Refuting the RCA
Prenup - Text of the RCA prenup argument and my comments that the RCA prenup is
forbidden for many reasons.
David
Eidensohn <eidensohnd@gmail.com>
August 19.2017
Refuting the RCA
Prenup
By Rav Dovid
Eidensohn Monsey NY
Jewish Divorce
and the Role of The Prenup
The Torah views
marriage as a vital institution in Jewish life. But the Torah also recognizes
that in some cases marriages do not work out and need to be ended. In order to
do so, the husband must willingly give, and the wife must willingly receive, a
Jewish bill of divorce, known as a Get. In the absence of a Get, the husband
and wife are both precluded from remarrying. Later offspring of the wife may
bear the stigma of mamzerut (illegitimacy).
Dovid Eidensohn comments:
Later offspring of the wife may bear the stigma of mamzerut
(illegitimacy). I feel it is important to be more specific about what
makes mamzerut from a married woman. Mamzerut from a married woman comes about
if she sleeps with another man not her husband. A woman who hates her husband
may be easily tempted to sleep with another man not her husband. But what is
happening today is that many “rabbis” have invented a new law, that a husband
who does not give a GET willingly when the wife demands it, may be forced to
give a GET. A forced GET is invalid and if the woman remarries with an invalid
GET her children from the new husband are mamzerim. The sin of forcing a GET is
a Rashbo in VII:414 and it is quoted by all five poskim in the Shulchan Aruch Even
Hoezer Laws of Kesubose 77 par 2 and 3. The Vilna Gaon there says that
everybody agrees to this. Everybody, except the RCA and its “Gedolim.” But what
I just said is really a bit old fashioned. The new style, pioneered by a
certain Rosh Yeshiva in Philadelphia, is to tell a woman she doesn’t need a
GET, but she can just leave her husband. That surely makes mamzerim. But we
have a case in Philadelphia where the woman who left without a GET is living
with a strange man and both of them have bought an ad on the Yeshiva Kollel
dinner. This shows you where the world is going when you invent the new Torah.
This is
also something done by Rabbi Gedaliah Schwartz and I spoke to him about it and
he said that he allowed two Orthodox spouses to leave when they wanted a GET
because they didn’t need a GET. I asked him why they didn’t need a GET when
they were Orthodox, the witnesses were Orthodox, the woman got a ring from the
husband and they lived together for a month. He replied “Because there was no
Biah.” The halacha clearly taught in the Tur Shulchan Aruch Even Hoezer laws of
Kiddushin chapter 26 is that there are three ways to acquire a woman in
marriage. One is giving her a valuable. One is giving her a marriage document.
And another way is Biah. Thus, either one of these three acquisitions suffices;
it is not necessary to combine two or three together, and if a man gives a
woman a valuable or money that is enough, no Biah is required, and no marital
document is required. This is a clear teaching in the Tur Even Hoezer in the
beginning of the Laws of Kiddushin, but the senior expert in Gittin in the RCA
did not know this. What else don’t they know in the RCA? Are we going to have a
prenup made for all RCA people when the senior rabbi of the RCA doesn’t know
the first law of Kiddushin and sends a man and woman away without a GET
although they asked for a GET?
The Tur Even
Hoezer 76 and the Shulchan Aruch Even Hoezer 76 paragraph 11 say that a husband
who does not fulfill his obligation to give his wife marital satisfaction may,
at times, not be able to stay married to her and must give a GET. This applies
to the husband who is unable to be with his wife in marital terms due to his
physical condition that he is sick or weak. If the problem lasts more than six
months the husband is obligated to give his wife a GET, unless she specifically
forgives him. In paragraph 13 the Shulchan Aruch deals with a man who simply
refuses to have relations with his wife, period, not now and not later and not
ever. Such a person must give his wife a
divorce if she demands it. I mention this because in the case of Rabbi Gedaliah
Schwartz sending two Orthodox Jews who married with a rain in an Orthodox
ceremony with Orthodox witnesses, etc., why did Rabbi Gedaliah Schwartz refuse
to give them a GET when they asked for it? He told me he did that because there
was no Biah. But we showed before that the Shulchan Aruch and the Tur clearly
teach that the ring is enough to acquire the wife in marriage, not Biah is
necessary.
Somebody
suggested that perhaps the fact that the husband was unable to perform somehow
created a situation where the Kiddushin were negated and there was no marriage
and thus no need for a GET. But the Shulchan Aruch we quoted and the Tur in
chapter 76 clearly state that a husband who cannot, physically, satisfy his
wife, or who refuses to ever give his wife marital satisfaction, is obliged to
give a GET. The exact words are “He must divorce her and give her a Kesubo.”
Now, surely, somebody who has to give a Kesubo, which could be a large sum of
money, only does that when there is a valid Kiddushin. So if there is a Kesubo,
surely there is a valid Kiddushin. But the husband must give a GET to release
his wife from living without intimacy. What Rabbi Schwartz did to send husband
and wife away with no GET is completely wrong.
End comment D.E.
RCA says
In some cases,
spouses have purposely withheld a get even where their marriages have functionally
ended. Some spouses have refused to participate in the get process in order to
extract concessions in divorce negotiations, in order to extort money, or
simply out of spite.
Dovid Eidensohn:
It is true that not all husbands willingly give a GET because the wife demands
one. The above comment is true, but we are left with the question of why the
author did not write a bit longer to explain two things. One, that the halacha
in Even Hoezer 77 par 2 and 3 as taught by all five poskim there, the Shulchan
Aruch, the Ramo, the Gro, the Beis Shmuel and the Chelkas Mechokake say clearly
that a husband must not be pressured to give a GET. If the GET is pressured, it
is very possible it would be invalid, and the woman using it to remarry would
have a problem if her children are kosher children. The Gro there has a very
long discussion of this and says that everyone agrees with this not to force
the husband to give a GET. The PRENUP, of course, is simply a device to force a
GET from the husband. The RCA wants to make it standard so that all woman can
force their husband to give a GET whenever they want out. This is forbidden by
a Mishneh Nedorim 90B that although originally, we believed women in their
stories that required a Beth Din to force the husband to give a GET, this
practice stopped when it became a problem because a woman could possibly use
her stories not because they were true but because she found a cute fellow she
wants to marry. This is the halacha and the basis for not believing women who
demand a GET from their husband because he is disgusting to them, as taught by
Rabbeinu Tam in Tosfose Kesubose 63b.
If it was permitted to force the
husband to give a GET, if the husband loves his children and the wife wants to
take them to a distant place, why should he just fork over the GET? Is he a
human being or a creature for the woman to control? But let us keep to the
point. The halacha is that a husband may not be forced to give a GET and may
not be pressured. The Shita in Kesubose says that one may not tell the husband
it would be a proper thing to give a GET.
Traditionally,
rabbinical courts (batei din) have been charged with the responsibility of
overseeing the process of Jewish divorce, and ensuring that get is not
improperly withheld.
Dovid Eidensohn:
The Chazon Ish says Even Hoezer Noshim Gittin 99:2 that any force on the
husband can ruin the GET. He says that a Beth Din that requires the husband to
give a GET and the husband is not one of those very few people in Shulchan
Aruch required to give a GET, then the GET is invalid for two reasons. One, it
is a GET given by the husband with force, because a Beth Din that forces has
the status of ONESS, unless the Shulchan Aruch says clearly that it is a
mitsvah to force the GET. Secondly, if the husband would know that the Beth Din
made a mistake to force him because the Shulchan Aruch does not consider him to
be a person who may be forced to give a GET, he never would have given the GET.
Therefore, the GET is invalid for two reasons, ONESS and error, and is on both
counts botel min haTorah.
To show just how delicate all of this is.
The Shulchan Aruch has a discussion about a husband who is a MUMAR, he changed
his religion and no longer believes in the Torah or practices Judaism. Can he
be forced to give a GET? The Yam Shel Shlomo discusses this in the sefer of
teshuvose of Maharshal, Ramo, and Maharam Lublin: See Maharshal teshuvo 41. If
the Mumar can maintain marital relations with the wife ??? ????
?????? even if he has changed religions and doesn’t keep the Torah we
don’t force him to give a GET. Maybe the wife will influence him to change back
to being a Jew. The Maharam is quoted by Maharshal that we don’t force a
Meshumed to give a GET. In Shulchan Aruch Even Hoezer 154:1 we have an argument
if a Mumar can be forced to give a GET.
The idea that Beth Din can just
order husbands to give a GET or suffer is not based on the Shulchan Aruch and
it ignores the Chazon Ish. Again, the statement by the RCA that a Beth Din of
the RCA can control whether a GET should be given is completely wrong.
However, in
modern society batei din frequently lack the authority to do so. The Prenup is
a document entered into by a man and woman prior to their marriage. It provides
that in the unfortunate event of divorce, the beit din will have the proper
authority to ensure that the get is not used as a bargaining chip.
Prenup
essentially contains two provisions:
1. Each
spouse agrees to appear before a panel of Jewish law judges (dayanim) arranged
by the Beth Din of America, if the other spouse demands it, and to abide by the
decision of the Beth Din with respect to the get.
Dovid Eidensohn:
The RCA wants everyone to sign a prenup and this would require everyone to come
to the RCA Beth Din. But the RCA Beth Din has members who are not great
believers in the Shulchan Aruch and Poskim especially when it comes to
demonizing husbands and protecting women. Therefore, no husband should ever
sign a prenup that forces him to go to a RCA Beth Din.
2. If
the couple separates, the Jewish law obligation of the husband to support his
wife is formalized, so that he is obligated to pay $150 per day (indexed to
inflation), from the date he receives notice from her of her intention to
collect that sum, until the date a Jewish divorce is obtained. This support
obligation ends if the wife fails to appear at the Beth Din of America or to
abide by a decision of the Beth Din of America.
Dovid Eidensohn
- If the couple separates, the Jewish law obligation of the husband to
support his wife is formalized, so that he is obligated to pay $150 per day
(indexed to inflation), from the date he receives notice from her of her
intention to collect that sum, until the date a Jewish divorce is obtained. “If
the couple separates” means that the wife walks out of the house. If so, the
husband is obligated immediately to start paying her $150 a day. This is called
by the RCA “the Jewish law obligation of the husband to support his wife.”
Where does it say in Jewish law that the wife who walks out on the husband must
be paid $150 a day or anything? See Shulchan Aruch Even Hoezer 70 the
obligation of the husband to feed his wife and children. The sums there are
about a wife who lives in the house not one who ran away. And the sums
there are nothing like $150 a day. This prenup is pure blackmail to force a GET
whenever the wife wants it. And that, specifically is forbidden by the Mishneh
in Nedorim 90B, because if a woman has the power to force a GET she can just
decide to remarry and find someboy cuter than her husband. Therefore, the
Mishneh clearly says that we don’t allow a woman the power to force a GET,
ever. If Beth Din or proper witnesses can testify that the husband is somebody
who must be forced to give a GET, that is one thing. But the wife herself
cannot force a GET, period. This is because we fear she wants to change
husbands. ??????? ??? ????? ???? ????. This is also quoted in Tosfose
Kesubose63b by Rabbeinu Tam. Again, the statement that Jewish law obligates
a husband to support his wife when she demands a GET and wants to leave the
house is completely wrong. Also, forcing the husband to pay “the Jewish law
obligation” is wrong because there is no such Jewish law. And forcing the
husband to pay $150 a day to force him to give her a GET has nothing to do with
Jewish law and is forbidden completely by Jewish law according to the Mishneh
in Nedorim 90B.
3. Each of these
provisions is important to ensure that a get is given by the husband to his
wife in a timely manner following the functional end of a marriage. The first
obligation grants authority to the rabbinical court to oversee the get process.
The second obligation provides an incentive for the husband to abide by
decisions of the rabbinical court, and give a get to his wife once the marriage
is over and there is no hope of reconciliation.
Dovid
Eidensohn: there is no hope of reconciliation. On my brother Daniel’s
blog daattorah, there was, a year or two ago, a war between husband and wife
and everyone thought that it would surely end quickly. Well, one day we had a
picture of the two lovie dovies and to my knowledge that is the latest status.
Anyone who says that “the marriage is over” is probably a feminist who wants to
demonize men and support women. Incidentally, the horrible war against Aharon
Friedman had the RCA ORA people in full throat to demonize him, and have him
thrown out of the Washington shulls, but the wife, who ran away with their
baby, is ignored. Now she left the husband with no GET, remarried a strange
man, and by the RCA and its feminists, that is fine. She and her new boyfriend
recently both signed up an ad for a Yeshiva affair in Philadelphia. So
the Washington rabbis and other RCA and feminist people hate Aharon Friedman, a
person who followed exactly the instructions of the Baltimore Beth Din, and
they love Tamar Epstein, who ran away with their baby and then left her husband
and shacked up with a strange man with no GET. She is a zona but the Washington
rabbis and the RCA and the feminists never criticize her.
There are at
least four reasons to sign The Prenup:
1. It
is an act of kindness to prevent suffering.
People follow the
examples of others. Even if you are sure that the plight of the agunah (a woman
whose marriage is functionally over, but whose husband refuses to give her a
get) will never be your own, you should sign The Prenup as part of an effort to
make The Prenup a standard part of every Jewish wedding. If our collective
actions can bring that about, we will have played an important role in solving
one of the great crises of Jewish life in modern times, and we will prevent
other people from suffering.
Dovid Eidensohn –
Does the Prenup present kindness and prevent suffering? Is the man who must
divorce his wife and leave his children and maybe get kicked out of his house
suffer? Well, that doesn’t count. RCA are feminists. But even feminists must
realize that some of the children who will suffer from the divorce of the
father may be girls. Is the RCA sure that all girls are thrilled when their
father is forced to break up the family?
2. It
is a pragmatic document.
Aside from the
inherent emotional trauma of a divorce, divorces often result in prolonged and
expensive battles over finances and custody. In some cases, adding the issue of
the get, and when and whether it will be given, can serve to add mistrust and
emotional upheaval to a process that is already very painful. By signing The
Prenup, couples ensure that if the tragedy of divorce ever befalls them, the
get will not become an issue of contention.
Dovid Eidensohn-
As we mentioned earlier, the RCA neglects to mention that a clear Mishneh in
the Talmud, 90b in Nedorim, clearly forbids a woman to be able to say something
and force a GET. But who cares about a Mishneh if you are a feminist? And
incidentally, the teaching of the Mishneh, that when a woman demands a GET with
the strongest reasoning in the world she can’t get it, because we suspect her
of saying things to get rid of her husband so she can marry somebody
else ??? ????? ???? ???? is also mentioned in Tosfose Kesubose 63B.
But the RCA is so busy inventing a new Torah it has no time for Mishnehs and
Tosfose.
3. It is an
opportunity for a couple, on the eve of their wedding, to demonstrate their
respect for each other.
The Prenup is a
commitment between husband and wife that even in the very worst scenario, even
if their relationship falters unimaginably, they will not harm each other and
will treat one another with respect and basic dignity. There is no better way
to start off a marriage than to say to your partner: Even in the very worst
circumstance, even if this union should end, Heaven forbid, I will not allow
myself to act indecently toward you.
Dovid Eidensohn –
A wife who forces a husband who is struggling financially to fork over every
day $150 is concerned about respect for each other?
4. To protect
yourself.
Marriage is an
act of trust. Most often we trust that our marriage will be successful, and
that the person we are marrying would never do anything to harm us. There
are no guarantees in life, and it is important to take safeguards to protect
ourselves from harm in the future.
Dovid Eidensohn –
Yes, the RCA has revealed to us that when the husband signs over his life to
his wife who threatens to rip his pants off financially, and she then takes the
GET and kicks him out of the house, this is because the RCA has declared that
“marriage is an act of trust.”
The Prenup was
drafted by Rabbi Mordechai Willig, Sgan Av Beth Din of the Beth Din of America,
and a Rosh Yeshiva at the Rabbi Isaac Elchanan Theological Seminary of Yeshiva
University, in consultation with halachic and legal experts. The concepts
contained in The Prenup predate 1994, when it was introduced. In 1664, Rabbi
Shmuel Ben David Moshe Halevi, the rabbi of Bamberg, Germany, published a
compilation of Jewish legal forms called the Nachalas Shiva. One of the forms
in that book is a version of the tana’im, a Jewish wedding document, with a
provision that is very similar to The Prenup. In a footnote to that
provision, the Nachalas Shiva cites some authorities who held that the
provision dates back to the Takanos Shum, the authoritative communal enactments
adopted in the early Middle Ages by the leaders of the German communities of
Speyer, Worms and Mayence.
Dovid Eidensohn:
The concepts contained in The Prenup predate 1994, when it was introduced. In
1664, Rabbi Shmuel Ben David Moshe Halevi, the rabbi of Bamberg, Germany,
published a compilation of Jewish legal forms called the Nachalas Shiva. One of
the forms in that book is a version of the tana’im, a Jewish wedding document,
with a provision that is very similar to The Prenup.
When I heard once
the RCA claim that the source of the prenup was the work Nachalas Shiva I found
in chapter nine the first document whereby a wife was mistreated by her husband
and she fled to her father’s house. The Beth Din was summoned but it will take
time for it to get organized to hear the case. Therefore, on the document
prepared for just such a problem, it says that when the wife flees the house of
the husband and stays with her father, the husband must pay for her food on a
regular basis until the Beth Din will deal with the case and hopefully restore
the marriage. This is not a prenup. A prenup is about breaking a marriage and
forcing the husband to pay money until he gives a GET. That case is about a
husband who forced the wife to leave the house and he has to pay her for her
food until the Beth Din meets, and will surely make sure that the husband
learns to behave in the house. If so, this is not a prenup that breaks up a
marriage, but a sum to keep the wife in food until the Beth Din can
restore the marriage when the husband is told how to behave in the house
with his wife. Also, the RCA prenup is designed to break the husband
financially to pay $150 a day until he gives her the GET. This is about fifty
thousand dollars a year. The story of the woman who fled her house has the
husband paying once a month for her food, nothing more. How can Rabbi
Willig compare these two things and say that the story of feeding his wife for
a month or so is the same as his prenup that forces every husband to spend
fifty thousand dollars a year or give a GET? I also checked out his claim that
the Nachalas Shiva presents something like a prenup calling it similar to
Takanas Shume. I checked out the statements in the Nachalas Shiva and Takanas
Shume, and there are many references to Takanas Shume. But what I saw of the
references are about a wedding when each side pledges money to the other side.
If the wife is pledged valuables and she dies, what is done with the money?
That is the Takana of Shume, and what to do with a dead wife’s property has
nothing to do with a prenup. There are also other Takanas to take care of
problems that arise in the marriage similar to the death of the wife I
mentioned before.
Bottom line: The
RCA is doing a terrible sin by presenting Prenups. The Mishneh in Nedorim 90B
clearly forbids giving a woman the power to force a GET on her husband in any
circumstances. We fear that she merely wants to find a new husband. This is
repeated in Kesubose 63b in Tosofse. The incredible amounts of money the
husband has to pay, about fifty thousand dollars a year, have absolutely no
source anywhere in the Torah. The halacha of how much a husband has to pay for
his wife’s food is a tiny, tiny fraction of that. See Even Hoezer chapter 70.
The RCA prenup is
a document that is designed for all families that belong to the RCA to sign
upon their marriage. A person who refuses to sign it or a similar document is
considered an enemy of women which in the RCA is a very serious crime.
Therefore, we ask a simple question. Let us take me as an example. I marry a
woman. Fine. But assume that I am part of the RCA and get told that all RCA
people are to sign prenups. If I resist I am looking for trouble. I am defying
the entire RCA that has made the prenup the solution for all problems women
have with Kiddushin. Now my wife is urged to really let me have it and force me
to sign the prenup. At this point, if I refuse, I am starting off my marriage
on the wrong foot. This could be real trouble. Maybe if the rabbis in the RCA
get to my wife there will be a real GET. So, what can I do? Either I break my
marriage and give her a GET, or else get ready for a rocky life. This is ONESS,
a force done by the RCA that pressures husbands to sign a prenup. Any husband
who signs such a document gets absolutely nothing out of it other than the
distinct possibility that at any juncture in his marriage the wife can threaten
him to do something or else. This is a terrible ONESS or threat and it
certainly has all of the ingredients, not of a prenup, but of a forced prenup,
and a forced prenup is only for one purpose, to create a forced GET. That GET
is very likely forced and invalid, and if the wife gets a divorce with such a
prenup, her next children will be most likely mamzerim.
Furthermore,
in Choshen Mishpot we have great emphasis in chapter 2007-208
about ?????? when somebody performs a monetary act that he is not
really interested in keeping. An ?????? can often be invalid.
This prenup is an ideal candidate for ??????. It is an ideal candidate for
a woman having the power to get rid of her husband whenever she wants and find
another husband. This is known as ??? ????? ???? ???? maybe her eyes
are set on another man to become her husband. Here we have serious problems
with the prenup. And the statements of Rabbi Willig that he found similarities
to prenup in Nachalas Shiva is pure baloney. Interestingly enough, he doesn’t
tell us where those similarities are in that book, as I did. He just said
things that are as far as I can tell are completely wrong.
Bottom Line: Any
man who signs an RCA prenup is signing away his life. And all of the
reasoning quoted here from the RCA to show how the husband benefits from
signing away his life, are completely ridiculous. They are also violations of
the Mishneh in Nedorim 90b and the Mishneh in Kesubose 63b that we do not allow
a woman the power to switch husbands ??? ????? ???? ????. The prenup is
also likely to be ?????? which is a commitment a person makes but
doesn’t really mean it. What can be more of an ?????? than a
man signing an RCA prenup?
The Chazon Ish we
mention above says that a Beth Din that orders a husband to give his wife a
divorce and the husband is not one of the very few people that the Shulchan
Aruch says must give a GET to his wife, that the GET is invalid by the Torah
because the Beth Din ordered it which is in the category of ONESS or force, and
the GET is botel min haTorah. Also, if the husband would have known that the
Beth Din are mistaken and have no right to order him to give a GET, he never
would have done it. Two reasons why the GET is botel by the Torah when the RCA
Beth Din requires a prenup.
I feel I have
presented effective reasons why I oppose Prenups. The question is only when the
RCA succeeds in making many men write prenups, and they divorce their wives as
per her request, and then the wife remarries, and people like me think it is a
question of mamzeruth for her new children, what happens then? At this point, I
am probably going to say it like it is. I think those babies born from those
prenup ladies who forced their husbands to give a GET are probably mamzerim. I
say probably because there are various halachic aspects besides the basic
questions that I presented. If the husband assumed that his wife would not
demand a GET, does his agreement to sign the prenup become asmachto, an
insincere obligation, when she does demand the GET? And if the prenup is
asmachto or invalid, how can the RCA force the husband to honor the prenup
which he now knows is an insincere signing of a document. A prenup is the
ultimate document signed with insincere reasons or doubts and it is probably
invalid. But the RCA is not troubled with this or the Mishna or the Tosfose or
the Chazon Ish. It just wants to save the world with prenups, an act will
surely produce many mamzerim.
Question: If the
husband knew his wife would live with him a few years, have a few children, and
then kick him out of the house, would he have signed the prenup? Of course not.
If so, the entire signing is asmachto.
But for now I
want Rabbi Willig to explain to me why his Prenup is permitted based upon the
Mishneh in Nedorim 90B. And does he dismiss the Tosfose in Kesubose 63b that we
suspect a woman of saying something to get a GET so she can remarry with a new
husband? And is he sure that the Chazon Ish is wrong when he says that a Beth
Din that demands a GET produces a GET that is ??? ????????? for two
reasons? And I want him to perform the impossible by showing me a real proof in
the Nachalas Shiva that prenups are kosher and acceptable.
2016 Resolution:
Requiring the Use of Prenuptial Agreements for the Prevention of
Get-refusal
Adopted by direct
vote of the RCA membership.
Click here for
press release.
Sep 22,
2016 -- Whereas our tradition celebrates married couples living together
in peace and harmony, in love and devotion all of their lives; and,
Whereas the Torah
recognizes that some marriages cannot be sustained and therefore provides
procedures for the termination of those marriages; and,
Whereas in some
unfortunate instances a husband or wife refuses to cooperate with the
appropriate instructions of a beth din regarding the termination of their
marriage with a get, thereby preventing their spouse from building a new
family life; and,
Whereas the
prenuptial agreement of the Beth Din of America (BDA) has obtained the approval
of dozens of leading rabbinic authorities and remains, in the eyes of both
activists and scholars, the single most effective solution to
the agunah problem; and
Whereas even
those members of the Rabbinical Council of America (RCA) who follow rabbinic
authorities who rule differently than those of the BDA can use a different
prenuptial agreement that meets the requirements of their rabbinic authorities
Therefore the
Rabbinical Council of America declares that each of its members must
utilize, in any wedding at which he is the officiant (mesader kiddushin), in
addition to a ketubah, a rabbinically-sanctioned prenuptial agreement,
where available, that aids in our community's efforts to ensure the timely and
unconditional issuance of a get.
