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The Prenuptial Agreement:
Recent Developments
Rabbi Mordechai Willig
In 1992, in response to growing concern regarding a husband’s ability to purpose-
fully withhold a get from his wife without halachic reason to do so, as well as the
modern day beit din’s lack of authority to ensure that gittin were delivered in a timely
manner, a prenuptial agreement was developed. Its purpose was to ensure that a
husband would deliver a get in a timely fashion, while being sensitive to the halachot
that would render a “forced” get null and void. The agreement, known as the Rab-
binical Council of America and/or Beth Din of America prenuptial agreement, re-
ceived approval from significant Torah authorities, and has resulted in the efficient
resolution of scores of divorce cases in the years since its introduction. The current
form of the agreement is available at www.theprenup.org.
The prenuptial agreement obligates the husband to pay a set sum, currently $150
a day, which begins when the couple no longer continues domestic residence to-
gether and is in effect for the duration of the Jewish marriage. This obligation for
food and support (parnasah) terminates if the wife refuses to appear before the Beth
Din of America when summoned, or if she fails to abide by the decision or recom-
mendation of the Beth Din of America.
From its inception, there was a concern that a wife might demand the daily sum
in circumstances not envisioned by the parties or the agreement’s formulators. For
example, in some cases a couple ceases living in the same residence, but some time
passes before either spouse takes any steps to request or schedule a get. Where the
husband has not declined to give a get in a timely manner, it would seem inequitable
for the support obligation to silently accrue until one spouse or another decides
to request a get. This is because the obligation is meant to serve as an incentive for
the husband to issue a get upon his wife’s request in a timely fashion. It was not
intended to provide the wife a means to demand additional money beyond any ne-
gotiated or beit din or court imposed settlement. While the text of the document is
appropriately silent on this matter, a supplemental informational page states that
the agreement is intended to facilitate the timely and proper resolution of marital
disputes, and this is clearly the parties’ intention when they sign the agreement.
To allay these concerns the following statement was added to the agreement in
May 2008: “Furthermore, Wife-to-Be waives her right to collect any portion of this
support obligation attributable to the period preceding the date of her reasonable
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rabbi mordechai willig
attempt to provide written notification to Husband-to-be that she intends to col-
lect the above sum. Said written notification must include Wife-to-Be’s notarized
signature.” This new language eliminates the possibility of a latent accrual of the
support obligation. The obligation only begins once the wife has affirmatively put
the husband on notice that she intends to collect the sum.
Notwithstanding this addition, the concerns that motivated the adoption of the
new language still remain with respect to prenuptial agreements signed prior to
May of 2008. In addition, even with the new language, there remains the possibility
that some time will pass between the wife’s delivery of the requisite notice and the
actual delivery of the get – either because of legitimate logistical reasons beyond the
control of the parties, or because the wife fails to act to schedule the get in a timely
manner. Ultimately, any award under the prenuptial agreement can only be made
by a beit din convened to hear testimony and gather evidence regarding the facts and
circumstances of the particular case. This article will explore three possible bases
that a beit din may utilize to exempt a husband from payment of the daily sum in
circumstances similar to those we have set forth above.
Intent
As mentioned, there are cases when the document’s plain language obligates the hus-
band even though it is clear that the intent of the parties and the original formulators
of the agreement was not to obligate him. What is the halacha in these cases?
Shulchan Aruch cites an opinion which states that if one writes a condition in a
document, we follow the intention of the condition, rather than the language that
is written.
1
The opinion is based on a case that appears in the Talmud (Kiddushin
60b) involving a man who marries a woman on the condition that he shows her a
measure of land. The Talmud rules that if he shows her land that he owns, she is
married, but if he shows her land which is not owned by him, she is not married.
The Talmud, citing a Tosefta, explains that, “she did not intend to see anything but
his land.” Although the literal language of the condition, “I will show you a measure
of land,” makes no mention of ownership, we follow her presumed intention. It is
1
Shulchan Aruch, Choshen Mishpat, 61:16.
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the prenuptial agreement: recent developments
from here that Rabbeinu Yerucham derived and proclaimed what he referred to as
a major principle: that we ignore the literal language of an agreement and follow the
intention of its parties.
2
Since the intent of the prenuptial agreement was to serve as an incentive for the
husband to deliver a get in a timely fashion, the husband cannot be obligated to pay
the daily sum in a case where the husband has acted in good faith, even if the plain
language of the document may imply otherwise.
Equity
Another important consideration is the governing law provision contained within
the prenuptial agreement. The agreement provides for the Beth Din to render its
decision “in accordance with... Beth Din ordered settlement in accordance with
the principles of Jewish law (peshara krova la-din).” A beit din empowered to decide a
case based on peshara krova la-din has wide latitude to decide a case based on its eq-
uities, and avert an inequitable and unintended consequence that may result from
the literal reading of a contractual provision.
Obligating a husband who has acted in good faith to pay the daily sum provided for in
the prenuptial agreement would certainly be considered inequitable. As such, the Beth
Din may absolve him from such an obligation using the principle of peshara krova la-din.
Waiver
The husband’s obligation of $150 per day is characterized by the document as sup-
port, or parnasah. The agreement quantifies the parnasah obligation, and applies it
when domestic residence together is discontinued “for whatever reason.” In the ab-
sence of the agreement, the husband’s obligation, which is not quantified, continues
after the separation only if he is responsible for the separation.
3
In such a case, the
burden of proof would fall upon the wife and would be very difficult for her to demon-
strate even if she is factually correct. This is especially true in light of the vagaries of the
2
Beit Yosef, Choshen Mishpat, 61:16 and Biur HaGra, Choshen Mishpat, 61:16.
3
Shulchan Aruch, Even Haezer, 70:12.
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rabbi mordechai willig
present beit din system. The agreement, however, applies the obligation “for whatever
reason,” thereby eliminating the need to determine responsibility for the separation.
4
Notwithstanding these significant deviations from the classical concept of par-
nasah, the husband’s obligation under the prenuptial agreement resembles parnasah,
and is explicitly described in the agreement as functioning “in lieu of my Jewish
law obligation of support.” Classical parnasah is subject to claims of waiver. For ex-
ample, Shulchan Aruch describes a couple that separated in a case in which the hus-
band is obligated to support her, and concludes that if she did not claim the support
when it came due, she has waived (“machala”) the earlier support obligation.
5
Since
the support obligation contained in the prenuptial agreement is akin to parnasah, it
is likely subject to waiver as well. In a case where a wife does not demand the daily
sum when it becomes due, there may be a presumed waiver or mechila of that sum.
These three considerations apply in virtually all Beth Din of America prenuptial
arbitration agreements, prior to the updated language, when the husband is willing
to give a get immediately but is constrained by mutual agreement. This includes at-
tempts at reconciliation, mediation, and legal proceedings. Two additional consid-
erations exist in a limited number of cases based on the wife’s conduct.
Refusal to Receive the Get
In a case where the husband wishes to issue the get and the wife refuses to receive
it, for the above reasons (reconciliation, mediation, or legal proceedings) or others,
there is an additional reason to assume that the wife waives the daily sum of the pre-
nuptial arbitration agreement for the duration of her refusal to receive the get. The
Ritva states that even a woman who argued with her husband and left him is assumed
to have forgiven a support obligation.
6
As long as they are married, she may harbor
hope for reconciliation and for that reason forgive the obligation. Some batei din have
cited this Ritva as further precedent for waiving a husband’s parnasah obligation.
7
4
Nevertheless, the beit din is authorized to consider the respective responsibilities of either or both
of the parties for the end of the marriage as an additional, but not exclusive, factor in determining the
distribution of marital property. This protects the husbands from possible inequity stemming from his
unconditional obligation.
5
Shulchan Aruch, Even Haezer, 70:12.
6
Chiddushei HaRitva, Ketubot 96a.
7
Piskei Din Rabaniyim 2, no. 10 (1956), 291-292.
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the prenuptial agreement: recent developments
Financial Claim in Secular Court
If, prior to petitioning the beit din for support pursuant to the terms of the prenuptial
agreement, the wife pursued financial claims in secular court, she may not be entitled
to petition a beit din to address a similar claim. Rama cites an opinion that beit din will
not accept the case of one who previously pursued a claim in secular court against a
fellow Jew and turned to beit din after losing that case in secular court.
8
According to many authorities, the plaintiff forfeits his or her right to pursue the
claim in beit din from the moment that substantive proceedings have begun in secu-
lar court.
9
A wife’s claim for support in secular court is fundamentally the same as
the support clause of the prenuptial arbitration agreement. As such, if she pursues
support in secular court, she may forfeit her right to pursue the support clause of
the prenuptial agreement in beit din.
The decision of any beit din or court on these matters is somewhat unpredict-
able.
10
Therefore, notwithstanding the arguments set forth above, the recent lan-
guage added to the Beth Din of America prenuptial agreement is a prudent step to
avoid problems in the future
Rabbi Mordechai Willig is the Segan Av Beit Din of the Beth Din of America. Rabbi
Willig is also the Rabbi Dr. Sol Roth Professor of Talmud and Contemporary Hal-
achah, the Rosh Kollel of the Bella and Harry Wexner Kollel Elyon and the Segan Rosh
Kollel of the Rabbi Norman Lamm Yadin Yadin Kollel of the Rabbi Isaac El-
chanan Theological Seminary at Yeshiva University, and the rabbi of the Young Is-
rael of Riverdale in Riverdale, New York.
8
Rama, Choshen Mishpat, 26:1.
9
R. Joseph Colon (1420-1480), Shu”t Maharik, no. 187 and Beit Yosef, Choshen Mishpat, 26:1 (s.v. gedola
mizu). For a further discussion see R. Mordechai Willig, “He’arot Bireish Perek Zeh Borer,” Beit Yitzchak
36 (2004), 24-25
10
See, for example, Lang v. Levi, 16 A.3d 980 (Md. App. 2011) (available at http://www.courts.state.md.
us/opinions/cosa/2011/1425s09.pdf).
