Thursday, February 17, 2005

On Pre-nups

Hirhurim linked to an article in the Jerusalem Post. Basically, Rav Elyashiv has a long-standing halachic objection to the validity of pre-nups, and this is interfering with its being accepted in Israel. The pre-nup basically says that if they get divorced secularly and the husband withholds the get, he agrees to pay a hefty sum to her for each day he does not give her the get.

As I understand it, Rav Elyashiv's objection is that when he agreed to sign the pre-nup, he did not have in mind that he would ever get divorced, so as to be in a situation where it was enforced. As a result, the agreement has the status of asmachta and should not be binding. Using this agreement to then force the get would be improper coercion, and the resulting get would be invalid.

Now, a whole slew of RIETS Roshei Yeshiva, including Rav Schachter and Rabbi Willig, are on record in favor of the pre-nup, so there is obviously basis to say that it is good.

Just a few comments about the whole situation.

Firstly, contrary to a comment by Shmarya on that blog (since deleted), this is not about a power grab. Shmarya consistently makes such allegations about many rabbis, whenever some new issue comes up. As one example out of a bewildering array, he alleged that the entire copepod issue was created by the OU, not because of real kashrut concerns but rather because the OU wanted to make money certifying water and filters. In the end, when the OU made a statement, they gave general guidelines of what features of filters were OK, so it clearly was not a business decision. You have to learn to filter out the noise.

Both those in favor of the pre-nup and those against do not want to cause needless suffering to agunot.

The entire issue of agunot is that the women are being denied a valid Jewish divorce from their husbands, such that they can remarry halachicly. Were a woman to wish to remarry outside the bounds of halacha, she could do so by getting a secular marriage in America, or in Israel by going to Greece. It is women who are dedicated to keeping halacha who are suffering by not being able to remarry because of recalcitrant husbands.

Now, the solution is to find some way for the woman to receive a kosher get. If she receives a non-kosher get, then she is in the same situation she was in before. That is, the can remarry secularly, but from the perspective of halacha she would be committing adultery. Thus, there is no benefit over case 1.

Now, Rabbis today do not create halacha. They look through the sources, they assess the situation, and they try to make a determination of what the halacha is. According to Rabbi Schachter, Rabbi Willig, etc., the pre-nup is a valid way to have the woman receive a kosher get. Rav Elyashiv, based on his understanding of the sources and situation, disagrees, and thinks it would not be a valid get, and any woman using such a get as a basis to remarry would be violating halacha. He has an obligation to make his views known, and if he is correct, then allowing women to unwittingly commit adultery is no favor to them.

Now, there are major poskim backing the pre-nup.

I didn't like the final comment in the article, though:
Despite [Rav] Elyashiv's opposition to the use of prenuptial agreements as a tool for forcing the husband to give a get, or the wife to accept one, those who support the idea have not given up hope.

Rabbi Elyashiv Knol, of the Religious Kibbutz Movement, said a groundswell of public support for prenuptials would force the rabbinic courts to take the issue seriously. "We need to increase public consciousness in the hope that if the change does not come from the top it will be pushed from below by the people."

In general, I don't like the idea of halacha being pushed from below. Imagine other matters of major halachic impact being pushed from below. Tremendous support from below, on animal rights ground, for reforms in shechita which major poskim say would lead to the animals being non-kosher. In general I like the idea of people who are in the know and are on the level of knowledge to make halachic decisions to be the ones doing so, rather than to create artificial pressure from those who are not qualified to make the decision.

In this case, it is a bit different, since there is some major backing for the pre-nup even in Israel, and it is consideration for Rav Elyashiv's opinion on the part of Chief Sephardi Rabbi Shlomo Amar, who is head of the rabbinical courts, that is stopping them from being honored. Still, it is somewhat troubling.

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