Israel - Prenuptial Agreements

Til Death Do Us Part.

The pros and cons of prenuptial agreements - Israel.

Haaretz. by Neri Livneh

At the storytelling festival that took place two weeks ago, attorney BD, an expert on marital law, told the following story: A woman once came to him and asked him to draw up an agreement saying that half of her husband's very extensive assets would be immediately transferred to her. BD asked her if her husband agreed to this and she replied, "He won't have a choice." It turned out that, a few days before their wedding, her husband had handed her an envelope containing a prenuptial agreement stipulating that, in the event of their separation or his death, she would not receive a thing from his assets. "I don't like doing this," the prospective bridegroom told her, "but you have to understand my father is really pressuring me." The invitations had already been sent and everything was all ready, so feeling she had no choice and wanting to avoid any unpleasantness, the woman signed the agreement. Thereafter, for all the years of her marriage, she was haunted by a feeling of injustice and humiliation.

"And then a week ago," she told BD, "my husband - who was seriously injured in a car accident - was brought back home on a stretcher. And I want to hand him an envelope with an agreement inside and tell him, `I don't like doing this, but you have to understand, my mother is really pressuring me. She says I'd be a total fool to care for you during your illness without receiving anything.'"

"I had a problem with this vengefulness," says BD, "but the truth is that I couldn't really condemn her, because time after time I come across the same scenario where just weeks, days or even hours before the wedding, the husband suddenly pulls out a prenuptial agreement knowing the woman can't change her mind about the wedding at that point. Right at that moment, wounds are opened in the woman that will fester and haunt her for the duration of the marriage and never heal. Eventually, she'll seek revenge on the husband who demanded a prenuptial agreement."

It doesn't have to be this way. The necessity of a prenuptial agreement, especially in cases where the couple has children from previous marriages, is practically self-evident. In such cases, the purpose of the agreement is to protect the children's rights.

But prenuptial agreements are also becoming common in first marriages. Often they are part of the whole package when it comes to alternative marriages (civil marriage abroad or alternative ceremonies in Israel) and sometimes also precede a marriage done in accordance with Jewish law. Prenuptial agreements are first and foremost financial agreements and are therefore most frequently requested by the partner who has money. Almost always, the initiative for such an agreement comes from the wealthier partner in the marriage.

Attorney R, an expert in family law and in arbitration, says there is a connection between the increasing frequency of prenuptial agreements in first marriages and the rise in the average marriage age: People marrying in their late 30s or early 40s usually have some assets to their name. Of course, the increasing frequency of divorce has also made people more aware of the possibility that their marriage may not last until "death do us part."

But, says R, when it comes to first marriages, discussions about a prenuptial agreement are often fertile ground for hurt feelings and can lead to big blow-ups. "With first marriages, you have to be very careful and walk on eggshells," agrees attorney MD, though she maintains that prenuptial agreements are generally a good idea (and a real necessity in second marriages). "It's best for the couple to know exactly what they're in for."

A very feminist law

BD is not a fan of prenuptial agreements in first marriages: "The future husband ought to be whispering words of love in his partner's ear instead of telling her, `My lawyer will call your lawyer.' An agreement like this is a sure recipe for trouble, because it basically seeks to alter the law of financial relations, which is a very fair law that says that whatever is accumulated during the years of the marriage through the work of the couple belongs to the two of them equally, even if what has been accumulated is listed in the name of only one of them.

"It's a very feminist law, of course, which derives from the reality that men generally accumulate more assets than women (unless the woman in question is Shari Arison, Galia Albin, Pnina Rosenblum or one of the many other examples that prove the opposite), and they have a habit - maybe it's genetic - of keeping whatever has been accumulated in their name alone. Usually, the idea of having a prenuptial agreement in a first marriage comes from the husband, who is coming into the marriage with more assets and wants to change the basic law, or he expects he will earn more than his wife and wants to ensure that, in the case of divorce, she won't get half."

There are people, like BD, who feel the need to sit down and discuss section after section of a financial agreement, which also determines how assets shall be divided in case of divorce, is diametrically opposed to the laws of romance that call for affectionate gazes, declarations of love and eternal loyalty in happiness and good fortune forever after. As if the very thought of the possibility of divorce could become a self-fulfilling prophecy. But these people forget, says attorney IR, head of the New Family organization, that ordinary Jewish marriage includes a similar financial agreement. It's called the ketuba, but unlike a financial agreement signed between two parties of equal standing, the ketuba is signed only by the husband.

"I'm amazed that self-aware, feminist women are ready to accept such a thing as a ketuba, a financial agreement that they don't even sign and which I view as extremely humiliating," says IR. "It's a totally one-sided financial agreement. I'm not deriding its ritual and traditional value, but I think the practical significance of the ketuba ought to be neutralized. The ketuba, by the way, stipulates that the husband is required to have sexual relations with his wife. I know couples who don't have any sex."

And I thought that was one of the reasons for marriage - the desire to stop having sex.

"Well, I've found you don't have to get married for that," IRlaughs.

The ketuba originated in the financial agreements between the father of the bride and the groom, and evidence has been found of such an agreement from 440 B.C.E. In the 11th century, Rashi introduced the tradition of reading the ketuba aloud under the wedding canopy. "An agreement made in the 20th or 21st century," says IR, "ought not to reflect practices that are hundreds or thousands of years old."

IR is also opposed to the term "prenuptial agreement," which creates a connection between the agreement and the marriage. "I don't see such a connection," she says. "It's an agreement about couple-hood, whether that means living together or marriage. In our materialistic times, such an agreement is the concrete expression of the decision to have such a bond. Nowadays, when 42 percent of couples and family units are not built upon the consensus of a Jewish man and woman who married in accordance with Jewish law, there is certainly a need for such an agreement."

A tool for blackmail

Even BD sees one important advantage to such an agreement, in first marriages as well. "In recent years, the standard agreements also contain sections that make divorce easier. As you know, according to the pagan laws of Judaism," says the kippah-wearing attorney, "both sides must give their consent for a get [Jewish divorce] and thus the get becomes a tool for blackmail, sometimes by the man and sometimes by the woman. In the agreements that are signed today, there are financial sanctions for anyone who makes divorce difficult."

Such clauses raise a psychological as well as a halakhic problem. Psychologically, couples planning to marry have difficulty dealing with a line like, "in the event that one person in the couple decides in favor of divorce." "This is one of the strategic failures in the marketing of such financial agreements," says IR, "though I also see a growing openness happening here. Look, someone who wants to establish any sort of business partnership willingly signs a partnership agreement that also stipulates what will happen in the event that the partnership is dissolved - out of a desire and faith that the partnership will succeed. A partnership agreement for a couple should be perceived the same way - not as something that hastens an end to the partnership but as a support pillar for the connection, a foundation to build upon."

BD says the halakhic problem arises from the possibility that the clauses imposing financial sanctions could create the impression that the husband is giving the get not of his own accord, but because of the financial threat, "and according to the pagan law, the get must be given willingly." In order to reconcile the needs of modern life and such halakhic problems, Kolech, a feminist organization of women committed to "halakha, Jewish tradition and gender equality," came up with a prenuptial agreement that would be acceptable to halakha, too.

One of its starting points was the need to fight the incidence of men maliciously withholding a get, and thereby trapping women in the limbo of agunah status (rendering them unable to remarry). The Kolech agreement (which, like any other financial agreement, must be approved in family court or in the presence of a notary) mandates financial penalties for whoever makes the divorce difficult, but also requires the couple to undergo six months of counseling before making a final decision about whether to divorce.

IR rejects this agreement, too. "There shouldn't be any compromises and agreements with the halakha," she says. Meanwhile, in ultra-Orthodox circles, the opposition to such an agreement argues that no compromises should be made with secularism. On the "Yeshiva" Web site (of the Beit El Yeshiva), Rabbi Eliezer Melamed writes that it is absolutely forbidden to sign a Kolech agreement, because it enables "the party that was weakened religiously" to turn to a civil court, when it is well know that it is not permitted to seek redress in such courts. Furthermore, argues Melamed, the agreement does not stipulate who is responsible for the divorce, and "for the poor fellow who was betrayed" (the halakha doesn't treat the existence of an unfaithful man as a problem) who has no way of defending himself in the face of the agreement. Melamed is also against the marriage counseling being done by family therapists instead of rabbis.

To my mind, these arguments are enough to prove just how necessary prenuptial agreements are. IR thinks it would be best if the marriage registrar in the Interior Ministry was required by law to check that the couple has such a document prepared and, if not - to have them sign a "standard agreement" (similar to the one used by people who wish to register a company and do not have a specific agreement prepared). "If only everyone had such an agreement," MD agrees. "But the problem is that, in the end, the courts don't always uphold these agreements. Maybe when they become much more common, the courts will also be more inclined to uphold them."