by Rabbi Dovid E. Eidensohn
A pre-nuptial agreement has the function of preserving the marriage, resolving difficulties in writing before they erupt, and if necessary, showing how to save the marriage with counseling, and if that fails, how to divorce without anger.
A pre-nuptial agreement that only serves to pressure the husband to divorce is IMMORAL. I would suggest the following in a pre-nuptial agreement, or agreements, which are to be completed and accepted by both parties immediately prior to the engagement:
I, name, address, city, phone, and I, name, address, city, phone, do hereby agree to contemplate marriage, at a time in the future. Our engagement, schedule for (today, this week, etc.) will not be an act of marriage, and will merely indicate our desire to marry at a future time. It will not be an act of Nisuim nor will it be construed as Erusin, and there is no binding oath to marry. Any exchange of rings, gifts, etc. shall be gifts without the purpose of consummating a marriage. (This is proper because some may regard the engagement ring as ERUSIN.)
I, and I commit ourselves to counseling before the marriage. We will learn the laws of marriage according to the Torah, and we will learn what the Torah advises are stresses on the marriage, and how the Torah and wisdom dictate that we behave to resolve those problems. We will read such and such books, and speak to such and such.
We will at all times have a third party between us to resolve any differences.
Any party, at any time, may invoke the third party, and each side encourages the other to do so. In the event that the third party cannot resolve the issue, it will be presented to another third party, with the authority to decide the issue. (Or, the third party will resolve the issue.)
Up until such and such a date, each party to the planned marriage may break off without punishment. After that date, it is agreed that anyone breaking the engagement must ask the other’s forgiveness and pay a sum adjudicated by a Beth Din, specifically, Beth Din _______ or a rabbi or rabbinical court or other person who is the emissary of the Beth Din, or one so empowered by that Beth Din.
It is agreed that before the marriage the two parties will meet with a qualified person, recommended by the above Beth Din, who will go over with them the various financial and emotional issues that may arise and come between them. They will then resolve these issues themselves, or allow the third party or even a Beth Din to do so.
The couple is committed to counseling such and such times with so and so during the first year, and subsequently will pursue counseling, learning, and training from experienced people and teachers.
The couple agrees that every week at least two hours during waking hours must be spent without any discussion of problems, only to relax and enjoy each other’s company in the most tranquil surroundings.
Intimacy will be planned and not sporadic, a part of the obligations of the spouses and not something based on moods alone. Each person must prepare for the period of intimacy, removing any thoughts or words that could arouse anger or negative feelings. This can perhaps be achieved by counseling, or continued efforts to achieve it.
The couple commits itself to prudent financial planning, to minimize consumption and debt, so that the house is blessed with tranquility, and not the fear of credit card payments.
Each person has the right to refuse friends and family into the home if they feel that such will damage their marriage, or cause them grief. This kind of problem can be reviewed by a third person or Beth Din.
The couple knows that monetary stress is deleterious to the marriage, and will be cognizant of this at all times, to increase efforts to save the marriage when there are money problems.
The same is true when there are stresses with health or children.
Each person in the marriage pledges to be on the guard for friends and others who may disparage the spouse, or who say generally discouraging things about marriage, men or women. It is forbidden to talk to such a person. It is surely forbidden to invite such a person to the house, to watch all that transpires, and to comment in a manner to destroy the peace of the house.
In the event that the marriage does not work out, there is a process as follows. First, throughout the marriage, there is a regular review by a qualified third party, of all that goes on in the marriage. Every attempt will be made to resolve any issue that surfaces. If, however, there are problems that cannot be resolved and it looks like a serious rupture, the counseling now switches to dealing with a potential divorce. First, both partners are told that things have reached the point where they must be aware of the potential for a divorce.
Secondly, all anger must be eviscerated, if possible. The couple is encouraged to divorce without irrational fears, because they have nothing to fear, as they are going to settle everything at a Beth Din of their choosing. Every effort will be made to satisfy both sides, so that nothing is really contested.
Each side promises that in the event, heaven forbid, of divorce discussions, that they will refuse the assistance of anyone who is known to provoke “gender” battles, or who is an activist on behalf of men or women, a partisan rather than a maker of peace and calm. A divorce without loshon hora and threats, anger and fear, is the desideratum.
If one party refuses to divorce, there is a Din Torah at such and such a Beth Din. It is forbidden to go to civil court for any marital or financial problems.
Both parties do hereby swear that they will not go to civil court for marital and financial difficulties without the permission of a rabbinical court.
In the event that someone does go to civil court, they have violated their sworn word, and may be ostracized by the community, in such a manner permitted by Beth Din such and such.
Each party gives the other party a sum of ten dollars to guarantee that they not take any financial or marital matters to civil court. If they violate this, they will have stolen the ten dollars. The rabbinical court will deal with this violation of this agreement, binding because of the oath and payment.
If the marriage is blessed with children, the couple accepts the ruling of the Talmud that even if one’s spouse is bad, there must not be a divorce for the sake of the children. A rabbinical court must be invoked to give permission to divorce. The couple realizes that even a woman who has spent the night with a strange man, after the husband warns her, is brought back into the house with the process of “the bitter waters.” This shows us how important it is not to use evil of a spouse to break up a family, which destroys the peace of the Holy Name, heaven forfend. Certainly, if children are involved, they are not to suffer because of marital problems.
Each party to the marriage commits to prayer and seeking of blessings for a successful marriage, which will surely follow if the above is obeyed properly.
The above is a general idea of what a proper pre-nuptial agreement achieves. It leads to calm and peace. One pre-nuptial agreement I have seen is an invitation to war. There is nothing there about counseling, nothing about calm consideration of the proper way to go about a crisis in marriage, only wham! and smacko! to the husband. Any husband who signs such a pre-nuptial agreement has no self-respect, or lives in an environment where husbands are whipped and put into the corner. I am shocked to see a pre-nuptial clause whereby the parties are bound by the equitable agreements laws according to the civil law, and not the Torah. This is Torah bankruptcy. Such an atmosphere of terror to husbands and violation of Jewish Law can only contribute to the present atmosphere where invalid Gittin are producing fears of mamzerim. On the other hand, the shocking pre-nuptial document mentioned in the previous paragraph was prepared by a prominent organization, and they did it because of the wave of hysteria engulfing modern Orthodox women, and some not modern. The women have “had enough,” and they will not rest until they get the “evil” men in their lives and the blockhead rabbis to do the right thing. It is all part of the secular gender hate, and a Jew has NO portion in such! This is easier said than done. In my case, back in the seventies, I realized this was happening and left the general community to seek refuge for my children in the narrow confines of the ultra-Orthodox Hassidic community. Not everybody can do this, but the point is, When do we get out? At what point do we tell the world, “Stop! I want to get off”?