Should prenuptial agreements be compulsory

By
February 22, 2017 21:36

In general, couples are disinclined to consider a prenuptial agreement at the relevant time as it can be seen as a lack of commitment to the marriage.

4 minute read.



Marriage certificate

A bride and groom sign a marriage certificate before their wedding in November 2013.. (photo credit:REUTERS)

Do you have a prenuptial agreement? Did you consider it when you got married, or was one even offered to you? If the answer is no, then you are in good company. Despite nearly half of all marriages ending in divorce (in the US, the Israel statistic is nearer to 30%) only 5% of those divorcing having a prenuptial agreement. While prenuptial agreements may not count as the most romantic gesture on the eve of a wedding the statistics for divorce are not going away and it may be time to take another look at the state of prenuptial agreements in Israel.

In general, couples are disinclined to consider a prenuptial agreement at the relevant time as it can be seen as a lack of commitment to the marriage. In one study 63% of people said that they believed they would be at a higher risk of divorce if their partner asked them for a prenuptial agreement. That said, recent years have seen a higher interest in prenuptial agreements, both from a religious and a financial perspective.

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A prenuptial agreement is not a new concept in Jewish law. The founding precept for a prenuptial agreement is the ketuba, which is a legal document in which the husband agrees to maintain his wife and sets out what she may receive in the event of her husband wishing to divorce her (not what most people think about when they hang a decorated version of it on their wall). In most cases, the amount paid out on divorce in the ketuba is symbolic and does not have a real significance, but the ketuba lays the groundwork for the acceptance of the prenuptial agreements of today.

Despite many good reasons for financial prenuptial agreements, the overwhelming majority of couples decide not to enter into them. The social stigma and the negative signals that asking for a prenuptial send out prevent most couples from even considering one. However, the rise of a completely different type of prenuptial agreement, the Halachic Prenuptial Agreement, may just change that.

A Halachic Prenuptial Agreement (HPA) is not focused on the division of assets from the marriage but is based on the concept of releasing a woman from being an agunah (“chained woman”). An agunah is a woman who cannot be released from her (religious) marriage for various reasons. Today, this is mostly focused on the refusal or inability of a man to grant his wife a get, a religious divorce. Many organizations have advocated for a form of prenuptial arrangement that would try to avoid this situation by putting heavy financial penalties on the get refuser and/or stating reasons where a get could be granted (Tzohar and Mavoi Satum are just two of the organizations that offer an HPA to address some of these issues). As stated above, these HPAs, and there are many forms of them, exclusively deal with the provision of a get without addressing financial arrangements post-get.

There has been much talk about the idea of a compulsory scheme making HPAs a prerequisite to getting married. This could be problematic from a halachic point of view as one of the barriers that needs to be overcome when dealing with people who refuse a get is that a get must be granted willingly, and forcing people into a prenuptial agreement may invalidate it. This obstacle could be circumvented by allowing people to opt out of the HPA if they feel strongly about it. The procedure for the HPA could be as simple as a form to be signed with the alternative of opting out being an affidavit signed by a notary. In which case, many couples may be happier to simply sign the HPA.

If the rabbinate would put its backing behind HPAs, it could really assist couples not to prolong and increase the animosity of the divorce process (the potential for a woman to be left as an agunah can be, and is in many cases, used as leverage in the divorce process). The added advantage to the rabbinate is that it can also save itself much time dealing with agunot issues in the religious courts.

If the HPA is seen not as a judgement on the state of the relationship of the couple involved but rather another piece of bureaucratic paper that just has to be signed prior to the wedding and which can be hopefully forgotten about unless needed, that can go far in combating the emotional barrier to signing a prenuptial agreement. Since the agunot issue affects the population at large, it needs to be addressed. A scheme that requires the HPA with an opt-out clause appears to be the simplest and most straightforward solution. HPAs may not sort out the financial division of the assets in the case of divorce, but may go a long way to solving the agunah problem in Israel and ultimately clear the way for more prenuptial planning as a matter of course.

The writer is a licensed mediator (UK and Israel) residing in Jerusalem. She specializes in mediation for English speakers (www.mediationinisrael.com).

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