Volume 32 Number 21
Produced: Mon May 8 6:16:31 US/Eastern 2000
Subjects Discussed In This Issue:
Administrivia - Prenuptial Agreements
[A.J.Gilboa]
Kosher Post Dated Get (3)
[David Cohen, Gershon Dubin, Rose Landowne]
Prenuptial Agreement (6)
[Howard Jachter, Michael J Broyde, Joseph Tabory, Isaac A
Zlochower, Seth Lebowitz, Joel Rich]
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From: A.J.Gilboa <bfgilboa@...>
Date: Mon, 01 May 2000 15:33:40 -0700
Subject: Administrivia - Prenuptial Agreements
> I have attached an essay that I have written on the topic of
> halachically approved prenuptial agreements that will be included in my
> forthcoming book (co-authored with Ezra Frazer) to be entitled "Shades
> of Gray - Issues in Contemporary Halacha".
I am interested in reading the essay but I didn't get the attached file
referred to above. Was this an oversight?
[My oversight in explaining what I did. The essay is located on the
mail-jewish Home Page (http://www.mail-jewish.org/) in the New Additions
/ New Articles section. It is a Microsoft Word article. I guess I should
get the Adobe Acrobat publisher software to translate it into Adobe
format. If someone who has the software can that and email it to me I
will put that format up as well for those who cannot read a Microsift
Word document. Mod.]
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From: David Cohen <bdcohen@...>
Date: Thu, 4 May 2000 09:00:13 -0400
Subject: Kosher Post Dated Get
Wouldn't a post dated get be in valid if the couple had marital
relations after the get was written? I believe that the get would be
called a "get yashan" (old get) and be invalid. I have been called upon
to be part of a beit din for the delivery of a get and one of the
standard questions asked of the recipient wife is to ascertain that
there was no resumption of relations with her husband since the date of
the get.
David I. Cohen
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From: Gershon Dubin <gershon.dubin@...>
Date: Fri, 5 May 2000 06:52:59 -0400
Subject: Kosher Post Dated Get
<<A prenup document would not solve the the above
husband-incapable-of-divorcing wife's agunah situation. OTOH, the
implication is that some sort of "post-dated" get would. Does
anyone know of such a "kosher" post-dated get that would free an agunah
from a husband who is physically incapable of giving a divorce?>>
The only way to do that is to give it pre-disability on
condition that it take effect at a later time or under specified
conditions. It was done routinely for Dovid Hamelech's army, but there
clearly were reasons that Chazal, despite describing the solution Dovid
used, still did not choose to institute it more widely.
Gershon
<gershon.dubin@...>
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From: Rose Landowne <ROSELANDOW@...>
Date: Thu, 4 May 2000 18:37:50 EDT
Subject: Re: Kosher Post Dated Get
<< A prenup document would not solve the the above
husband-incapable-of-divorcing wife's agunah situation. OTOH, the
implication is that some sort of "post-dated" get would. Does anyone
know of such a "kosher" post-dated get that would free an agunah from a
husband who is physically incapable of giving a divorce? If yes, who
are the Rabbis who authorize such a post-dated get and does anyone have
an example of the text of such a get? >>
It doesn't sound like it would work in those cases. When a man goes away
to war and gives a conditional get to take effect on his not returning,
it is retroactive to when he wrote it. If the couple were together
during the time after it was written, it seems to me it would be a "get
yashan", an old get, and be invalidated.
Rose Landowne
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From: Howard Jachter <Hmjachter@...>
Date: Fri, 5 May 2000 10:24:34 EDT
Subject: Prenuptial Agreement
Mr. Sheldon Meth raises a number of interesting issues in regard to
the prenuptial. He asks why has this not been raised for 3300 years
since Maamad Har Sinai. First, a similar agreement was used in the time
of the Rishonim and Acharonim and appears in the Nachalas Shivah chapter
nine. Moreover, this agreement is based on a formulation of the Toras
Gittin which is cited by the Pischei Teshuvah to Even Haezer 134:9.
Second, until very recently the divorce rate among observant Jews was
very low and the Agunah problem was almost non-existent. For example,
one who studies the Pischei Teshuvah and the Aruch Hashulchan on all of
Hilchos Gittin will discover virtually no record of Agunos (as a result
of recalcitrant husbands). The reason is simple. People had respect
for Rabbanim. Contrast that with the unfortunate behavior that I have
endured as a Dayan trying to help resolve Igun situations. I have been
physically assaulted, cursed at, spat at, and been subject to a wide
variety of abuse from recalcitrant spouses. Other dayanim report
similar experiences.
The prenuptial seeks to restore some dignity to Batei Din by
facilitating their decisions being honored by American courts.
Enforcement of a decision of Beis Din by the civil courts does not
constitute Get Meusah (See Gittin 88b and Even Haezer 134:9).
The Gedolim who have approved in writing of the prenuptial (Rav
Zalman Nechemia Goldberg, Rav Ovadiah Yosef, Rav Chaim Zimbalist, Rav
Yitzchak Liebes, Rav Gedaliah Schwartz, Rav Mordechai Willig, Rav
Hershel Schachter, and Rav Elazar Meir Teitz) include the Gedolim under
whose auspices the majority of Orthodox Gittin are performed for the
past few decades. These are the Gedolim to whom Klal Yisrael trusts to
administer kosher Gittin and Klal Yisrael can trust to formulate a
kosher prenuptial. Unanimity is not required in Gittin matters. For
example, Gittin are written in Monsey despite the considerable
controversy surrounding the writing of Gittin in Monsey. Virtually all
Batei Din administer a Get in case of great need even if the husband
appointed the Sofer in writing and not in the presence of the Sofer,
despite the vociferous opposition of many Gedolim such as the Pri
Chadash and the Chazon Ish (see Teshuvos Tzitz Eliezer 10:47). There
are numerous other examples familiar to those who have studied Hilchos
Gittin..
No responsible posek calls into question that validity of Gittin
performed by reputable Batei Din. Calling into question the validity of
Gittin performed by a recognized Beis Din violates the Cherem of
Rabbeinu Tam (Even Haezer 154:22).
Rabbi Howard Jachter
Dayan,
Beth Din of Elizabeth and Beth Din of America
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From: Michael J Broyde <mbroyde@...>
Date: Thu, 4 May 2000 09:40:22 -0400 (EDT)
Subject: Prenuptial Agreement
A poster wrote in a number of comments and I am writing to comment on
them. I believe many of them are in error, or confuse social observations
with halachic principles.
The poster writes:
> It is clear that the concept is not accepted by all of the Orthodox
> community, and cannot be considered a "common practice among the
> American Orthodox community" (which comment by a poster was the reason
> for my original post).
This is a social observation, which I am not qualified to comment on.
The writer continues, stating:
> I agree, as per one poster, the prenup is essentially unenforceable.
This is quite wrong, as a matter of American law and halacha. Many many
of the prenups have quite clear enforcement provisions that are quite
enforceable as both a matter of halacha and American law. Three types
are present. A simple arbitration agreement can compel a couple to
submit to a din torah and obey the psak; a tosefet mezonot agreement can
compel support. The one that works least well is a direct obligation to
give a get upon certain set conditions, which perhaps does not work well
in either American law or halacha.
The poster continues:
> Furthermore, any enforcement by the secular court system, IMHO, might
> render any subsequent Get a Get Me'usa [forced - by the secular courts]
> and hence invalid anyway.
This statement appears to me to be wrong. It is clear that a submission
agreement is without any halachic problems at all, although it might not
always lead to the giving of a get, as in many cases bet din itself is
prevented from compelling the giving of a get. A tosefet mezonot
agreement has been put forward that has many many haskamot, and more
significantly not a single halachic criticism of it has ever been
published. Gitten are written with such agreements in the background
all the time and no one notes that these might be a get me'useh. One is
hard pressed to find any halachic problem that could lead to get me'useh
through the tosefet mezonot agreement. [Some oppose the use of these
agreements for pastoral reasons, or even because they think that
discussions of divorce lead to divorce or other reasons that are matters
of policy and judgment. HOWEVER -- and this is important to say clearly
-- THAT IS NOT THE SAME A A GET ME'USEH ARGUMENT.]
The poster then continues:
> Without the concurrence and recommendation of ALL the gedolei haposkim
> (and without getting into the who is a gadol mire), do we really want to
> get involved in something that might lead to safek mamzerus, R"L?
This statement, too, is wrong. There is no problem of safek mamzerut
with either a submission agreement or a tosefet mezonot agreement.
[Again, that is not the same as stating that all the gedolai haposkim
are in favor of such agreements -- I am sure that they are not -- but
rather this has nothing to do with get me'useh or mamzerut.]
Finally, the poster states:
> I would also like to ask a simple question, which is raised whenever a
> "novel" idea to solve the iguna problem is proposed: In the over 3300
> years we've had the Torah, how come none of our chachmei kadmon [earlier
> sages], who were certainly more versed in Torah and Hallachah than our
> meager generation, ever came up with this (or any other viable,
> universally accepted) idea?
This sentence requires much more of a response than I could possibly put
forward, but the simple answer is that in times of old batai din had
coercive authority (as halacha posits that they should have) and thus
these types of agreements were not needed as bet din could and did order
tosefet mezonot as directed by halacha and could compel a din torah when
proper. In our time batai din lack such authority without a signed
agreement from the parties, and these modern documents are simply
designed to return the bet din system to the same state of authority
that our earlier sages expected that it would have. We should all
support such attempts.
Michael Broyde
Chaver, Beth Din of America
Associate Professor of Law, Emory University School of Law
Rabbi, Young Israel of Toco Hills, Atlanta
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From: Joseph Tabory <taborj@...>
Date: Wed, 03 May 2000 06:12:03 +0200
Subject: Re: Prenuptial Agreement
I suggest that rabbis who use a prenuptial agreement and have them
signed before the wedding, announce, at the huppah, that the couple has
signed such an agreement. This would help increase the public acceptance
of these agreements. An appropriate time for this would be before or
after reading the ketubah. The rabbi could say that the ketubah was
ordained by the rabbis to enhance the woman's status and, in our times,
additional steps are necessary, the couple have signed an agreement.
Joseph Tabory
Department of Talmud - Bar Ilan University - Ramat Gan, 59200
tel. at office: (972) 3-5318593
email: mailto:<taborj@...>
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From: Isaac A Zlochower <zlochoia@...>
Date: Thu, 04 May 2000 22:55:59 -0400
Subject: Prenuptial Agreement
I am disappointed in Sheldon's response to Rav Jachter's explanation of
the currently used prenuptual agreement. The agreement that is used by
RCA rabbonim and is required by many before they will officiate at a
marriage, has been sanctioned by important rabbonim in Israel and the
US. These rebbonim clearly do not agree with Sheldon that such an
agreement will invalidate a "Get" and lead to "mamzerim". Nor do they
agree that no innovation in this area should be undertaken without
universal concurrence of all rabbis. I note that Harav Moshe Feinstein
did not seek any such concurrence when he ruled that a marriage ceremony
conducted by a Reform or Conservative rabbi did not constitute a valid
marriage and that a "Get" was unnecessary. That ruling is, if anything,
more innovative and radical than a prenuptual agreement. The impetus
for requiring "prenups" is the not uncommon occurrence of failed
marriages and the witholding of "Gittin" as a means of extracting a
favorable settlement or as a spiteful act. A young woman who is left in
such a situation can not be expected to remain celibate for the rest of
her life. A prenuptual agreement that provides a monetary incentive to
issue a "Get" will not lead to "mamzerim", but, rather, prevent them.
Yitzchok Zlochower
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From: Seth Lebowitz <LEBOWITZS@...>
Date: Wed, 3 May 2000 15:30:45 -0400
Subject: Prenuptial Agreement
Ephraim Davidson wrote:
"The posek made clear that [the prenuptial agreement] was a suspect
procedure, and while it would not prevent a Rav from serving as m'sader
keddushin, it was not preferable."
Does this posek think that a get obtained through the procedures in the
prenup would (or might) be invalid? Or does he think that signing a
prenup is "not preferable" out of concern for the
emotional/psychological effect it might have on a young couple? If so,
does it depend on the couple? Or did he have another reason? It would
be interesting to know the reasoning behind this decision.
Sincerely,
Seth Lebowitz
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From: Joel Rich <Joelirich@...>
Date: Thu, 4 May 2000 08:17:35 EDT
Subject: Re: Prenuptial Agreement
<< I would also like to ask a simple question, which is raised whenever a
"novel" idea to solve the iguna problem is proposed: In the over 3300
years we've had the Torah, how come none of our chachmei kadmon [earlier
sages], who were certainly more versed in Torah and Hallachah than our
meager generation, ever came up with this (or any other viable,
universally accepted) idea? -Sheldon Meth >>
and while we are at it - why didn't anyone prior to the chafetz chaim realize
the need for Bais Yaakov schools for women????
Kol Tuv
Joel Rich
[Basically I think the question is how can we classify those types of
actions which occur because of a change in circumstances requiring
halachic innovations, vs proposed innovations where we say the external
events have not changed, so the fact that a previous generations did not
do it is an indication that something is wrong with the proposal. Mod.]
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End of Volume 32 Issue 21
