see where the trends are heading. The Chareidim account for an overwhelming majority of the Orthodox -- especially the young Orthodox who are the ones getting married.
And being that they reject the very idea or need for prenups, all these proposals is only being considered by a small minority of the Orthodox. And even among this MO minority, a minority of the MO utilize the prenup. So we are talking about a minority of a minority of a minority (as the Orthodox themselves are a minority of Jews) that are even interested in all this. In the Chareidi communities these type of prenups are not even much of a matter of discussion!
Why did Chazal institute a Kesubah? And they instituted it so strongly, that a couple may not be married one night with out one? Why? The Founders, Chazal, state explicitly that it was in order that it should not be light (easy) for one to divorce his wife.
ReplyDeleteNow we are seeking to make it possible for a woman to divorce her husband through these pre-nups. So, where is the other new Kesubah that the woman becomes responsible to pay her husband for the divorce (when she initiates it)? Why can you make it light for the woman to divorce her husband?
Any man (or woman) seeking to go in the spirit of Chazal would reject these pre-nups - or would demand the pre-nup include a significant monetary responsibility on the woman if she initiates divorce.
Firstly, after having expressed by gratitude to Ha-Kadosh Barukh Hu (as per the gemara in Nedarim 32b that one must thank the Ribbono shel Olam before one thanks a human benefactor), I would like to thank R. Eidelsohn for elevating the essay of (le-havdil ani ha-katan) this unworthy student to the royal table (shulchan melakhim). Secondly, I would like to thank all the talmidei chakhamim here (who are gedolim ve-tovim mimeni) for their insightful responses to me, which have enhanced my appreciation of this sugya. I will now counter-respond to two general themes that have been expressed.
ReplyDelete1) I agree that we can proudly describe ourselves as "Orthodox Jews" without insisting upon the modifying adjective of "Modern," since all Jewry was given the same Torah by Ha-Kadosh Barukh Hu at Mount Sinai. [Or, stated otherwise, all Orthodox Judaism is - by definition - "Modern Orthodoxy", since "words of Torah should be new to you as though they were given today" (Rashi to Exodus 19:1).] Indeed, R. Bleich (Contemporary Halakhic Problems IV, pp. xvii - xviii, writes that "The halakhic enterprise, of necessity, proceeds without reference or openness to, much less acceptance or rejection of, modernity. Modernity is irrelevant to the formulation of halakhic determinations. Torah is timeless and eternal. Modern insights may help us to understand and appreciate both principles and minutiae of Halakhah in ways heretofore unknown, but they do not at all effect particular determinations of Halakhah," This point appears to also be cryptically rendered by R. Efraim Greenblatt and R. Yuval Noff, Rivevot ve-Yovlot I, p. 458; Dr. Tovah Lichtenstein in the first footnote of her article in Tradition 44:4 (Winter 2011); and the posthumously published Iggerot Mosheh, Yoreh De'ah V, Yoreh De'ah no. 27.
ReplyDelete2) All the talmidei chakhamim here who oppose my prenuptial agreement are in very illustrious company. As R. Bleich wrote to me in an e-mail of April 26, 2012 (quoted in footnote 73; I apologize that the footnote is a little unwieldy so it will take some heroic effort for the reader to locate that particular passage), prenuptial agreements are generally not accepted because of "(a) policy concerns and (b) lack of initiative and/or interest - that will apply to any proposal you, I and anyone else will propose."
Nevertheless, as further explained in that footnote, R. Yaakov Kamenetzky - at a meeting of the Agudath Israel of America - encouraged the Agudath Israel of America to implement his disciple R. Bleich's prenuptial agreement. [Thank Heaven, the Agudath Israel has not yet implemented this encouragement, because R. Bleich's prenuptial agreement actually first needed to be diamond-polished in the manner indicated by Section Q of my essay. Now with the publication of my essay, the Agudath Israel can finally follow R. Kamenetzky's encouragement in good conscience, Barukh Ha-Shem.]
In terms of why R. Kamentzky felt this way, I would hypothesize that his reasoning is parallel to that of R. Moshe Feinstein in Iggerot Mosheh, Orach Chaim I, no. 40. There, R. Feinstein is asked why he insists on publicizing his opinion that a synagogue partition need only be three cubits high, when even R. Feinstein concedes that a ba'al nefesh should be stringent to pray in a synagogue with a partition advocated by his distinguished colleague R. Joel Teitelbaum. R. Feinstein answers that where a legitimate leniency exists (i.e. for a synagogue to possess a three-cubit high partition), it is important to publicize the leniency in order to be mekarev libam shel Yisrael la-Avihem she-ba-Shamayim. Obviously, a pious Jew is better served if he prays in a synagogue that follows R. Teitelbaum. But for those who will be inspired to become Charedim li-Devar Ha-Shem (to paraphrase Isaiah 66:5 by the availability of the three-cubit high leniency (-and if the leniency is truly legitimate according to the pure law of our Oral Torah), then we should render that leniency available. I believe this explains R. Kamenetzky's reasoning.
Rabbi Spira,
DeleteI understand that Rav Yaakov Kaminetzky suggested to the Agudah that they officially make available the prenup as an option to couples choosing to sign such a prenup, so that one that one that is halachicly viable and halachicly valid can be utilized as opposed to a prenup that is halachicly invalid and later can cause a "Get me'usa", as you yourself have valiantly pointed out many of the current prenups, including the BDA, fatally suffer from.
At no point, though, has Rav Yaakov suggested to the Agudah that the proposed prenup be implemented and encouraged on a widespread wholesale basis throughout marriages in Klal Yisroel. Only that it be made available as an option to those so choosing. I haven't seen anyone who says Rav Yaakov Kaminetzky wanted this to be promulgated as a preferred introduction prior to the marriage ceremony.
Additionally, many other rabbonim were and are opposed to the introduction of the prenup as an item to be promoted or encouraged for young engaged couples to sign prior to marriage. More information on this point can be obtained from the Agudas Yisroel's Executive Director Rabbi Chaim Dovid Zweibel and from the Agudas Rabbi Avi Shafran (who has publicly written on this subject on several occasions.)
See http://www.cjnews.com/node/92422 for additional information
DeleteDT: Thank you for that reference. I read it. It is stating, in fewer words, the same thing Rabbi Spira already cited in the footnotes of his proposal - which I read yesterday in its entirety. Both the proposal and the link you provided are consistent with the point I made regarding Rav Yaakov in my above comment.
DeleteOne additional point I'd like to add is that the reason the Agudah didn't even adopt the prenup as an official option for those choosing it, is because the general consensus of the Moetzes Gedolei HaTorah of the Agudas Yisroel was that it is a bad idea.
Could someone who has actually read the proposal possibly summarize it for the benefit of the audience here who doesn't have time to go through it? (To attack the author based on an aggadic statement in his concluding paragraph without having read anything of the actual proposal is nothing short of idiotic, and betrays a severe bias, lack of intelligence, and lack of midos among some of the commenters on this site. You can be all for unadulterated halacha and still be an idiot menuval. Just saying.)
ReplyDeleteSee http://www.cjnews.com/node/92422 for a summary of version #2
DeleteAlot of the points he raises in objection to the BDA pre-nup have been raised on other forums (sometimes by him) and thoroughly discussed. I would refer the interested reader to Torah Musings for a more info.
ReplyDeleteThe reason why several rabbonim believe a prenup (which, by the way is EXACTLY what a kesuba is) is necessary, is because the society we have today is broken and measure, again, need to be taken to prevent men (who are in the position of unilateral power) from being abusive towards the women they promised to provide for and protect.
ReplyDeleteSince all the gentlemen reading and commenting on this blog are likely fine and moral people, I am sure it will hard for you to believe that there are some not nice and not moral men out there. I know of too many cases where very sweet, "aidel," gentle girls were left in a huge bind when their husbands either ran off with non-Jewish women, or left the house one day to never return. I also know of many cases where a husband beat - yes, as in fist to face, stomach, neck etc, wives as expression of anger.
In devastating cases such as these, where men run off with secretaries, or become drug abusers, or are physically violent, what are women to do? Rebbeim who know these cases ring their hands trying ANYTHING to help set these women free, but the men put their foot down... Off with their mexican mistresses, or wallowing in their anger, they claim to want hundreds of thousands of dollars for a get, IF they can be found, that is...
It is clear to many (perhaps not among the gentlemen in this forum) that there are tragedies out there that COULD be prevented. A "prenup" is one approach. I think it's worth exploring the options to craft something that could help the beis din to end these tragedies without having to resort to either violence (which we know many charedi and chassidishe community Rebbeim DO endorse), or acquiescing to extortion.
The fears that men wouldnt get married is BUBKIS. Unfounded. Men will continue to marry because they want to give, love, respect, and be given to, be loved by, and be respected by a wonderful wife. They want to fulfill the mitzvah of peru urevuah and enjoy the pleasures of an intimate lifelong partnership. All a prenup will do is prevent the NOT NICE guys from getting away with nonsense that has been going on in communities everywhere.
Enabling women to divorce willy nilly isn't the point of these prenups. Preventing abuse and extortion is.
The type of situations you are describing occur in a a miniscule of a miniscule of marriages and a tiny minority of divorces. It does not justify wholesale adoption and promotion of a prenup (which itself brings new risks to the table.)
DeleteIt is an unnecessary bulldozer attempting to force the entire Jewish world to change their marriage procedures to address a very small problem. Granted when the problem happens it is a big problem in each of those cases, but overall it is a very small occurrence relative to overall marriages in the community. And bulldozing this down societies throat is not the solution nor will it work or be widely accepted.
Wrong. In the examples you cite, the man would be forced to give a get according to everyone.
DeleteThese prenups are nothing but a way of circumventing halacha and creating a no-fault divorce regime.
OKAY People said: "Enabling women to divorce willy nilly isn't the point of these prenups. Preventing abuse and extortion is."
DeleteEnabling such women MUST ALSO be the point in these considerations. NO one wants abuse, etc. But the street goes two ways, and this fact is woefully neglected by the knights in shining armor trying to save all the "righteous" ladies.
It's a profound conundrum. Truth must be stared down from all angles.
OKAY People,
DeleteYOu state that the pre-nup "which, by the way is EXACTLY what a kesuba is". It is not! Theintention of the Kesubah was the it should not be light (easy) for the man to divorce his wife. The woman never had the ability to divorce her husband. (Other than the cases where halacha/ G-d's Commandments! require him to divorce her.)
These pre-nups make it extremely light for a woman to divorce her husband. Why don't these pre-nups also include consequences to a wife for initiating divorce?? [And just as a woman can lose her Kesubah for certain unacceptable behaviors, it can be stipulated that a man shall as well.]
Again, why is there no consequence to the woman, just as a kesubah is all about consequences for the man for initiating divorce?
Rabbi Spira's halachic analysis throughout this document he composed is very astute, on the button and halachicly very sound and extremely well documented and sourced.
ReplyDeleteI'll add the caveat that I do not believe there is a need for a prenup and it is against sound policy to attempt to shove a prenup down societies throat in trying to pigeonhole widespread adoption of this unnecessary tool (considering the numerically small extent of the aguna problem, attempting to create a universal solution [of a prenup] that carrier great risks to society as the author of this proposal notes, to fix an issue affecting a very small element of the community - indeed even a very small percentage of divorce cases - thus it being counterproductive with its risks likely causing greater problems than the solution it proposes as a universal societal tool for an issue affecting very few).
My point is the prenup could be utilized by individual couples so choosing to sign one. And for them it is needed a sound halachicly viable and permissible prenup. Rabbi Spira's document presents such a prenup. That being said, it should be limited to couples choosing on their own to sign one. It should not be pushed or encouraged on a widespread or wholesale basis.
DeleteTo that I'll add another caveat. Even couples on their own choosing to sign such a prenup, the terms proposed by Rabbi Spira should be modified to add provisions to it that protect the husband as well (as a previous commenter above suggested.) It should not be a prenup that is solely and exclusively written to give the wife additional rights without giving the husband, as well, additional rights to protect him from being taken to the cleaners and run over in a potential divorce.
I don't see how the prenup differs in any way from the fine spoken of in the B"Y in EH"E 134 and basically forbidden by the Rema L'Chatchila in the Sh"A.
ReplyDeleteTo me this seems far worse than the RCA/BDA prenup(assuming that the options IV:A(1) and IV:B) were chosen. Rav Ovadia Yosef ZTzUK"L signed off on what was more or less that version(what was presented to him also left the name of the B"D blank so that couple could choose, and section VII was worded slightly differently). I know that he was not informed of the other options when he signed off on it, and expressed to me that they would make it non-halakhic.
The previous posek hador rav elyaahiv held this prenup would lead to a get meuseh. He also held a forced get because of mous olai led to a get meuseh.
ReplyDeleteStan, I assume you are referring to the RCA/BDA prenup. You are correct, of course, in that regard that Rav Elyashev holds that it is pasul and directly causes a Get Me'usa. But the question remains how the poskim would view Rabbi Spira's new proposal.
DeleteThe previous posek hador rav elyaahiv held this prenup would lead to a get meuseh.
DeleteProof please. How does obligating someone to go to a B"D make a Get Meusa.
He also held a forced get because of mous olai led to a get meuseh.
Only partially true. He ruled in the cases of abusive husbands, homosexual husbands, and husbands who made use of prostitutes that they could be forced(kofin) to give a get. In all of those cases the woman's claim is still Mais Ali.
Rav Eliashev said that the financial pressure an RCA type of prenup places on the husband makes a subsequent Get me'usa since the husband did not expect to later get divorced at the time he signed it.
DeleteHe ruled in the cases of abusive husbands, homosexual husbands, and husbands who made use of prostitutes that they could be forced(kofin) to give a get. In all of those cases the woman's claim is still Mais Ali.
DeleteDo you have a source for this? What is his basis for these type of mais ali being different than other types of mais ali? Is he applying it to all mais ali cases with justification?
CVFebruary 13, 2014 at 2:38 PM
DeleteRav Eliashev said that the financial pressure an RCA type of prenup places on the husband makes a subsequent Get me'usa since the husband did not expect to later get divorced at the time he signed it.
Printed source or it ever happened. It obligates the man to appear before a B"D it does not obligate him to give a Get. The B"D can simply say no.
CVFebruary 13, 2014 at 2:40 PM
Do you have a source for this? What is his basis for these type of mais ali being different than other types of mais ali? Is he applying it to all mais ali cases with justification?
Yes his various psakim found in Piskei Din. I have posted multiple examples of this in the past, and don't really feel like digging them up. In short if the woman doesn't have a clear justification that is believed by the B"D she is a moredet. If she does, it depends on how it appears in the eyes of the B"D according to the halakha. However the only claim that a woman can make, under any circumstances before a B"D is a Mais Ali. There are several cases where the Shulhan Arukh specifically says that we are Kofin and no one argues on that.
For instance one case that came before the B"D with Rav Eliashiv(found if I remember correctly) in the third or fourth volume of Piskei Din, was that of a man who had in his youth molested small children. Five years into the marriage the woman catches him in the act of molesting their son.
What is her claim before B"D for wanting a divorce? Al Pi halakha it must be Mais Ali with the reason that her husband is a pervert and harming their own son. The B"D ruled Kofin L'Get with Rav Eliashiv's signature. It all depends upon how the claim appears in the eyes of the B"D.
Thank you very much R' NMH (as well as all the other talmidei chakhamim who have responded further). I extend my hakarat ha-tov for your kind words of praise.
ReplyDeleteI admit that I never enjoyed the privilege of meeting R. Kamenetzky, and so I do not know first-hand how enthusiastic he was when he encouraged the Agudath Israel to adopt the particular prenuptial agreement that R. Bleich presented (-which, la-aniyut da'ati, must be corrected as specified in Section Q). So I will cover both possibilities: in case R. Kamenetzky was highly enthusiastic, I hereby present my proposal. Those who feel that R. Kamenetzky was not so enthusiastic, or alternatively that other scholars overruled him, are welcome not to employ my proposal.
Yet, also worth noting is how the prenuptial agreement of Section O shields the bride and groom from government Get Laws. My feeling is that it is helpful to present both prenuptial agreements as a package deal (as my essay does) because (to quote I Kings 19:11-12) "lo va-ru'ach Ha-Shem... lo va-ra'ash Ha-Shem... lo va-esh Ha-Shem, ve-achar ha-esh kol demamah dakah." In other words, the best way to champion Kevod Shamayim is through the brilliant diplomatic finesse of "kol demamah dakah." By combining the prenuptial agreement (of Section O) which shields the bride and groom from the Get Laws with the prenuptial agreement (of Section Q) which empowers the wife like Rebecca our Matriarch, the path of "kol demamah dakah" has been successfully emulated.
Rabbi Spira,
DeleteThank you for your response.
Regarding Rav Yaakov, I don't see any reason for anyone to think or assume he intended a prenup to be an idea to be universally implemented across all future marriages. He never gave any such indication or reason to even think that he might mean such a thing. All he indicated is that type of prenup was halachicly acceptable and worked, and should be made available to those engaged couples that choose or feel the need for it. Since some would want that, he wanted a prenup written that would be halachicly acceptable rather than risk that some couples would use a halachicly problematic prenup that later causes an invalid Get (me'usa). So he felt it necessary to produce a valid prenup to be made available. But at no time did he state a desire that it be pressured or encouraged or forced on newly engaged couples. And there isn't any reason to think he might have meant such a thing.
And of course, as pointed out, the other members of the Moetzes Gedolei HaTorah didn't even go as far as Rav Yaakov went.
So now you mentioned that since you proposed two prenups, the first of which is designed to negate the New York and Canadian Get laws, that point should be a reason to make your second proposed prenup more halachicly acceptable or reason for it to be encouraged. There are a few points I'd like to make about this thought of yours.
1. This is only even relevant to residents of New York and Canada. Most of Klal Yisroel live outside of New York and Canada and thus your first prenup is a non-issue for them.
2. Many Jews people living outside these two jurisdictions presumably won't sign your first prenup as it is irrelevant to them as they do not live in those jurisdictions and thus there is little point for Jews engaged to be married in Israel or California or Florida elsewhere to bother with the first prenup. But many Jews move to New York (or Canada) later in their marriage after having gotten married and initially started their married life outside these two jurisdictions (and thus never signed the first prenup.) At this point, G-d forbid, a future divorced will take place in New York or Canada without them having the benefit of having the first prenup signed. Thus they will be subjected to the halachicly problematic New York or Canadian Get law.
3. I am not as confident as you are that your first prenup will in fact even shield the (husband and wife) signatories to it from the New York and Canadian Get laws. It will need to be tested in court to see what the judges rule on it. I think it is more likely than not that even if such a prenup was signed that the judicial system in New York and Canada will rule that two parties cannot sign away their rights granted to them by the legislature as enacted in the relevant Get laws. That is, legally the Get laws cannot be overturned even based on a prior agreement by the two parties that the law and its protections will not apply to the husband and wife signatories of the prenup.
<...continuation>
DeleteMy next two points are my most important ones on this topic:
4. I am not suggesting that your two proposed prenups not be made available or utilized by those choosing to engage and sign them with their groom or bride. I fully support your efforts in this regard and your making available this halachicly valid prenup. The only point I am taking issue with, is your apparent desire that your proposed prenups be encouraged to be implemented as much and as widely as possible. I am outlining the reasons why your prenups should be made available, but it should not be pushed or encouraged. It should only be made available to those Chasanim and Kallahs who ask for a prenup and express a desire on their own initiative to sign such a prenup. Your efforts will allow these Chasanim and Kallahs to have available to them a fully halachicly valid prenup whereas otherwise, without your noble effort, would not have had a halachicly valid prenup available and would likely have signed the RCA/BDA prenup, which is halachicly invalid and, Chas V'Shalom, later causes a Get Me'usa during a divorce.
5. And related to point "4", I do not believe that there is any reason to encourage the second prenup you proposed. (But again, I believe it is wise for you to have composed it and made it available to those that will choose to sign such a prenup.) Halacha wishes to discourage divorce. Therefore halacha presents obstacles to married couples getting divorced even if one of them desires to. Admittedly, there is a very large problem affectimg a very small number of married couples where the wife wishes get divorced and it is a case where she is fully entitled to a Get and yet the husband illegitimately refuses to grant the divorce he is halachicly obligated to. And, indeed, beis din and society needs to act to address this excruciating problem affecting a very very small number of women. Yet encouraging or pressuring all engaged couples to sign a prenup for this reason is overkill and incorrect. And it is a bad start to a marriage.
And most importantly this type of prenup, effectively, gives the wife the ability to obtain a divorce in far more cases than halacha grants her. Effectively, she can force a divorce even when she is not halachicly entitled to one and even for the times where halacha desires that the marriage continue and for beis din to strongly encourage the marriage continue despite a divorce being requested. It will make divorce far too easy and divorce far too fast. It will encourage divorces where otherwise, without this prenup, the couple would not have divorced and would rather have reconciled.
Yasher Koach
I don't claim to have carefully read the whole so-called prenup document above.
ReplyDeleteBut if this is the core obligation of the Jewish husband (about p. 74):
"If the lady ______________________ will agree to accept
kiddushin from me, then everyday of the marriage I will give the lady
tosefet mezonot of one thousand dollars U.S."
then this so-called prenup is simply an invented ultra-feminist divorce regime designed to replace and nullify Torah Judaism.
Ask any normal non-Jew and he would consider any man who signs such a document to be utterly demented.
If the MO rabbis attempt to enforce acceptance of this grossly unjust divorce scheme, we are going to have a marriage strike by Jewish men the likes of we've never seen before.
then this so-called prenup is simply an invented ultra-feminist divorce regime designed to replace and nullify Torah Judaism.
DeleteNo it is the fine spoken of by the B"Y in siman 134 of Even HaEzer, and to wwhich the Rema mostly objects in EH"E 134:4 with this statement:
וטוב לחוש לכתחילה ולפטורו מן הקנס אבל אם כבר גירש מפני זה הגט כשר
In short there is a machloket between the Mahrik and the Rashba. The B"Y sided with the Maharik, the Rema in the Sh"A says that we ought to be worried about the opinion of the Rashba l'chatchila, and alleviate the tax, but if it is already done, the Get is kosher.
In modern poskim there is a machloket between Rav Ovadia Yosef and Rav Mordekhai Eliyahu as to whether Sephardim are permitted to do this. I am not about to put my head between the mountains but I hold like my own Roshei Yeshivot and Rav Eliyahu.
From the Ashkenazi side, I don't know of anyone who would permit this, as it clearly goes against the Rema.
However it is not a feminist invention. I am fairly certain that the B"Y and the Maharik before him were not feminists. You are looking at this thing far too two dimentionally, where someone is either a feminist or a Torah true Jew. Which is the problem with this debate in this format. The truth is that there are real and total feminists who would re-write the Shulhan Arukh, Rabbi Fink demonstrably having been one of them that we discussed here. There are also misogynists who would strip women of the rights that the Torah gives them. Notably those(who will for now go unnamed) who disappear from the discussion once they are pressed upon the point of as to whether they would allow Kofin for any of the things that the Sh"A and poskim do, such as clear and evident spousal abuse or child molestation. Then there are is a diversified middle of people sincerely seeking the truth of what may be done under halakha to alleviate, as much as possible, the suffering of all involved.
@Tzadok, you're a master of halachic obfuscation. Stop trying to impose your New Age feminist "halacha" on Ashkenazim.
DeleteNeither the B"Y nor the Rema in EH"E 134:4 says anywhere that a man is required to sign an agreement to "give the lady (everyday) tosefet mezonot of one thousand dollars U.S."
This so-called prenup is a New Age feminist contrivance.
RMT: If I understand you, in a nutshell you are saying that a prenup is forbidden for Ashkenazim and a machlokes whether forbidden for Sephardim, with Chacham Ovadia Yosef ruling it forbidden.
DeleteSaw a great presentation by Rabbi Becher recently about the Cairo geniza. Over 300 prenups were found there, detailing terms under which a husband would be required to provide his wife a get or pay a penalty to her if he did not up hold, and they varied wildly from asking her for permission before every business trip, not bringing his hooligan friends home, not purchasing a female slave and so on. VERY FASCINATING stuff.
DeleteI don't think the fine Jews of Cairo in the 11th century were experiencing a feminist revolution either... I'm just saying.
Stop with the conspiracy fears.
The geniza had stuff from the large Egyptian Karaite community. Additionally not everything found in it was halachicly correct. Finding stuff that was done there does not mean it was permitted. Furthermore, the geniza itself isn't a reliable indicator of what is or isn't appropriate.
DeleteEmesLeYaacovFebruary 13, 2014 at 6:11 PM
Delete@Tzadok, you're a master of halachic obfuscation. Stop trying to impose your New Age feminist "halacha" on Ashkenazim.
Neither the B"Y nor the Rema in EH"E 134:4 says anywhere that a man is required to sign an agreement to "give the lady (everyday) tosefet mezonot of one thousand dollars U.S."
It would actually help if you read what I write before you simply jump to the word feminist. Or saying that I am trying to impose Sephardi halakha.
I clearly wrote:
No it is the fine spoken of by the B"Y in siman 134 of Even HaEzer, and to wwhich the Rema mostly objects in EH"E 134:4 with this statement:
וטוב לחוש לכתחילה ולפטורו מן הקנס אבל אם כבר גירש מפני זה הגט כשר
In short there is a machloket between the Mahrik and the Rashba. The B"Y sided with the Maharik, the Rema in the Sh"A says that we ought to be worried about the opinion of the Rashba l'chatchila, and alleviate the tax, but if it is already done, the Get is kosher.
In modern poskim there is a machloket between Rav Ovadia Yosef and Rav Mordekhai Eliyahu as to whether Sephardim are permitted to do this. I am not about to put my head between the mountains but I hold like my own Roshei Yeshivot and Rav Eliyahu.
From the Ashkenazi side, I don't know of anyone who would permit this, as it clearly goes against the Rema.
Demonstrating the rulings on both sides.
DocFebruary 13, 2014 at 7:20 PM
RMT: If I understand you, in a nutshell you are saying that a prenup is forbidden for Ashkenazim and a machlokes whether forbidden for Sephardim, with Chacham Ovadia Yosef ruling it forbidden.
FIrst thank you for actually reading my comment, second on the Sephardi side Rav Ovadia would have permitted the Pre-Nup while Rav Eliyahu clearly wrote against it.
RMT: Thank you. Does Chacham Ovadia Yosef just permit it (i.e. if couple wants it) or does he think it is a good idea and that it should be encouraged to be used?
Delete@Doc
DeleteMy understanding was only if a couple wanted it. Now we are talking about tosefet mezonot. Regarding the RCA/BDA/Halakhic prenup which in it's Hebrew form allows the couple to chose a B"D, and only obligates the couple to appear before said B"D upon being summoned. All Sephardi authorities to my knowledge permit that, and Rav Ovadia felt that it should be encouraged.
Michael tzaddok claims "What is her claim before B"D for wanting a divorce? Al Pi halakha it must be Mais Ali with the reason that her husband is a pervert and harming their own son. The B"D ruled Kofin L'Get with Rav Eliashiv's signature. It all depends upon how the claim appears in the eyes of the B"D."
ReplyDeleteAbsolutely not true. The husband is a rodef and the child has to be kept away from him and that means the meother needs to live apart from the father. Nothing conclusive. just pure conjecture.
Stan please learn to read Hebrew. Then read the words of the Rav in Piskei Din. Then you will be able to discuss this. You are dismissing something as conjecture ect, when you have not read his Teshuva. That is absurd.
DeleteThank you, R' NMH, for you illuminating response and generous words of support. Caveat #2 that you raise neutralizes caveat #1 ["chada metoretzet be-yarekh chavertah," a poetic expression I can earliest find in R. Yehudah Rozanes, Parashat Derakhim, no. 26, first paragraph, which presumably is a pun on the gemara in Megillah 13a, penultimate line, which employs a similar expression).] Namely, you are correct that the Get Laws exist only in Canada and New York, but - on the other hand - you are also correct that we live in a mobile society, where people may ultimately move to Canada and New York. Ergo, it may be advisable for everyone to employ the prenuptial agreement in Section O. Also, perhaps other states and countries will pass similar laws, whereupon the prenuptial agreement in Section O becomes most helpful.
ReplyDeleteRegarding the objection that the prenuptial agreement in Section Q destabilizes the family: Indeed, R. Bleich writes in Be-Netivot ha-Halakhah I, p. 20, final paragraph, that the prenuptial agreement based on Rebecca our Matriarch will allow any lady to dissolve the marriage under all circumstances. R. Bleich explains that we are faced with the countervailing challenge of igun and mamzerut, such that we have to guage the question of "kabel et ha-ara be-mi'uto." So ends the chapter on that cliffhanger. So I asked him in person: which is the "ra be-mi'uto"? Answered he: to use the prenuptial agreement. So I counter-asked him: Does that mean the Rosh Yeshiva actually recommends the prenuptial agreement when he is mesader kiddushin? Answered he: No, not until a more widespread consensus will exist to actually use it. [I note, however, that the way the prenuptial agreement is diamond-polished by this student in Section Q, it is only effective when the husband and wife follow through on it day after day. The co-operation engendered by their following through day after day may itself be a source of shelom bayit.]
Rabbi Spira, thank you again for responding.
DeleteYou haven't addressed the above (secular) legal point that, for the aforementioned reasons, your proposed prenup designed to nullify the application of the Get Laws of New York and Canada for the couple who are signatories to that prenup, likely will not be upheld in New York and Canadian secular court. And certainly any other jurisdiction (besides NY and Canada) that implements a similar Get law in the future that is not the law at the time a couple marries, will not have their new Get law made inapplicable based on your proposed prenup.
I also strongly disagree with you, even if we're to grant that the NY/Canadian prenup was enforceable, that the NY/Canadian prenup makes the second prenup (effectively granting a wife the unlimited right to a "Get-on-demand") more acceptable to be implemented on a widespread basis in Klal Yisroel. I believe that the negativities and the dangers and the large societal damage that will occur by implementing the second proposed prenup (let us call it "the Get-on-demand prenup") are far far worse than any possible benefit gained by implementing the NY/Canadian prenup.
Furthermore, your NY/Canadian Get law nullification prenup is indeed a wise idea and proposal, but it still provides much much too few protections for the husband. While it may protect the minority of husbands who live in NY and Canada from the effects of those unhalachic Get laws, all Jewish husbands across the world face far far greater dangers in a divorce process than just the NY or Canadian Get laws. Husbands in the process of divorce face the common tactic of a wife using arakos, secular court and secular laws in contravention to halacha in demanding and receiving more child support than halachicly warranted, unhalachic alimony, having his property seized by his wife through secular courts applying secular marital distribution laws that differ from halacha and many other risks - some of which the above poster "Serious Issues" (on February 12, 2014 at 8:22 AM) mentioned. Your first prenup provides no protection for the husband on these many many risks that Jewish husbands commonly fall victim to in secular court in contravention to halacha.
Regarding your last point from Rabbi Bleich. Notably you indicated in Footnote 73 that even Rabbi Bleich acknowledges there is little likelihood of the prenup ever seeing widespread adoption because of "(a) policy concerns and (b) lack of initiative and/or interest - that will apply to any proposal you, I and anyone else will propose" (quoting Rabbi Bleich).
DeleteTherefore, the fact that Rabbi Bleich does not use it currently until he sees a rabbinical consensus insisting on its use -- and he indicated he does not expect that to occur -- demonstrates that even Rabbi Bleich does not have strong feelings that it should be adopted on a widespread basis. He told you privately (though he never indicated so publicly) that he thinks it is a good idea to implement. But apparently he does not strongly think so. He could implement it personally himself when he is Mesader Kiddushin. There is no reason for him to hold back from doing so when he performs a wedding just because it isn't yet implemented on a widespread basis. Whatever benefits Rabbi Bleich believes prenups will help marriages and/or divorces in Klal Yisroel, will positively and beneficially affect the individual marriages or divorces that he and other rabbis perform using the prenup. And yet he does not recommend currently others use it until it gains wide rabbinical backing. And even more tellingly he does not use it himself at the wedding he preforms, even though if he would do so, at least those individual weddings would gain all the benefits he sees the prenup providing. Therefore it is obvious to conclude that even though Rabbi Bleich might think the prenup is a good idea, he doesn't think it is that great an idea that he is using it already himself.
And, additionally, whatever benefits Rabbi Bleich sees out of the prenup, obviously the Gedolei Yisroel disagree with Rabbi Bleich as they (such as the Moetzes Gedolei HaTorah) have never advised or sought to make widespread implementation of the prenup.
R' yy,
ReplyDeleteThank you and ye'yasher kochakha for your excellent critique of me (Feb. 12, 3:06 a.m.), which I enjoyed and which I feel honoured to receive. You are correct that really there is a dichotomy of concepts within the Oral Torah: nachat ru'ach la-nashim (Chagigah 16b) vs. ve-nivasru kol ha-nashim (Sotah 7b, based on Ezekiel 23:48). [R. Michael Tzadok alluded to this dichotomy.] My conclusion focuses on nachat ru'ach la-nashim, but could just as well have been rephrased from a ve-nivasru kol ha-nashim perspective. I guess the answer why I chose the Tamar episode as my paradigm is that it is my pedagogical sense that the needs of the hour are such. After all, the gemara in Sukkah 32a (regarding the lulav) and 32b (regarding the hadas) applies derakheha darkhei noam (Proverbs 3:17) to teach that there is no way the Torah would command us to take a prickly kapot temarim or anaf etz avot. [Similarly, the gemara in Yevamot 15a and idem. 87b derives limitations on yibum from derakheha darkhei noam.] So I tried to phrase my conclusion [without chas ve-chalilah distorting the pure Halakhah revealed by HKB"H to Mosheh Rabbeinu] in a manner of nachat ru'ach la-nashim, because my sense is that - in 5774 - the value of derakheha darkhei noam requires such pedagogical language. But ein hakhi nami, each groom must decide in consultation with his mesader kiddushin how to proceed on this question.
R' Superintendant Chalmers,
Thank you for your very kind defense of me (Feb. 12, 4:15 p.m.) As we now see, both R' yy and yourself are tzaddikim.
R' Shalom Spira -
DeleteOnly now have I spotted this reply of yours. I have not been following much of this lengthy and highly verbose thread. And I must say that your bizarre style of hyper flattery in the way you relate to your counterparts make it very difficult to take you seriously. Your last remark about "tsaddikim" is particularly out of left field.
WHAT IN THE WORLD IS YOUR BOTTOM LINE POINTS! Are you offended by my comments, have issue x y z with them, or what? And what exactly did you "enjoy"...
R' Shalom, I find your "pedagogical sense" to be odious. I think most of us believe that "Derakheha darkhei noam". But is claiming that all Jewish women are like Tamar doing this? And patriarch Yehuda's sin, in contrast to her impeccable intentions, was MAJOR. Sadly, throughout history we know that as wonderful as our women can be -- and in the majority of the cases far more than the men - still, they have plenty of their own yeitzer ha'ra, and when they unleash it - watch out!
Our Torah is a Toras Emes. This same Torah makes it clear that women have certain responsibilities to their husband, among them is that once they are bound b'kedusha with them, they can not simply decide to abrogate that bond. His ratzon is crucial, just as it is in the kedushin, and all the scholastic gymnastics in the world cannot change that.
The bracha is "binyan adei ad". This is not a game. To deconstruct such a binyan must be done with utmost finesse and AGREEMENT OF THE CONSTRUCTER OF THE YESOD"!
The problem with husbands who are required to give a GET and yet refuse to do so is a relatively rare, exceptional, infrequent and uncommon circumstance in divorce cases in the Orthodox Jewish world.
ReplyDeleteIn those rare "man bites dog" cases that it does happen, it is certainly a horrible and terrible situation for his wife and for the Jewish community. And it must be dealt with on a case-by-case basis.
But given its uncommonness - this issue is certainly and clearly not a widespread phenomenon in Orthodox Jewish marriages - it is sheer insanity to implement a universal change in the Jewish marriage process for a problem affecting a tiny amount of divorces. And divorces themselves occur only in a small proportion of Orthodox marriages. In sum, a minority of a minority as the parlance goes.
Especially so given the damage even the authors of the prenuptial agreements admit will occur on a societal basis by implementing it. (More quick divorces where marriages would have otherwise been repaired, etc.)
Clearly the damage of universal prenuptials in society substantially causes more damage than any good.
You are very correct about the rarity of aguna cases. Relative to the number of marriages in the Orthodox community, divorces are a small percentage. And relative to the number of divorces in the Orthodox community, aguna cases are a minuscule percentage of divorces.
DeleteIn this vein it must also be noted that not every case where a woman demands a divorce and the man doesn't immediately hand it over, does that make her an aguna. An aguna is a woman who it has been adjudicated in religious court that her husband has the legal obligation under Jewish law to hand her a divorce and once that ruling has been issued he still refuses to carry out the order to give her a Get. At that point she can be referred to as an aguna.
Until and unless a ruling by bais din has been issued that there is an obligation for him to give a Get, he has no such obligation and she is not an aguna even if she thinks she is because he did not giver her a Ger per her request.
It is far worse than this as has already been pointed out. The agreements proposed in the past - i wont even bother to look at this one - are totally one sided, ignore the issur of arko"oys and don't penalize the woman for this.
ReplyDeleteIn most cases where a get is being withheld it is accompanied with arko"oys and/or the mother preventing the father reasonable access to his children.
Can Tzadok actually claim with a straight face that enabling the wife to "always instantly win in any dispute with her husband" is not a blatantly feminist contrivance?
ReplyDeletePerhaps Tzadok found where the B"Y and the Rema call for the wife to "always instantly win in any dispute with her husband"?
"As R. Bleich notes, this prenuptial agreement so greatly empowers the bride that essentially the wife will always instantly win in any dispute with her husband, and no wife will ever be an agunah. R. Bleich calls this situation – which deprives all husbands of any leverage in a marital dispute – “the lesser of two evils”.(p.67)"
Can Tzadok actually claim with a straight face that enabling the wife to "always instantly win in any dispute with her husband" is not a blatantly feminist contrivance?
DeleteCan you seriously read Hebrew? Or even English for that matter? Have you actually opened the Tur to see what is written in the B"Y? Apparently not.
Further you seem to be misconstruing what I am saying. Where did I say that the Rema said this was permitted l'chatchila? He specifically says that we should try to get the husband out from under such an obligation, but if he did divorce with such an obligation(I am guessing to the B"D lack of knowledge concerning the presence of such an agreement) after the fact the Get would be Kosher.
R' Bleich is hitting on the same notes that are found in the machloket between the Maharik and the Rashba. Are you saying that the Maharik was a feminist? Or the B"Y who sided with him? That is simply absurd. What is worse is that you are making these proclamations without actually reading the sources. I am guessing because you can't.
You can raise your flag against "feminists" all you want. However, in the end you are simply going to sound like a misogynist who is ignorant of sources. It really ought to be enough for you that the Rema, all Ashkenazi poskim, and the good majority of Sephardi poskim said this was not permissible l'chatchila. You should also learn a bit of musar in that none of those Gedolim felt the need to try to fear monger and raise the spectre of some "ism"(Feminism in your case) to do so.
@Tzadok - My previous points focused on the core feminist goals of this prenup. You're attempting to ignore, suppress, and divert attention from that issue by various means. By making utterly false claims that I can't read Hebrew or English. And by trying to create an impression you're an authoritative rav in Gittin matters, which you are certainly not.
DeleteYou're simply tossing out names of poskim and tossing out halachic terms like kenas, in an attempt to legitimize an ultra-feminist prenup that is certainly rejected by most or all normative Ashkenazi poskim. In fact you have nowhere cited where the Maharik or B"Y advocated enabling the wife to "always instantly win in any dispute with her husband".
The document above doesn't hesitate to use feminist terminology against its opponents - "the imagination of male chauvinists who think that all forms of prenuptial agreements should be unfathomable".
Amazingly, you attempt to silence my "raising a a flag against feminists" by throwing out feminist accusations like "misogynist". Tzadok, your intellectual dishonestly here is obvious to any intelligent person.
My statement that you cannot read Hebrew is based on your utter unwillingness to resort to any Hebrew sources. As well as previous interactions, such as those surrounding Rav Treibitz's lectures where you were absolutely clueless where the text he was citing ended, and where his commentary began.
DeleteMy concern over whether you understand English is based on statements like this:You're simply tossing out names of poskim and tossing out halachic terms like kenas, in an attempt to legitimize an ultra-feminist prenup that is certainly rejected by most or all normative Ashkenazi poskim.
Where you are blatantly misrepresenting my words. I am assuming that you simply lack reading comprehension skills and that you are not being intentionally deceptive in the things that you write.
Terminology such as male chauvinist and misogynist are not by nature feminist. A person does not have to be a feminist to see that someone is a misogynist or a male chauvinist. Though all of these terms are post enlightenment inventions and really have no place in a Torah discussion. What does have a place is whether or not this idea has a basis in halakhic literature(it does, B"Y EH"E 134), and whether or not it is accepted in halakhic literature(it does not Rema EH"E 134:4 in the name of the Rashba).
Your inability to deal with sources is why you need to consistantly resort back to name calling and scare tactics.
If you insist on claiming that I am saying something that I clearly am not saying this is going to be a very circular discussion.
I have to agree with the RamaTz here - it is simply not constructive in debate to just use a set list of insults or pet hate ideology labels, like feminist/MO etc and apply it to every conceivable situation.
DeleteR. Spira -
ReplyDeleteThe prenuptial that you outlined in Section O that you designed to shield the husband from government Get Laws is redundant and unnecessary once the couple sign and implement the prenuptial agreement you outlined in Section Q that is designed to empower the wife to demand and immediately and unconditionally receive a Get regardless whether the husband wants to or not.
In other words, once a couple signs the Section Q prenuptial there is no need, and it is entirely pointless, to also sign the Section O prenuptial.
The reason for this is very simple and obvious. A wife who is party to the Section Q prenuptial has the ability to obtain a Get without resorting to any government Get laws. The Section Q prenuptial is a tool for wives that is far more powerful against her husband than any governmental Get law that she can invoke against her husband.
Therefore if she wants a Get all she needs to do is invoke the provisions of the Section Q prenuptial. The Section Q prenuptial gives her great financial leverage and the ability to invoke great financial punishment against her husband. The government Get laws are also designed to give the wife a financial stick to punish the husband into submission of giving her the Get that she unconditionally demands. But your Section Q prenuptial is more than sufficient in giving her a financial stick to beat her husband into providing her a Get or alternatively pay her punishing economic penalties (even if they go by another name) and your Section Q prenuptial are much harsher against the husband than any of the governmental Get laws.
With a Section Q prenuptial all governmental Get laws are rendered moot and virtually useless and unnecessary for a wife. A Section O prenuptial provides no benefit or protection or any use for the husband as his wife can accomplish everything she seeks against him using the Section Q prenuptial alone without resorting to the Get laws.
The only time a Section O prenuptial would have any teeth and be at all useful is if there is no Section Q prenuptial.
This fact entirely negates your point that the two prenuptials are "a package deal" misapplying the arguments of "lo va-ru'ach Ha-Shem... lo va-ra'ash Ha-Shem... lo va-esh Ha-Shem, ve-achar ha-esh kol demamah dakah" and "kol demamah dakah."
Thank you, R' Legalese, for your erudite reply to me, which raises two important and interrelated claims against me:
ReplyDelete(a) Section O is rendered obsolete by Section Q, such that only Section Q is needed.The time that is saved by ignoring Section O could be better enjoyed by having a Daf Yomi shi'ur at the wedding [-and indeed, recently the Agudath Israel of America has recommended orchestrating a Daf Yomi shi'ur as part of the wedding celebration.]
(b) Section Q imposes financial coercion on the husband that is at least as great as that of the secular government Get Laws.
I will now counter these two claims. Section Q awards the wife a daily allowance comparable to that of Rebecca our Matriarch, which functions only when the wife is in harmony with the husband. So it is rewarding her for behaving kindly toward her husband, recognizing that ladies today are very prestigious [like Rebecca] and deserve to be financially rewarded when they behave kindly toward their husbands. [This could arguably be compared to Rema in Shulchan Arukh Orach Chaim 472:4 that all ladies today are called "chashuvot."] Moreover, on any day that the wife neglects to collect her money that particular day, the allowance for that day is forgiven forever. When the marital harmony dissolves, the wife collects absolutely nothing. So at no time is money taken away from the husband in such a manner to punish him.
By contradistinction, the secular government Get Laws take money away from the husband after marital harmony has dissolved [whereupon according to Torah law the husband owes the wife absolutely nothing, barring the rare hypothetical case that it is demonstrably the husband's fault for abandoning his wife.] Such Get Laws represent financial coercion and will potentially disqualify the resulting sefer keritut. Accordingly, it seems reasonable to formulate two separate prenuptial agreements: one to shield the bride and groom from the Get Laws, and one to reward the bride like Rebecca.
R. Spira -
DeleteWhile I appreciate your response to my critique of your proposal, WADR your comment did not at all address the underlying fundamental point I made regarding the prenuptials you've proposed.
You can try to "sell" your proposal with whatever fancy justifications or terminologies or Biblical analogies that you think will be most marketable. But all your response did was restate nothing more than what you've previously used to describe your "package deal", albeit in fewer words. So let me restate my fundamental point in fewer words as well:
A Section Q prenuptial gives the wife all the tools and power that the New York and Canadian Get Laws give the wife. Plus more. A wife with a Section Q prenuptial will never need to resort or invoke the Get Laws against her husband in a divorce lawsuit or other secular judicial proceeding. The Section Q prenuptial gives her everything plus more than she could have hoped to use the Get Laws to obtain.
My point is a practical and legal one. I do not dispute your contention that utilizing and invoking the Get Laws in a secular divorce proceeding is contrary to Halacha and results in disqualifying the resulting Sefer Kerisus (i.e. a Get Me'usa). Indeed I agree with you on this point. I further do not dispute your contention that the Section Q prenuptial is halachicly viable and its use does not result in disqualifying the resulting Sefer Kerisus. Despite these two points, all the points I made in my earlier comment remain valid and you haven't even disputed the points I made in my above comment.
With a Section Q prenuptial there is no fear of the secular Get Laws being invoked by the wife, as the Section Q prenuptial gives the wife all the power and tools for everything and anything she could have hoped to accomplish using the Get Laws without actually using the Get Laws but rather instead using the provisions of the Section Q prenuptial.
Therefore the Section O prenuptial is redundant, unnecessary, practically useless and most significantly does not provide any benefit or protection for the husband.
And thus there is no diplomatically finessed "package deal" that you've used to describe your combination of the two prenuptials that you've said justified a husband signing away a broad array of his marital rights under the Section Q prenuptial.
At this time I'd like to add an even stronger additional point along the lines of the point I am making. The secular Get Laws are currently only legislated into the code of laws of a small number of jurisdictions. Namely, the Get Laws are only applicable in the State of New York and in the Dominion of Canada. These two jurisdictions, while representing a large number of Jews, cumulatively count only a minority of the legal residencies of worldwide Jewry. You are proposing that the Section Q prenuptial be utilized by worldwide Jewry, including by the majority of worldwide Jewry that are residing outside the State of New York and the Dominion of Canada. As such, you are proposing to give various new and powerful authorities to wives worldwide that they do not currently posses even under the secular laws of the majority of the world. That is, in most of the world Jewish husbands do not even have to fear the risk of having a secular (and unhalachic) Get Law being used against them.
Thus even you recognize that your mistaken description (for the earlier identified reasons) of these two prenuptials being a "package deal" of give and take for both the husband and wife, was never even a plausible explanation for the majority of Jews who do not live in New York and Canada. (And there isn't a benefit even for New York and Canadian husbands for the reasons earlier enumerated.)
Rashis daughters put on tefillin. No they weren't feminists. But women who put on tefillin today are feminist. Poskim in the past who were ok with prenups were not feminists. But those today that advocate prenups are feminists. Context is everything.
ReplyDeleteEmes Lyaakov well point made!! The bottom line is that the Torah is perfect and we are not. Just because something appears unfair, does not mean that it has to be corrected. The Torah often times excludes women from certain things such as giving testimony, such as not obligated in certain mitzvot. SO HERE COME THE FEMINISTS IN THE LATTER 20TH CENTURY AND DEMAND EQUALITY FOR EVERYTHING. This is why you have the women of the wall wanting to wear a Tallis and Tefillin. That is why you have women wanting to coerce a Get, all in the name of equality.The issue with the prenup is that : ITS A SMOKESCREEN! IT GIVES EVERYTHING TO THE WOMAN AND TAKES FROM THE MAN. THE ADVICE HERE FOR MEN IS ; THE BEST PRENUP IS NOT TO SIGN A DOCUMENT BUT TO CAREFULLY EXAMINE THE WOMAN YOU ARE DATING FOR IDEOLOGIES THAT ARE CONTRARY TO TADITIONAL TORAH VALUES THAT WILL LATER BITE YOU , SUCH AS FEMINIST TENDENCIES. IF SHE HAS THOSE VIEWS, STAY CLEAR FROM HER. HOW ABOUT PRENUPS THAT IMPOSE PENALTIES ON THE WOMAN IF SHE GOES TO CIVIL COURT AFTER THE GET? The problem is that courts allow a woman to go to court despite the arbitration agreement, and you cannot prohibit them from going to court. Until you find a balanced agreement, there is no point to a prenup other than to punish the man.
ReplyDeleteWhy were "halakhic" prenups never implemented previously in our long Jewish history by the Tanaim, Amoraim, Geonim, Rishonim and/or Achronim? Are the "modern" contemporary rabbis who are proposing this (and it should be noted they are not a majority of contemporary rabbis nor do they represent the contemporary Gedolei Yisroel) wiser than the Tanaim, Amoraim, Geonim, Rishonim and Achronim? Have these Modern rabbis discovered what the Tanaim, Amoraim, Geonim, Rishonim and Achronim missed all along? Do they c'v view the Tanaim, Amoraim, Geonim, Rishonim and Achronim -- and not to mention the Torah HaKedosha itself -- as misogynists?
ReplyDelete@Tuli - If you're asking what is the view of the Modern rabbis, see the prenup above -
Delete"(every day) give the lady tosefet mezonot of one thousand dollars U.S."
"the wife will always instantly win in any dispute with her husband"
"the imagination of male chauvinists who think that all forms of prenuptial agreements should be unfathomable"
Oops, I'm being a male chauvinist again.
Thank you and ye'yasher kochakhem, R' NMH (Feb. 14, 2:03 a.m.) and R' Legalease (Feb. 16, 2:36 a.m.), for your further illuminating counter-responses to me. Your counter-responses inspired me to look further, and indeed I have found a location where R. Bleich publicly reports that R. Kamenetzky encouraged him to implement his prenuptial agreement: Contemporary Halakhic Problems IV, p. 16. Now we can reason a kal va-chomer: if at that time (when R. Kamenetzky issued his encouragement), when there were no secular government Get Laws that disqualified gittin, and there was no RCA prenuptial agreement that disqualified gittin, nevertheless R. Kamenetzky encouraged R. Bleich to implement a prenuptial agreement that benefits the Jewish wife, then all the more so today.
ReplyDeleteI think one can view R. Kamenetzky's encouragement against the backdrop of R. Joseph Ber Soloveitchik's 1975 speech regarding Kabbalat Ol Malkhut Shamayim as a prerequisite to approaching the agunah question and R. Moshe Feinstein's 1976 responsum on the women's liberation movement [ultimately canonized as Iggerot Mosheh, Orach Chaim IV, no 49], where both of those authorities warn that changing (chas ve-chalilah) the Halakhah to accommodate feminism constitutes heresy. Thus, it seems that R. Kamenetzky regarded it as important if - within the Halakhah itself a means to satisfy the feminist agenda can be located - that it be rendered available, so as to be mekarev libam shel Yisrael la-Avihem she-ba-Shamayim. My essay rises to the challenge identified by R. Kamenetzky.
Regarding R' NMH's important objection that the prenuptial agreement in Section O may not be recognized by the courts, I am relying on two precedents for my effort (viz. Makkot 3b and Contemporary Halakhic Problems IV, p. 236) as well as the general appeal to freedom of religious conscience guaranteed by all constitutional liberal democracies. I concede to R' NMH, though, that I have no law degree, and it is entirely possible that a court will reject my arguments. Ve-nizkeh ve-nich'yeh ve-nir'eh...
"I have found a location where R. Bleich publicly reports that R. Kamenetzky encouraged him to implement his prenuptial agreement: Contemporary Halakhic Problems IV, p. 16."
DeleteHere is the full quote
"Such a Bet Din cannot be established unless it is acceptable to all
sectors of the community. Acceptance would require broad representation
of each of those sectors. Its success would require that litigants feel
compatibility with the dayyanim before whom they appear. Those goals
are probably best attained by establishing a fairly large roster of dayyanim
and permitting litigants to use a limited form of the zablo system, i.e., the
system under which each litigant chooses one member of the tribunal.
Litigants might be permitted to designate the members of the Bet Din
that would hear their case but would be limited in being able to select a
panel of dayyanim only from among the designated list of members of
the national Bet Din. 10 ...."
"10. This approach was suggested to me by the late Rabbi Jacob Kaminetsky,
of blessed memory, in a somewhat different context. Some years ago, in urging adoption of the antenuptial agreement later published in Or ha-Mizrah, Tishri 5750 and in Torah she-be- 'al Peh, vol. XXXI (5750), he recommended one modification of my draft. In order to avoid the procrastination that unfortunately develops in selecting the members of a Bet Din when the parties have recourse to zablo, and in order to establish a single Bet Din acceptable to all of the community, Rabbi Kaminetsky advised that the document provide a list of names and specify that each of the parties may select one of the dayyanim from among he named individuals. "
@Shalom Spira - "it seems that R. Kamenetzky regarded it as important if - within the Halakhah itself a means to satisfy the feminist agenda can be located - that it be rendered available" -
DeleteAre you indicating that one of the goals of your prenup agreement is to satisfy the feminist agenda through halachic means?
Can you please cite an exact statement by R. Kamenetzky that supports finding a halachic means to satisfy the feminist agenda?
Sounds to me from the quote of Rabbi Kaminetzky that he merely approved of that a workable prenup be made available to the public should anyone desire to utilize it. It does not appear that Rabbi Kaminetzky advocated that a prenup be made a standard feature of all Jewish marriages.
DeleteR' yy (Feb. 16, 8:41 a.m.),
ReplyDeleteThank you. You are absolutely correct, and there is no substantive disagreement between us (although perhaps each of us may choose a slightly different semantic emphasis). We both agree that a Jewish lady cannot free herself unilaterally from an already formulated marriage, no matter how displeased the wife is with her husband (barring the rare hypothetical cases of kofin le-garesh, which generally do not arise in contemporary Orthodox Jewish life). We both agree that the feminist enterprise to allow a lady to free herself represents a heretical enterprise (as both R. Soloveitchik and R. Feinstein ruled) and ipso facto excludes its feminist proponents from Orthodox Judaism.
At the same time, R. Kamenetzky encouraged formulating future marriages (mi-kan u-le-haba, without affecting any marriages already formulated) in such a manner as to award the wife with an abundant amount of tosefet mezonot, such that the lady is never in a position to be at the mercy of her husband. This is not freeing a lady who is trapped in a marriage (-which is forbidden as heresy); rather, this is formulating future marriages in such a manner to recognize ladies today as being "nashim chashuvot". It is true that - because the wife will be so wealthy and the husband will be so poor - that in practice the wife will never be trapped. But that is not heresy; that is simply cleverly using the tools of the Oral Torah to "socially engineer" (to employ R' Mike's excellent description in his comment, Feb. 12 at 12:48 a.m.) a result which is pleasing to the feminists. Apparently, R. Kamenetzky felt that this is the wisest course of action, so as to inspire the feminists to return to Orthodox Judaism. The meta-issue here (beyond agunot and feminists) is one of "hal'itehu le-rasha ve-yamot". R. Bleich has a whole chapter on this his recently published Contemporary Halakhic Problems VI (called "The Case of the Poisoned Sandwich"). The idea is that we should try to extend every *reasonable* leniency possible to our brethren to keep them within Orthodox Judaism.
It should also be noted that - because of my essay - I was able to officially contact the Beth Din in my local city of Montreal and ask them to stop writing gittin (pursuant to the Canada Get Law), based on my essay. I feel that employing the prenuptial agreements advocated by my essay will publicize how Canadian and New York gittin can no longer be accepted with equanimity, thereby rescuing the community from error.
"At the same time, R. Kamenetzky encouraged formulating future marriages (mi-kan u-le-haba, without affecting any marriages already formulated) in such a manner as to award the wife with an abundant amount of tosefet mezonot, such that the lady is never in a position to be at the mercy of her husband... apparently, R. Kamenetzky felt that this is the wisest course of action, so as to inspire the feminists to return to Orthodox Judaism."
DeleteThis is false. Rabbi Kaminetzky did not "encourage" this, he merely agreed that a mechanism should exist for those that sought this. He never sought to implement this across Jewish marriages as a standard.
R' EmesLeYaacov,
ReplyDeleteThank you and ye'yasher kochakha for your valuable rejoinder. Yes, pursuant to my previous comment (addressed to R' yy), I am indeed seeking to satisfy the feminist agenda through halakhic means (taking my cue from R. Kamenetzky), but also to expose the disqualified gittin that have already been written based on financial coercion and that need to be recalled. I am proud that I was able to bring this to the attention of the Beth Din of Montreal, thereby (hopefully) being mezakeh et ha-rabim.
I admit that I cannot locate any written statements from R. Kamenetzky to support me. I am relying mi-pi ha-shemu'ah on what R. Bleich reports in the name of R. Kamenetzky.
@Shalom Spira - "I am indeed seeking to satisfy the feminist agenda through halakhic means" - Your honest admission of your goal greatly increases my respect for you, despite the fact that I strongly reject that goal.
DeleteHowever, if you're attempting to implement a non-Jewish ideology (feminism) then perhaps you should understand the nuances of that ideology.
Rabbinic Judaism is clearly a patriarchal legal system.
"Patriarchy is a social system in which males are the primary authority figures central to social organization"
http://en.wikipedia.org/wiki/Patriarchy
However, a primary goal of feminism is to eliminate patriarchy.
"Most forms of feminism characterize patriarchy as an unjust social system that is oppressive to women."
http://en.wikipedia.org/wiki/Feminism
How do you propose to satisfy the feminist agenda without uprooting rabbinic Judaism in the same way Reform/Conservative have done so?
I seriously doubt that the Beth Din of Montreal will change any of its practices, however wrong they are, due to your suggestion.
DeleteHaGaon HRav Avigdor Miller (Awake My Glory):
ReplyDeleteThere cannot be two kings. The marriage relationship is two-fold. 1) The wife is submissive. This is not only Jewish but natural. There can be no harmony when there are two commanders. Without this indispensable condition, the home is disordered. "Arrogance is unbecoming a woman" - Megillah 14B. For a man it is not an ornament, but for a woman it is as if she wore a mustache. 2) The second, but equally essential foundation: a man must always demonstrate respect for his wife. This is "the way of Jewish men that... honor and support their wives in truth" as stated in the Jewish marriage contract. "He honors her more than his own body" - Yevamos 62B, Bava Metzia 59A. He is the captain, but she is the First Mate whose counsel is respected. She cannot be made a doormat, she need not beg for money, she deserves some assistance in the house chores, and the husband sides with her against his kin. He must express frequent appreciation and give words of encouragement, and he should remember his wife from time to time with gifts, big or little. Husband and wife should always say "Please" and "Thank You" and never forget to be always polite to each other.
Before marriage it is imperative to ascertain the young woman's attitude toward feminism and "women's rights" and careerism. It is out of the question to build a Jewish home, or any home whatsoever, if the prospective wife has been tainted with these anti-natural and anti-social preachings. The woman's career and happiness are in her home: absolutely and entirely. Her husband, her children and her home are the expressions of her personality and her Free Will, and they are her chief forms of serving G-d. The modern orthodox "Rebbetzin" with a college degree and a job in secular professions is a misfit even in a non-Jewish home. The ideas of revolt against a husband's authority and the unrealistic dream of equal leadership in the family, lead only to unhappiness and failure, and very frequently to divorce. A Beis Yaakov girl should be wed soon after or before graduation. Every day after she leaves the Beis Yaakov marks another step away from idealism, for the street and the office and the secular school have an unfailing effect which increases from day to day. It is never a simple matter to achieve harmony in the home; effort and wisdom and fear of G-d are required. But with the additional burden of feminism, all problems become aggravated; and like all the unnatural and anti-social affectations of the libertarians this leads only to failure and unhappiness.
R' Avigdor Miller:
Delete"Of course, here and there, there were pockets of frum Jews, but there was a very great movement away from Torah. They were rebelling against the Torah in Europe. The world keeps quiet about it. I saw it. And therefore, it’s not the Germans that we have to worry about. We have to worry about ourselves. Our enemies are our own; we are the real enemies of the Jewish people. The Reformers are the enemies of the Jewish people. The Conservatives are the enemies of the Jewish people. The college people and the academicians, all the Jewish atheists, the Jewish gays, they’re our enemies. There are so many of them……They’re our enemies. And therefore, stop worrying about the Gentiles, to fight back against them. Of course, I say again, if we have an army, we should go to Germany and execute 6 million Germans. Just as a token, it’s a zecher. But the real battle is not against outside enemies; the battle is against inside enemies. "
http://dovbear.blogspot.co.uk/2011/04/rabbi-avigdor-miller-on-germany.html
No Rabbi Miller, the majority of victims of the Holocaust were frum, shomrei mitzvis and Haredim. The reformists and secularists largely escaped, with Germany itself having the lowest number of victims.
Wow, Rav Miller zt"l's holy words resonate so strongly. He could not be more correct. Klal Yisroel really needs a Rav Miller for our own generation.
Delete@Spira:"I admit that I cannot locate any written statements from R. Kamenetzky to support me. I am relying mi-pi ha-shemu'ah on what R. Bleich reports in the name of R. Kamenetzky."
ReplyDeleteYou want to uproot the Jewish marriage because you heard someone say R. Yaakov said that destroying every Jewish husbands' authority and having him live on a knife's edge is good kiruv to radical rebellious women... Spare us your flattery and your tortured explanations. We know exactly what you are..
you've got your finger on the pulse, Mike
ReplyDeleteThank you, R' EmesLeYaacov (Feb. 16, 5:11 p.m.) and R' Mike (Feb. 16, 6:57 p.m.). Yes, you are correct: *most* forms of feminism are incompatible with Orthodox Judaism. But that implies that some forms of feminism are indeed acceptable. Indeed, R. Mordechai Willig refers to the different kinds of feminism in his Nov. 27, 2010 lecture at
ReplyDeletehttp://www.yutorah.org/lectures/lecture.cfm/753159/Rabbi_Mordechai_I_Willig/Women_in_Halacha_#
[first two minutes of lecture].
I think it is clear in this situation that R. Bleich is not alone. The RCA, in its Nov. 20. 2013 statement at http://www.rabbis.org/news/article.cfm?id=105781 , claims that the formulation of prenuptial agreements is a worthy public policy. How did the RCA reach this conclusion? Presumably, the RCA is taking its cue from R. Kamenetzky. [Just the RCA - be-mechilat kevod Torato - errs on the details, as demonstrated in Section A of my essay. Also, the RCA - be-mechilat kevod Torato - is confused when it claims that a husband withholding a get is committing "domenstic abuse". What happened here is that the RCA conflated the words of R. Kamenetzky with the "sevara gedolah" of R. Mosheh Feinstein in Iggerot Mosheh, Even ha-Ezer III, no. 44. But these are two separate concepts that cannot be conflated (-see Section K of my essay for a careful explanation of what R. Feinstein's "sevara gedolah" means and what his "sevara gedolah" cannot mean). The truth is - as HKB"H told Mosheh Rabbeinu at Mount Sinai - that there is nothing abusive in a Jewish husband upholding the sanctity of marriage and refusing to grant his wife a get, in most circumstances. On the contrary, one who calls the husband "abusive" is being motzi shem ra.]
Moreover, as R' CV (Feb. 16, 6:09 p.m.) observes, we are facing a challenge to convince batei din to refrain from writing gittin pesulin. It seems to me the best way to do so is for all future marriages to adopt my prenuptial agreement, which publicizes that coerced gittin (on account of government secular Get Laws and on account of the RCA prenuptial agreement) are disqualified, while gittin that flow from R. Kamenetzky's encouragement (as diamond-polished by this student) are kosher. Thus, it is a situation of "revach ve-hatzalah ya'amod la-Yehudim mi-makom acher" (to borrow the expression from Esther 4:14), through the vehicle of my prenuptial agreement.
The RCA is not representative of Orthodoxy. They only purport to represent the left-wing of Orthodoxy, that labels itself as "Modern" Orthodoxy, not the much larger Orthodox world outside of this "MO" worldview.
DeleteAs I mentioned earlier above, MO is only 29% of the Orthodox (per Pew, and going down, with it being only 19% of Orthodox 30 years old and younger).
And as many have noted, the general consensus of the Orthodox Rabbinical world (such as the Agudas Yisroel and their Moetzes) is that prenuptials are a bad idea.
I don't think it is a good idea to implement a bad idea on the basis that the bad idea is not as bad as a beis din issuing gittin pesulin. Stop the gittin pesulin without resorting to another (albeit less) bad idea.
To elaborate why I feel it is appropriate for me to invoke "revach ve-hatzalah ya'amod la-Yehudim mi-makom acher": R. Zelig Pliskin, in his book Love Your Neighbour (Aish HaTorah Publications, 1977), commenting on Exodus 18:21, professes (based on R. Meir Shapiro) that "Rather than merely finding fault with what others do, we should offer constructive suggestions." Thus, while it is essential to identify that the gittin that are written due to financial coercion are disqualified, as my essay indeed identifies, it is also helpful to offer constructive suggestions how to prevent such gittin from arising in the future, as my essay also does. It seems to me that R. Kamenetzky's orally reported guidance brightens the path in this respect.
ReplyDeleteIt is absolutely correct and righteous to point out when gittin pesulin are being propagated and like you said it is helpful to offer constructive suggestions how to prevent such gittin from arising in the future, the suggestion you are offering (the prenup) is the wrong and unsuitable response.
DeleteIt seems to me that the comments disagreeing with your interpretation of R. Kamenetzky's orally reported guidance is persuasive. Whereas R. Kamenetzky desired that such a document be made available for use instead of a halachicly treif prenup (such as the BDAs) that an engaged couple may have otherwise utilized, nowhere has R. Kamenetzky desired to institute a prenup as a recommended guidance to be used for all marriages.
Thank you and ye'yasher kochakha, R' Gavriel Hochfore. You raise an interesting question regarding the proportional representation of Chakhmei Yisrael that is enjoyed by the RCA and by the Agudath Israel. [I agree with you, as I wrote earlier (Feb. 12, 4:09 p.m.), that it is impossible to divide Orthodox Jewry into modern vs. non-modern camps. All Orthodox Judaism, by definition, is "modern" and true, as per Rashi to Exodus 19:1. Thus, in principle, the RCA and Agudath Israel could easily become "agudah achat la-asot Retzon'kha be-levav shalem", as we say in the High Holiday liturgy.]
DeleteFrom Iggerot Mosheh, Yoreh De'ah III, no. 43, it sounds to me like R. Moshe Feinstein viewed R. Joseph Ber Soloveitchik and himself as the two co-captains of Klal Yisrael, which would presumably translate into the RCA representing 50% of Chakhmei Yisrael and the Agudath Israel representing 50% of Chakhmei Yisrael. However, it is possible that the proportional representation has evolved in the four decades that have elapsed since that responsum was published. On the other hand, the recent historic agreement between the RCA and the Chief Rabbinate of Israel (announced at http://www.rabbis.org/news/article.cfm?id=105787 ), seems to suggest to my ears that the RCA enjoys a respectable proportional representation of Chakhmei Yisrael.
Rav Shimon Schwab ZT"L, Rav of the Torah Im Derech Eretz Congregation Adas Jeshurun in Washington Heights:
Delete"And now we address ourselves to our chaveirim bedeah, our achim bemitzvos of the Orthodox Rabbinate of America [RCA]. Ad masai? How long do you want to remain a branch, without becoming part of the tree? . . . We say to our achim b'mitzvos, "have Rachmonus with yourselves, and lemaan Hashem, part company with those who have given obscene semichah to to'evah clergymen" . . . Have rachmonus with yourselves, and break off your professional relationship with those who, for instance, consider Yishu HaNotzri merely a failed moshiach . . .We implore you . . . to part company with those gravediggers of Torah. I know it is a painful subject but it is unavoidable . . . We call on you to join us, the true Modern Orthodoxy [Rav Schwab is referring to previous statements of his that MO is today outdated and "anything but modern"], which is a generation of sincere mevakshei Hashem".
(Selected Essays, pp. 90-91)
Thank you and ye'yasher kochakha, R' Rosh Yeshiva. R. Schwab is critiquing the RCA for being part of the Synagogue Council of America. This was a significant dispute between R. Moshe Feinstein and R. Joseph Ber Soloveitchik. The Agudath Israel followed R. Feinstein and the RCA followed R. Soloveitchik. R. Bleich himself supports R. Feinstein; see his chapter entitled "Parameters and Limits of Communal Unity" in Contemporary Halakhic Problems III. [Interestingly, R. Bleich neglects to mention that he is opposing R. Soloveitchik, although perhaps - writing in the milieu of Yeshivat Rabbeinu Yitzchak Elchanan - it was so self-evident that he was doing so that he saw no need to explicitly mention it.]
ReplyDeleteR. Feinstein's responsum prohibiting participation in the SCA is found in the posthumously published Iggerot Mosheh, Yoreh De'ah V, no. 16. R. Feinstein's language is quite powerful, he terms the SCA "ma'aseh Satan al yedei mesitim u-medichim". It is interesting, though, that R. Feinstein never published this responsum during his lifetime [-perhaps because he recognized that R. Naftali Zvi Yehudah Berln, Shu"t Meshiv Davar I, no. 44, might arguably be interpreted to support the countervailing opinion of R. Soloveitchik? Tzarikh iyun...]
In any event, Barukh Ha-Shem, the RCA has performed teshuvah, and no longer participates in SCA. Thus, the question becomes, given that the RCA has repented, can we now accept the RCA's recommendation to employ a kosher prenuptial agreement (-not the RCA's disqualified prenuptial agreement, rather the kosher prenuptial agreement of Section Q)? Ultimately, as R' Gavriel Hochfore and other talmidei chakhamim here have indicated, each mesader kiddushin will have to decide for himself.
Of course, when I write in my previous comment that "the RCA has performed teshuvah", I am advancing an argument in the rhetorical form of le-divreihem de-Rabbanan ka'amar lehu (to borrow the expression from Beitzah 3b). Namely, the RCA holds that it was correct (following the ruling of R. Soloveitchik) to participate in the SCA. But even if one disagrees (based on the opposing ruling of R. Feinstein), now we can rest assured in good conscience that the situation has been rectified aliba de-khulei alma.
ReplyDeleteAlso of relevance in regard to the machaloket le-Shem Shamayim vis-a-vis the SCA is another responsum published in the same posthumous volume, viz. Iggerot Mosheh, Yoreh De'ah V, no. 38, which is actually addressed to the very same interlocutor as the SCA responsum (viz. R. Jacob Dardak). The responsum addresses the fact pattern of a heterodox rabbi who has enrolled his daughter in an Orthodox school. The daughter is constantly crying when she hears the teacher explain that the heterodox are "resha'im"; after all, this affects her father's reputation. On the other hand, the teacher - while sensitive to the feelings of the heterodox rabbi's daughter - believes that it is valuable to publicize the "resha'im" appellation, to keep other girls in the class Orthodox. Thus, R. Feinstein is presented with the question of weighing the pedagogical needs of the daughter of the heterodox rabbi vs. the pedagogical needs of all her classmates.
ReplyDeleteR. Feinstein answers that there is no need for the teacher to excessively announce the "resha'im" status of the heterodox. Pride in Orthodoxy can be positively instilled in the class of girls by emphasizing how the same Written and Oral Torah was revealed by HKB"H to Mosheh Rabbeinu for all of Klal Yisrael, and that the mesorah from Mosheh Rabbeinu as crystallized in Shas and poskim has been conveyed by shimush talmidei chakhamim through an eternal chain of Orthodox transmission. There is no need, opines R. Feinstein, to denigrate the heterodox movements. Even on the rare occasions that one must refer to the heterodox as "resha'im", continues R. Feinstein, the teacher should carefully elucidate that the word is being used in a technical halakhic sense (in terms of disqualification for purposes of testimony) but does not reflect upon the lack of righteousness of heterodox individuals. The heterodox are not (chas ve-chalilah) "resha'im" in the same sense as "Haman ha-Rasha" or "Antiokhus ha-Rasha".
Thus, in this responsum, one can see a conciliatory approach of R. Feinstein toward bringing the heterodox closer to Halakhah, which is really much the same as R. Soloveitchik's approach in authorizing participation in the SCA. Obviously, the issues are not exactly identical; there is still a machaloket ha-poskim here between R. Feinstein and R. Soloveitchik. But the sentiments of these two luminaries are not far apart. Perhaps this further explains why R. Feinstein did not see any need to publish in his lifetime an Iggerot Mosheh responsum regarding the SCA.
Sorry... a correction to my previous comment is needed. Please allow me to rephrase the sentence in the 2nd paragraph of my previous comment
ReplyDelete"There is no need, opines R. Feinstein, to denigrate the heterodox movements."
as
"There is no need, opines R. Feinstein, to excessively focus on denigrating the heterodox movements."
The reason for this reformulation of my sentence is that R. Feinstein does direct the teacher to identify the heterodox movements as being false and heretical. Where R. Feinstein is conciliatory is in R. Feinstein's directive to avoid employing the term "resha'im" unless absolutely necessary, and even then in explaining that to the class that "resha'im" refers purely to a technical halakhic disqualification rather than to a moral opprobrium.]
Thank you.
Finally, I would like to take the opportunity to complete a potential blank in my essay (as it presently stands, in its fourth edition). Namely, in Section S, I argue that one cannot employ the Device of the Sages of Spain as a prenuptial agreement, based on the consideration that the Device of the Sages of Spain will not work when the groom is "anoose". Since the groom is "anoose" at the time the prenuptial agreement is formulated (as he cannot possibly divorce a bride to whom he is not married yet), the Device of the Sages of Spain will not take effect.
ReplyDeleteAfter the fourth edition of my essay was published, the counter-objection was brought to my attention that although it is true that the groom is "anoose" when he writes the Device of the Sages of Spain, the "oness" subsequently disappears after he offers kiddushin to the bride (since now the groom is capable of subsequently offering a sefer keritut to the bride), and perhaps this should suddenly activate the validity of the Device of the Sages of Spain.
Now, I am not sure this counter-objection is correct. Since the Device of the Sages of Spain was originally disqualified, who says it can subsequently become kosherized? But I admit that I do not know for sure, so let us assume, for argument's sake, that I am wrong and that - in fact - a Device of the Sages of Spain can indeed subsequently take effect even if it was originally disqualified. I would still argue that the Device of the Sages of Spain will not work as a prenuptial agreement for the following reason.
The Device of the Sages of Spain only works if the husband is not "anoose". This means, in the context of the prenuptial agreement, that he must be capable of delivering a kosher sefer keritut to his wife. The sefer keritut will only be kosher assuming there is no financial coercion on the husband. There is no financial coercion on the husband only assuming the financial charge on the husband is independently legitimate. The financial charge on the husband is only independently legitimate assuming the Device of the Sages of Spain took effect. [And the argument continues in circles forever.] This circular reasoning is called a situation of "gito ve-yado ba'im ke-echad" (see Encylcopedia Talmudit, s.v. "ba'im ke-echad") and it seems to me that some poskim refuse to recognize "ba'im ke-echad" in this kind of situation..[See footnote 26 and accompanying text of that Encyclopedia entry.] Hence, it seems to me that kim li will exempt the husband from paying. I welcome others to confirm/challenge my reasoning. Todah rabbah.
Update: Thanks to the excellent guidance I was given by readers here, the prenuptial agreement has been updated to a fifth edition (visible now on screen). I corrected Section S regarding the Device of the Sages of Spain by incorporating he "gito ve-yado ba'in ke-echad" analysis. Plus, I added Section T, devoted to R. Henkin's tripartite prenuptial agreement. Thank you everyone, and le-shanah tovah tikatevu ve-techatemu, le-alter le-chaim tovim u-le-shalom, be-sifran shel tzaddikim gemurim.
ReplyDeleteShalom
Can you provide a general comparison of what changed from the previous terms to the new terms?
ReplyDeleteYe'yasher kochakha, R' Moe Ginsburg, for the question. The general terms of the prenuptial agreement are the same. The peripheral changes are to the argument against the Device of the Sages of Spain (Section S) and the prenuptial agreement of R. Henkin (Section T). I also added a reference to R. Kook's responsa in note 5, which I think will help explain the whole "agunah" subject to the nations of the world.
ReplyDeleteSomething truly interesting - which only materialized after this fifth edition was published - was how on Shabbat, Parashat Ekev, a group of citizens in West Point, Monrovia, Liberia stormed a potentially infected Ebola clinic where suspected Ebola patients were being quarantined. The group honestly believed it was doing the quarantined patients a favor. While every Jew obviously davens for the welfare of all the citizens of West Point, and that anyone who is infected with Ebola should be blessed with a refu'ah shelemah, this episode also can serve as a valuable metaphor and lesson for managing the agunah question.
Namely, if a community will apply unauthorized financial coercion on a husband to divorce his chained wife, the community may honestly believe that it is doing the agunah a favor, but the community will actually be exacerbating her tragedy, since the sefer keritut she will received may be disqualified and hence useless. On the other hand, with my prenuptial agreement proposal, all such problems are solved.
Thank you for taking the time to publish this information very useful!
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