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Prenutial Agreements: An Halachic View
An Orthodox Perspective by Rivka C. Berman

 • Content of Prenuptial Agreement
 • Closing the Loopholes
 • When to Sign the Jewish Prenuptial
 • Accepting the Terms of Marriage – Kabbalat Kinyan

Prenuptial Agreements
Some unscrupulous husbands have been known to take advantage of the halacha that places the power of divorce in their hands. They spitefully withhold a Jewish divorce from their wives. Since a Jewish woman cannot remarry without a Jewish divorce, these women become agunot, chained women.

Widely accepted halachic resolutions to the agunah tragedy have eluded the Orthodox community. Rabbi Emanuel Rackman's and Rabbi Moshe Morgenstern's courageous initiative method to free agunot has met with harsh criticism. Unfortunately, to date, no major orthodox authority has taken it upon itself to resolve this growing, painful, and destructive plight of the "agunot."

What’s in the Document
Orthodox rabbis have come together to create a prenuptial agreement to preempt any future problems should the marriage end in divorce. Essentially, the agreement consists of two parts.

First, both couples sign an arbitration agreement, agreeing to appear before a beit din, Jewish court, to acquire a get, Jewish divorce document. This agreement can limit the beit din’s power to writing the get and leave the property and custody settlements to the civil courts. (The ketubah settlement is likely to result in a much lesser allocation to the wife than the civil settlement, and no State court will permit a beit din to decide custody arrangements.)

Second, the husband-to-be signs a separate agreement. This document is designed to restrain a husband from withholding a get or extorting huge sums of money from his wife and her family as a get price. In it, the husband agrees to support his wife with a certain amount of money each day (the amount is adjusted for inflation) the couple lives apart until the husband responds to a beit din’s summons. With this agreement, a husband who heads to the beit din right away avoids a financial pinch. Wives who refuse to accept a get forfeit this support.

Closing the Loopholes
It is one thing to sign a prenuptial, it’s another to abide by it. Steps have been taken to constrict the legal wiggle room potentially sought out by spouses who wish to renege on the agreement. For example, a test case of a similar agreement written into the Conservative ketubah (the Lieberman Clause) hinged on a husband’s protests that he did not understand what he was signing. Therefore couples using the Orthodox prenuptial agreement are advised to review the documents with their own lawyers. To assure the couples fully comprehend the documents, the English versions are signed instead of the Hebrew texts, which could give rise to loopholes if the accuracy of the translation is challenged.

When to Sign the Prenuptial Agreement
Halachic prenuptial documents are a product of the past twenty years. Prenuptial agreement signing has yet to settle into a regular spot in the wedding ceremony. Review of the document is to take place way before the ceremony, but some have suggested the signing should be incorporated into the tenaim ceremony held just before the groom sets off to badeck, veil, his bride. Mothers of the bride and groom customarily break a plate after the tenaim are signed. Within the context of the prenuptial agreement, the plate smashing can be translated into a potent symbol of parental protection, fending for the well-being of their children should this marriage sour.

Accepting the Terms of Marriage – Kabbalat Kinyan
After the ketubah is witnessed and signed, the groom signifies his acceptance of the terms in the ketubah by performing a kabbalat kinyan. In this ceremony, the groom pulls a handkerchief from the hands of the officiating rabbi. Symbolically, the groom is taking handkerchief in barter for his obligations. (An actual handkerchief does not have to be used. A scarf, cloth napkin, gartel – a thin belt used by some during prayer - or any small piece of will do. In truth, the kinyan can be done with any item, but the Gemora uses a handkerchief as its prototype.)

Kinyan is an ancient Jewish custom mentioned in the Book of Ruth (4:7): “To confirm all things a man would take off his shoe and give it to another party. This would create an obligation.” In place of shoe removal, the groom grasps the handkerchief.

Witnesses who sign the ketubah should be certain to see the kinyan take place.


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The Ketubah: The Jewish Marriage Contract
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• Ketubah Highlights: Content and Meaning
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• Prenuptial Agreement: An Halachic View
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