Monday, March 3, 2014

A prenup undermines a marriage before it has even begun

A friend of mine, quite a distinguished lawyer, takes the view that marriage ceased to make sense after no-fault divorces came in. What, he says sternly, is the point of a contract when there’s no sanction if you break it? Well, quite.

But if no-fault divorce pretty well invalidates marriage after the event, prenups do quite a good job of undermining it beforehand. The point of marriage is that it’s meant to be a lifetime affair – the hint being in the ‘til death do us part’ bit – and the point of prenups is that they make provision for the thing ending before it even gets underway. You’re putting your assets out of the reach of the spouse before you’ve got round to endowing her with all your worldly goods, if the Anglican service is your bag. [...]

So far as the case against it goes, I can’t myself improve on the remarks of the Bishop of Shrewsbury last week,[...]
‘Our society would be proposing to couples seeking marriage that they prepare their own divorce settlement before making the life-long promises of marriage. 
‘It is a legal provision which would surely empty the words of the marriage promise “for better for worse… to love and to cherish till death do we part” of all meaning.

‘Pre-nuptial agreements would render these promises provisional by the legal preparations which anticipate divorce.
‘We must ask ourselves, what message does this send to couples considering marriage? What message does this send to the young at a moment when the institution of marriage stands at such a historically, low ebb.’


  1. saying that "no fault divorce" means no sanctions can only be said by someone who never got divorced.

  2. So you're suggesting that we end the psychologically problematic practice (according to this article's author) of the ketubah?

    1. The Kesuba is mostly a contract on how to behave during marriage much more than a "prenup".

    2. No, the Kesuba is very much a prenup. The difference is that it is already integrated into Halacha and therefore does not make people think twice when you sign it. Whereas with modern prenups, if the couple gives the impression of being hopelessly in love, and then one of the partners says, "honey, maybe we should do a prenup to be safe," all of a sudden, the other partner says, "what do you mean, you are going into this with the possibility of getting divorced one day?" It is like someone just dumped a bucket of freezing cold water on them.
      The new suggested prenups are the same, because they are not officially required. That's just the way it is.

    3. the ketuba today in America is worthless. the ex wife is told by the bet din to waive her ketuba rights as part of the get. (according to rav ovadya yosef z"l, its only worth about $58; his determination of the value of "unalloyed silver".)

      the whole masechet kiddushin and ketubot fly out the window, since, in practice, there is no concept of nichsei tzon barzel, nichsei mlug, etc in how assets are divided post marriage (and I mean post death, too.)

      rewriting (or rather, customizing) the ketuba as a pre nup (which was often done throughout the ages) would prob be a better idea.

    4. What is nichsei tzon barzel and nichsei mlug?

    5. Nat,
      The goal for many is to integrate the prenup into the marraige process as much as the ketubah. In the MO world, this is almost the case. Many rabbanim insist on it and it is signed at the same time as the ketuba without much discussion from the parties.
      The best practice is to go back to the Sephardic custom of actually negotiating the Ketubah and making it a real document. That way you can deal with the divorce issues from within the halachic process.

    6. James: The prenup is only used in a minority of MO marriages.

    7. CV: Incorrect. At least in NY, all of the major synagogue rabbanim and YU Roshei Yeshiva use it. That included the major MO synagogues in NYC, Riverdale, Teaneck, Engelwood, Five Towns and Queens.

    8. James: When was this the Sephardic custom? When the Sephardim still spoke Ladino?

    9. James: I do not believe you are correct about that, but even moreso the YU RYs and the rabbis of the major MO synagogues in NYC do not perform a majority of MO weddings.

    10. Nat, I do not speak of an ancient minhag. It was the minhag throughout many sephardic communities and it is a practice that goes back millenia. They practiced this until very recently. Nowadays most batei din have the woman waive her rights as part of a negotiated settlement so the ketubah loses its force so in America noone really negotiates it anymore. But in Israel, they do.
      The point is that the ketubah was never like shofar or tefillin. It was a contract. One of the Israeli universities (I think HU) has a database of ketubot from various lands. You can see the practice in place well into the 20th century. The man sometimes, but not always, agreed not to take another wife. There is alot of interesting stuff in the teshuvot as well but it has been years since I studied this.
      Also, very few Sephardim spoke Ladino. The majority spoke a Jewish version of Arabic, much like the Ashkenazim spoke a Jewish version of old German (Yiddish). There were never many major sefarim or teshuvot written in Ladino.
      CV, I think you are incorrect. The majority of weddings by those attending the major MO shuls are performed by MO rabbis. Same thing with YU. Almost everyone in the MO communities on the the UES (KJ and Fifth Avenue Synagogue) and the UWS (LSS, the Jewish Center, etc.) use it. The Rabbanim in Teaneck and Engelwood wont perform a wedding without it. Just call up Rabbis Golding of ahavath Torah and Rabbi Pruzansky. In Riverdale, both Rabbis Weiss and Rosenblatt use the pre-nup. Which MO rabbanim dont use it? Rabbi Bleich? He isnt really MO and doesnt do many weddings.

    11. Most MO rabbis that use it don't force the grooms and brides to sign it if they decline.

      And most MO grooms and brides don't sign it even if the rabbi is a supporter of it.

    12. if the couple / groom don't want to sign, NO MO rabbi will decline to perform the chuppa vekiddushin, even rabbis p and g (and w, who "wrote" the prenup.) if you call them, of course they'll deny it. but the forward quoted them as saying they wont force the issue. I guess they don't want to pass up on the $500 (I dont know how much they charge today, but that was the fee in my time. note that rabbi p's contract with his shul forbids him from charging for performing chuppa vekiddushin, but I assume that applies to synagogue members only.)

      if there is another prenup to protect other asetts, etc, lawyers will advise against signing the rca pre nup, cause it has the potential to interfere with the lawyer's prenup.

      as for sfardim (and ashkenazim in Israel) they can (and do) customize the prenup as they wish. instead of 200 / 100 zuz they say a few hundred thousand dollars (a friend of mine, still happily married, said a few million shekel "tzamud". the rav said you cant do that, cause you're making a joke of the ketubah (which I guess they have no problems with in america). I later found out the husband and wife were both independently wealthy, and could have afforded it. but that's another story.)

      sfardim often include a clause that the husband cannot take a second wife. that clause is really worthless, cause taking a second wife under sfardi halacha, requires consent of the first wife either way, and the wife can waive anything in the ketuba (onah, clothing, support, etc) (except she cant waive the minimum ketuba amount of 100 zuz). (one feminist ashkenaz rav doing a sfardi ketuba wrote that clause as he can only take a second wife if she doesnt produce children within 20 years, I was at their child's brit, a year later, so it became irrelevant.)

    13. Thanks MMhY. I am not sure what most rabbanim would do if one party would refuse to sign. I know only that most do not refuse and its use is somewhat standard in MO weddings.

      As for Sefardim in Israel, my original point was only to highlight that the ketubah is a negotiated contract and not just a ritual. I claimed that was the practice in the past and is still the practice in some places.

    14. "(which I guess they have no problems with in america)" meaning the ketubah is a joke in america.

  3. I don't think that it is a good idea to scare people off prenups. It would be better to make them more widespread, so that people would not read any bad omen into it.

    If you hear all those commentators here who are not happy with the civil divorce settlement they got and therefore lash out against feminism: they would have been well served by a prenup that determines their obligtions and rights in the case of divorce.

    the reason why no-fault divorce was introduced is
    a) because it reflects a reality (that couples grow apart without particular fault of any party)

    b) because finding the culprit for divorce entailed ugly mud-slinging that was quite destructive, especially for the children if any were involved.

    furthermore, I think that anti-feminist commentators on this blog would have been well served with more feminist wives, i.e. wives who do not think that the burden of providing for the family falls solely on the man.

    As for those commentators who let their wife provide for them over 30 years and then are astonished that she is not satisfied with the deal and demands a divorce after the children are out of the house, they are pashut navalim, and not even bir'shut ha torah...

    1. The RCA-type prenups only benefit the wife and not the husband. So your point is wrong as the husband can still be victimized by the wife in civil court even with the prenup. She can take him to the cleaners, take his house, his money, full custody of the children, etc.

  4. This makes no sense. I am surprised it was shared here. We make sure to protect Jewish women in the event of marriage dissolution. The kesubah is a pre-nup. Are you suggesting that mortgaging our his property for his wife is sending "a bad message"? Or just the new pre-nup?

  5. To conflate the presise of this article with a kesuba: the kesuba itself is just a document outlining a financial arrangement between the husband and wife. So in that context a prenup is simply an addendum to an already-existing financial arrangement. Why the big hullabaloo? If the kesuba were to talk of the love, devotion, dedication and and affection between the two parties (till-death-do-them-part etc.) this article would be relevant to the kesuba. But none of that exists in the kesuba, so this article seems quite unrelated at some level.

  6. By the same logic, one could say "what's the point of marriage if a man can terminate it with a get."

    Judaism does have no-fault divorce of sorts. A man can give a get for no reason.

    ben dov

    1. ben dov:

      Rabbeinu Gershom ended no-fault divorce 1,000 years ago.

      Neither a husband nor a wife cannot demand a Get and receive one if their spouse wishes to remain married to them.

    2. Not sure you refuted no-fault divorce. You refuted no-consent divorce.

      ben dov

    3. ben dov:

      Considering Rabbeinu Gershom's Cherem on divorces,

      If there's no consent but there is fault, a divorce can be obtained against the other spouse's will.

      If there's no consent and there is no fault either, a divorce cannot be obtained against the other spouse's will.

    4. Judaism predates R. Gershom, and even afterwards was not universally accepted. So we should not dismiss no fault divorce as alien to Jewsh values.

      And my basic kushya remains: if prenup undermines marriage, why doesn't gittin. In both cases there is a way out of what is supposedly a permanent commitment.

      ben dov

    5. ben dov:

      1. Rabbeinu Gershom is absolutely binding upon all of Ashkenazic Jewry. Period.

      2. No fault divorce in Judaism, even before Rabbeinu Gershom, was only one-way. A husband could divorce his wife at will, with no fault. The wife certainly could not do the same.

      3. Both before and since Rabbeinu Gershom the husband has the right to insist the marriage continue even if his wife wants out. All Rabbeinu Gershom did was, effectively, extend this same right to the wife.

      4. Marriage is *not* a permanent commitment. Hence Hilchos Gittin and an entire Mesechtas Gittinin in Shas.

      5. That being said, even though it isn't permanent in the strictest sense of the term, marriage *is* binding and intentionally difficult to leave. And thus there should be made no new additional mechanisms that make marriage less binding and more disposable. It must be made as binding and as permanent as possible, even if there will always be -- and must always be -- a method to leave it in extreme circumstances that require it.

      And a prenup undermines marriage and makes it more disposable - both psychologically and practically.

  7. The characterization of no-fault divorce as a contract with no consequences for breaking it especially interesting because in American law "efficient breach" of a contract is generally not seen as a moral issue. The law doesn't want you to keep supplying widgets at the price you promised; it just wants you to only stop supplying them when it's more efficient to stop than to continue. The implication for marriage would be that it's great up to a point, but when an alternative comes up that is better, you should take it without being subject to opprobrium.

  8. legally speaking, a pre nup is a form of financial planning. most (?all?) states require that a spouse inherits 50% - 66% of a spouse's assets, and this cannot be changed by a will, unless the other spouse consents (via a pre nup.)

    so a spouse who wants to protect inheritance of children from a first marriage must do a prenup. basic asset protection.

    this is the real purpose if a prenup.

    1. Legally in the U.S., a spouse can give his own assets away to anyone he wants to in his will (even if there was no prenup or other agreement with the spouse). You are referring only to "joint assets".

    2. a spouse can "gift" (or sell) assets during his / her lifetime without restriction, as AM states. at death, it becomes an inheritance issue subject to the 50% - 66% limits. america doesnt recognize "schiv me-rah", so thats not an issue.

      it used to be all real estate needed wife's permission to sell (in new york; n jersey still has some sort of restriction; not familiar with details, but all nj deeds recite "john smith and jane smith, his wife", as opposed to ny, whch recites "john and jane doe" who may not be husband and wife), till the 1960s. i had a title objection at a closing not so long ago citing no permission to sell dating back to the 60s on a previous deed.

  9. interestingly, the catholic church considers a prenup to mean the couple were not committed to the marriage, rendering the marriage void, and children illegitimate, (meaning implications of the children that are not relevant to us jews.)

    1. Not in any way relevant, because the catholic do not allow for the possibility of divorce, whereas we assuredly do.

    2. snag -- yes relevant to cathoilcs, as they use it as a rationalization for their annulments.

  10. the problem with the rca pre nup is that it sends all issues to the rca, not to a fair bet din. if the feminists are really interested in aguna protection, they would specify another bet din, or offer a choice of batei din.

  11. I agree that we should take action to prevent Jewish women from becoming agunot.

    But something bothers me about the pre-marriage agreement:
    It is a one-sided document designed to help the women,
    without doing anything to help the men.

    For example:

    The pre-marriage agreement penalizes husbands who refuse to give Jewish religious divorces (gittin) to their wives, but does not penalize wives who refuse to accept Jewish religious divorces (gittin) from their husbands.

    I want the pre-marriage agreement to include a clause prohibiting the wives from refusing to accept gittin. If she violates this clause, then she will be fined.

    I want the pre-marriage agreement to include a clause prohibiting the wives
    from saying or doing things to make the children hate or disrespect their
    fathers (which is a big violation of Torah law anyway), even if the marriage
    ends in divorce. If she violates this clause, then she will be fined.

    I want the pre-marriage agreement to include a clause prohibiting the wives
    from spreading rumors against their husbands (which is a big violation of
    Torah law anyway), even if the marriage ends in divorce. If she violates
    this clause, then she will be fined.

    The ketubah is one-sided document designed to help the women,
    without doing anything to help the men; the last thing we need is another
    one-sided agreement designed to help the women, without doing anything
    to help the men, especially considering the one-sided American divorce
    courts that usually give the women everything they want at the expense
    of the men.

    What about the Heter Meah Rabonim?

    If one out of three Orthodox Rabbis will sign a Heter Meah Rabonim,
    then a Jewish husband must approach 300 Orthodox Rabbis to gather the
    100 signatures he needs to divorce his wife who refuses to accept a get.

    If one out of seven Orthodox Rabbis will sign a Heter Meah Rabonim,
    then a Jewish husband must approach 700 Orthodox Rabbis to gather the
    100 signatures he needs to divorce his wife who refuses to accept a get.

    What if the husband does not have the time or the money or the strength
    to present his case to 300 Orthodox Rabbis or 500 Orthodox Rabbis or
    750 Orthodox Rabbis?

    If the husband lives in a remote area where there are few Rabbis,
    like Montana or Arizona, then gathering the signatures will involve
    considerable travel and time and expense. The husband would
    need to make a multi-month visit to New York City or Jerusalem.
    This means taking time away from work plus airfare and hotel expenses.

    1. A heter meah rabbonim is extremely difficult to obtain, and prohibitively expensive, even in NYC which is a major Orthodox town.

    2. actually, a heter is only a few thousand dollars (four figures). and being a major orthodox town is irrelevant (you anyway need signatures from three diff countries.)

      the major problem with a heter is not necessarily cost
      (which was the original purpose of making it difficult / cumbersome), or recognition, but that potential marriage partners see such a potential groom as a problem case. and shadchanim see it as an even bigger problem case (strategy -- dont tell the shadchan). of course, $ solves all problems.

  12. This article has some very interesting commentary from Paul Rahe at Rahe, a Catholic, is a historian, a classicist and expert on the intellectual underpinnings of the U.S. Constitution. He is a professor at Hillsdale College in the U.S.

    "If I do not regard same-sex civil marriage as a great threat to the institution, it is because I think that we lost sight of what marriage is all about quite some time ago.

    Here is something further to chew on. No-fault divorce had its origins in the early 1950s in Oklahoma —"the buckle on the Bible belt" — and its chief advocates were Baptist ministers who feared that making divorce awkward and difficult would promote that worst of all evils — drum roll, please: fornication.

    What resulted was a system of serial civil monogamy. When I left Oklahoma for Hillsdale seven years ago, Oklahoma ranked first in the nation in divorce — not because Oklahomans were especially given to fornication and adultery, but because they were especially given to what we now mistakenly think of as marriage. Those who merely shack up never end up in divorce court.

    The last time I checked, however, the Baptist ministers in Oklahoma were beginning to have doubts as to whether serial monogamy is the best response to Wanderlust, and they were talking about introducing something akin to the pre-Cana conferences required of Catholics who want to get married in the Church. Having gone through these conferences when I was preparing to marry the woman who became the mother of my four children, I can say that we were forced to confront all of the practical questions singled out in the quotea above — and, let me add, it was a damned good thing. Erotic longing may be necessary for forming a lasting marriage, but it is far from sufficient.

    One final comment. In ancient Greece and Rome, the marriage ceremony (which had legal force) consisted of an agreement between the bride's father and the prospective husband — in which the former said to the latter, "I give you this woman for the procreation of legitimate children." This is surely not the entire story. There is a reason why the Christian Church shoved the bride's father aside and grounded marriage in a covenant between husband and wife. But the the logic underpinning pagan Greek and Roman practice is, I believe, an essential part of the story, and all of the Christian churches used to be in agreement in this regard (along with Jews and Muslims of every stripe). To this day, Catholic priests refuse to marry a young man and a young woman unwilling to declare that they are open to having children."

  13. The above, plus some interesting comments, is at this link:

    As is an excellent follow on from Professor Rahe:

    "In my post yesterday, I deliberately restricted my purview to civil marriage. My reason for doing so was that, last year or the year before, I attended a conference on marriage at Brigham Young University; and, both from the reading assigned and the discussion, I got a good sense of what Judaism, the various Christian sects, and Mormonism have in common in their teaching about religion, and I was made aware of some of the differences. (For the record, the best book I read dealing with the Catholics and the Protestants is From Sacrament to Contract: Marriage, Religion, and Law in the Western Tradition, which was written by my friend John Witte).

    What these monotheistic religious traditions have in common, let me add, they have in common also with the pagan Greeks and Romans and with the pagan peoples of ancient Mesopotamia (whose thinking is reflected in the ordinances pertaining to marriage and divorce found in the Code of Hammurabi, which reflects a tradition going back as much as a millennium of Sumerian and Akkadian case law). That something in common is the emphasis on the procreation and rearing of children.

    None of these societies made any provision for same-sex marriage — which is extremely telling, given the fact that pederasty was a common practice throughout ancient Greece and achieved in some cities a measure of legal recognition (mainly because, like marriage, it served a public purpose — in this case, by reinforcing solidarity between men situated alongside one another in the battle line).


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