Halachic Pre-Nuptials: A Step Forward

For that small number of people who watch these things and get excited about them, there’s been a buzz in the air about a decision in December 2012 by a Connecticut judge ruling that he had subject matter jurisdiction to hear a motion to enforce a pre-nuptial agreement made by a Jewish couple.

Over the past decade and more, many Jewish couples marrying sign what is known as a “halachic prenuptial agreement.” The agreement was formulated as one of the tools to fight the problem of agunot, Jewish women whose husbands refuse to give them a get. Very simply, the agreements most commonly used set up a system where one party may inform the other of a wish to divorce, and should counseling not bring about a reconciliation, the other side must honour the wish to divorce, and either give, or accept, a divorce.

Refusal by the man to give a get (or alternately, refusal by the woman to accept a get) means that a clause in the agreement kicks in, in which the person refusing must pay the other side a significant amount of spousal support, regardless of income or actual expenses.

When I am asked in Israel about the advantages and disadvantages of these agreements, one of my responses is, inevitably, that they have not really been tested by the courts here. Proponents of the agreement say that this proves they work, since they deter people from withholding the get; others say that the fact that they haven’t been tested doesn’t prove this, but may prove that those who sign them are the nice guys who wouldn’t hold back a get in any case.

Well, as noted, the recent decision by the Superior Court of Connecticut at New Haven, created  a celebratory atmosphere among those of us who watch these things.

The court (Judge Mark T. Gould), in Light v Light did not rule on the substance of the agreement, but had to rule on the preliminary question of whether or not the court had subject matter jurisdiction to hear Mrs. Light’s motion to enforce the prenuptial agreement, since the husband refuses to give a get. The legal-constitutional husband’s objection to the motion as summarized by the court:

 The defendant, on the other hand, argues that the court lacks subject matter jurisdiction because the prenuptial agreement is a religious document not subject to the secular court, but rather subject only to the Rabbinical Court (Bet Din).4 Thus, the defendant argues, for this court to provide the relief sought by the plaintiff, the court would be required to impermissibly and excessively invade religious doctrine. According to the defendant, the prenuptial agreement obligates the defendant, by means of a Kinyan (a formal Jewish transaction), to support the plaintiff should they no longer reside together and further calls for proceedings before the Bet Din regarding outstanding disputes between the parties. The prenuptial agreement provides for support of a wife until the Jewish marriage is terminated by way of a get, which requires proper ceremonies and questionings by the rabbi, followed by the husband handing the get to the wife in the presence of ten witnesses. According to the defendant, this act cannot be accomplished by a secular court, but rather solely through ecclesiastical means as a religious right and ceremony of the Jewish faith. Thus, the defendant contends, the prenuptial agreement refers to and reflects religious doctrine, protocols and ceremonies, and any action taken by this court relative to the prenuptial agreement would violate the free exercise and establishment clauses of the First Amendment to the United States Constitution, Articles One and Seven of the Connecticut constitution and General Statutes §52-571b.5

And further:

 The defendant further asserts that this court cannot perform any inquiry into the prenuptial agreement under “neutral principles of law” because, by its very nature, the document requires consideration of religious doctrines and ceremonies. Rather, this court must apply the strict scrutiny test to determine if it may interfere in the religious rights of the parties. According to the defendant, enforcement of the prenuptial agreement fails all prongs of the strict scrutiny test and, in particular, the first prong because there exists no secular purpose for the court to interfere in the religious rights of the parties.

Ultimately, the judge did not accept this argument:

 In the present case, the central question presented is whether enforcement of the prenuptial agreement requires the court to interpret and to apply religious doctrine and practices or whether neutral principles of secular law can be applied without need to inquire into religious matters. “Neutral principles are secular legal rules whose application to religious parties or disputes do not entail theological or religious evaluations.”

The court then went on to discuss a number of precedents in which US courts enforced mahr payments by Muslim husbands, and payments of ketubah by Jewish husbands. Using the principles in those cases, Judge Gould decided:

 In the present case, the central question presented is whether enforcement of the prenuptial agreement requires the court to interpret and to apply religious doctrine and practices or whether neutral principles of secular law can be applied without need to inquire into religious matters.

And to make the point even stronger:

 Enforcement of the prenuptial agreement has the secular purpose of enforcing a contract between the parties and furthers the secular purpose set forth in Connecticut’s [*20] Premarital Agreement Act “to recognize the legitimacy of premarital contracts in Connecticut . . . Connecticut [has] recognized the efficacy and usefulness of contracts between persons proposing to marry.” Dornemann v. Dornemann, 48 Conn.Sup. 502, 519-20, 850 A.2d 273 [37 Conn. L. Rptr. 74] (2004); see General Statutes §46b-36a et seq. Next, the primary effect of enforcing the prenuptial agreement is to further the secular purposes stated above and not to advance or inhibit religion. Enforcement of the prenuptial agreement does not require either the plaintiff or the defendant to engage in any act of worship or profess any religious belief. To the extent that enforcement of the prenuptial agreement advances Judaism by requiring support for the wife until the husband gives her a get, it is an incidental effect of the enforcement of the parties’ contract that Jewish law govern the status of their marriage. See In re Marriage of Goldman, supra, 196 Ill.App.3d 785. Finally, enforcement of the prenuptial agreement does not result in an excessive entanglement with religion. “In resolving disputes involving religion, a court may apply objective, well-established principles of secular law, or neutral principles of law, which do not entail a consideration of doctrinal matters.” Id. In the present case, the trial court may apply well-established principles of contract law and Connecticut’s Premarital Agreement Act to enforce the agreement made by the parties.

I’m curious as to whether the judge’s ruling brought Mr. Light to the rational conclusion that he should quit while he’s not extremely far behind, and give the get already. Or, is he one of those people willing to lose a great deal for the sake of some imagined benefit, tangible or emotional, that some people feel come their way by not facilitating the get.

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3 Responses to Halachic Pre-Nuptials: A Step Forward

  1. Jenn Levin says:

    Can you post the PDF of the ruling? That would be really helpful for soon-to-be married couples who want to read through this more deeply!

  2. Many would like to see this decision. Can you possibly send me the PDF. I will post it in a public link and send it back to you. Thank You. David E Y Sarna david@hshco.com

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