Why a Prenup is Forbidden by the Mishneh, the Rishonim and Poskim

Tel Conf #16 – Prenups Force a Husband to Divorce His Wife
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Rabbi Dovid E. Eidensohn\845-578-1917/eidensohnd@gmail.com

Prenups

Prenups are documents a husband signs at his wedding, empowering the wife to leave the house at any time and force the husband to give her a GET. The husband, from the time that the wife leaves the house, must pay his wife a large sum of money regularly, a sum designed to overwhelm his ability to pay and to force him to give her a GET. The Modern Orthodox world is working hard to force every husband to sign a prenup. When that happens, may truly Orthodox people marry children born from Modern Orthodox women who got divorces because of prenups, or not? And what happens if Orthodox husbands sign a prenup and there is a GET? That is our discussion here.

Proof from a Mishneh in the Talmud that Prenups are Forbidden

See Nedorim 90b. The Mishneh says, “Originally the rabbis taught that three women who make claims may leave their husbands [the rabbis force the husband to give a GET] and are paid their Kesubo: 1) A woman who tells her husband, ‘I have profaned myself to you’ [she slept with another man]. 2) The heavens are between us [she claims that the husband cannot ejaculate and thus cannot have children and she wants a GET]. 3) I am away from the Jewish people [she forbids herself to have intercourse with anyone, perhaps because intercourse causes her pain (Tosfose 90b). The rabbis changed their minds, because we fear that women will want to remarry with a different husband if a wife has the right to just say something and get a GET.”

We see from this that women who have a right to go free with a forced GET from their husbands lose that right when we fear that this freedom will lead women to say lies so that they will be able to remarry another man.

A prenup is exactly what the Mishneh describes. A woman is given the right to force a GET from her husband just because she asks for the GET. Now every Jewish woman can easily leave her husband and find somebody else. The Mishneh makes is clear that we must guard that women do not have this right. If so, how can we permit prenups?

They Claim Proof from Nachalas Shiva to Permit Prenups

Some claim a proof for prenups is found in the classic Sefer Nachalas Shivo. Chapter 9 deals with documents signed at the Chupah. The long version contains the following condition: “And if chas vishalom the husband should do to his wife something that she cannot tolerate and she needs a Beth Din, then the husband will immediately with no delay give her ten gold pieces for her food. And so shall he give her every month of the contention. And she gets her clothes and jewelry she needs to wear. And the husband will go with her to their Beth Din. (And if there is no Beth Din in their city they will go to one in a nearby city or make zabla.) This is to be done within two weeks after she made this request of him. And the Beth Din will settle any argument and difference between them. And after they come to terms the wife will return to her husband’s house. And she will return any remaining money and her clothes and her jewelry to her husband’s house, where they were originally.”

Some infer from this that a husband can sign a prenup that obligates the husband to pay a monthly amount to his wife when she demands a GET and leaves the house, until she gets a GET. But this document says something much different.

First, the obligations of the husband only begin when the wife suffers at his hands, perhaps from a beating. And the Beth Din that will hear the case  has the authority and ability to find out the truth if he did beat her. If a woman is beaten and she screams people hear it. And if he did something else to torment her, the Beth Din is trained to find out exactly what happened. This is crucial because we explained above that the Mishneh in Nedorim clearly forbids any ruling that gives women the right to force a GET from the husband. We fear that ladies will find  somebody more interesting than the husband and leave her husband whenever she wants. That is exactly what a prenup does. The wife is empowered to force a GET anytime she wants.

See also Kesubose 63b ד"ה אבל אמרה about if a woman who claims that her husband disgusts her can force a GET. Rabbeinu Tam says she cannot otherwise women would find somebody else to marry and force a GET on the first husband. Thus, Rabbeinu Tam would surely forbid a prenup, because it permits a woman to leave her husband against his will and remarry somebody she likes better. We pasken like Rabbeinu Tam see EH 77 par 2 and 3. Thus, it is forbidden to give a woman the ability to force a GET from her husband anytime she wants.

The Tosfose there says that if a woman can force a GET but get no money from the husband not even a kesubo, some would permit it. But if she gets money, such as a kesubo, everyone holds it is forbidden to coerce the husband. Thus, everyone would agree that a prenup is wrong, even those who disagree with Rabbeinu Tam.

The prenup is quite different from the above document protecting the wife who must flee the house of her husband because he did something terrible to her. He and she must  go to Beth Din and while she returns to her parents or some other house, the husband must give her some money for food. With a prenup, the wife, for any reason, can leave the house and demand a GET. And the husband must pay the wife  a large amount of money monthly or weekly or daily until he collapses and has to give a GET. This GET is forced by the prenup, and it says that clearly in the prenup.

The Nachalas Shiva document mentions nothing about a GET, only about going to Beth Din. And once the couple is in Beth Din and the Beth Din clarifies what has to be done there is no longer any payments. This is surely different than the huge sums demanded for not giving a GET by prenups. There the entire purpose of the prenup is to force a GET, and this is forbidden by the rabbis of the Mishneh.

Comments from Rabbonim on Prenups in Daas Torah

I saw in my brother’s blog Daattorah a letter from rabbonim attacking Prenups. HaGaonRav Shlomo Yedidiah bReb Zifroni shlit”o quotes the Gaon Rav Ovadiah Yosef zt”l quoted below that if a wife leaves the house and does not want to return to the husband there is no obligation to pay her money for mezonose or to give her mezonose. But if she left the house because of a fight with a mother-in-law and will return when the mother-in-law leaves, the husband must give her mezonose where she is staying. It all depends whether she maintains the marriage and wants to remain his wife. But if she wants to leave him, he has no obligations to her. Thus, Rav Shlomo Yedidiah shlit”o rules that the prenup forces the husband to give a wife mezonose of a huge sum of money has no place, because since she wants a GET, and does not want to return to him, the husband has no obligation to provide her with mezonose. Thus, the prenup is simply a tactic to force the husband to give a GET, and the GET is thus a GET MEUSO and invalid.[1]

Also in my brother’s blog a letter appears against prenups from Rav Eliyohu Shlesinger shlit”o who stresses that Gedolim of past generations knew all of the problems about women needing a GET and husbands refusing, and they knew all of the tricks to force a GET, but they refused to introduce these things. And that is how we should behave. We are not a generation that can invent devices that could produce invalid Gittin.

In the time of the Gaon Rav Yosheh Ber Soloveitchik as Rosh Yeshiva in YU, people came forward with these ideas, to make changes in divorces that would free women from the obligations of the GET. He responded, “Kolu kol hakaitsim.” The end of all ends. This is the pits. Once we start playing around with the laws of Gittin, we will have a disaster. And today, things are not any better than in his time. In his time the world had many great Torah leaders who could speak and be heard. Today we don’t have any such personalities. And to listen to the mice and their squeaking will introduce destruction.

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[1] וז"ל הגרע"י זצ"ל בתשובה - ולפ"ז אתי שפיר גם ד' העדות ביעקב, דמיירי שהמניעה ע"י פשיעתו שבא עליה בנדתה וכיו"ב, לכן יש לחייבו במזונות אף על פי שאינה דרה עמו. אבל נידון הרא"ש והטור דהוי ע"י מחלת עצבים אין לחייבו במזונות. אולם יותר היה נ"ל לחלק כמש"כ שיש הבדל בין כשאינה חוזרת אליו לצמיתות שדעתה להתגרש ממנו, ובין כשהיא מוכנה לחזור אליו מיד כשתתבטל הסיבה והטענה שלה כלפיו. ושו"ר בשו"ת זכור לאברהם אביגדור (בדף קנח ע"ג), שהביא מ"ש ה"ה (פי"ד מה' אישות) בשם הרשב"א, שהמורדת בטענת מאיס עלי אין לה מזונות וכו', ודייק מדבריו שאפי' אם נותנת אמתלא לדבריה למה הוא מאוס עליה אין לה מזונות, כיון שאינה רוצה בו, והקשה ע"ז, ממ"ש הריטב"א הובא בשטה מקובצת (כתובות קג), שאשה שיצאה מבית בעלה והלכה לה, אם נתנה טעם לדבריה חייב לתת לה מזונות שלמים במקום שהיא, אבל אם לא נתנה טעם לדבריה פטור ממזונותיה, ואפי' למ"ד יש מזונות למורדת גמורה, התם ביושבת עמו בבית וכו'. [א"ה, וע' בשו"ת הריטב"א הנד"מ סימן קנ. ודו"ק]. ולכאורה דברי הריטב"א אלו הם דלא כמ"ש הרשב"א שאפי' נותנת אמתלא לדבריה אין לה מזונות. ותירץ, מיהו קושטא דמילתא שאינו חולק, דהריטב"א מיירי כשהיא חפצה בו, אלא שמשום איזה סיבה עזבה את הבית, כגון מפני קטטה עם חמותה וכיו"ב, ומש"ה חייב במזונותיה, אבל האומרת מאיס עלי ואינה רוצה להיות אשתו עוד למה יתן לה מזונות. ובודאי דלדידן דקי"ל שאין כופין אותו לגרש בטענת מאיס עלי, אין לה מזונות ג"כ, שאם יכפוהו לזונה, הוי גט מעושה, כיון שכופין אותו באונס ממון. ע"כ. והוא תנא דמסייע לן. (וכמ"ש ג"כ הגאון מליסא בס' בית יעקב הנ"ל