About Prenuptial Agreements
Part 3
Are Halakhic Prenups Something New?
A new tool in the toolbox against iggun, in particular, against get withholding by husbands?
No.
Not at all.
Many pronouncements make it sound as if prenups are a newly discovered means to protect women from marriage and divorce abuse-- in particular, from get withholding, which is also alleged to be a new, recent, form of marital abuse.
NEITHER ASSERTION IS TRUE.
Get withholding and extortion are nothing new. (See FAQs--Circumstances Through Which Women Become Agunot).
And neither are halakhic prenuptial agreements.
They were in use throughout Jewish history, in every community and custom.
The KETUBBAH is a prenuptial agreement—
a unilateral one, from the groom to the bride, intended to mitigate the financial consequences of divorce to women and to institute thereby a brake on men rashly divorcing wives.
The ketubbah is so ancient, it is assumed in the first rabbinic law code, the Mishna (codified ca. 200 CE), although its specific text was not laid out there. That text became fixed and formulaic centuries later though its terms were also typically adapted to individual cases in eras—unlike our own—in which the ketubah functioned as a legal and enforceable document—the prenup that it is.
But Jews also wrote highly detailed prenups for individual couples throughout Jewish history, up into the modern era.
This was normal, ubiquitous, Jewish practice in communities of every halakhic custom: in the Middle East and North Africa, in Sepharad, Ashkenaz, Italy, the Mediterranean, Eretz Yisrael.
These prenups dealt with every conceivable practical detail for the wedding and the marriage:
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what each side brought into the marriage in means;
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where the couple would reside—including explicitly protecting the wife’s right to remain near her family of origin, this, because marriages were typically patrilocal (the bride went to the groom’s place of residence) and brides could be very young;
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protecting the wife from abusive demands a husband might make, e.g., forcing her to account for household furnishings upon his return from travel, or prohibiting her from seeing her family;
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in communities in which polygyny was practiced, giving the wife the right to deny the husband taking an additional wife, and specifying financial consequences for violation.
There were prenups to deactivate the Biblical requirement of levirate marriage in case of the death of a husband in a childless marriage—
Such prenups specified that the widow in such a case would not have to marry the deceased’s brother (levir/ yabam; levirate marriage), or get release (halitsa) from him (often the occasion for extortion), in order to marry someone else.
THESE PRENUPS DEACTIVATED A BIBLICAL REQUIREMENT
--and were standard, commonly used, in pre-modern, traditional communities-- THERE WAS NOTHING ELSE—across the Jewish world.
Sometimes, such prenups specified the maximum amount a levir could demand in compensation for giving the widow halitsa—so common was halitsa extortion throughout Jewish history, just as was get extortion.
Prenups were often contested-- meaning, they were litigated in rabbinic courts—and often in non-Jewish—Muslim (Islamicate), and Christian (non-ecclesiastical) courts.
Then, as now, one side in such litigation won-- meaning, the other side lost.
Women without means, then as now, had no means to pursue such litigation, so lost automatically.
Whatever was written and signed and witnessed to protect women, with or without means, did not necessarily do so.
And does not do so now.
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So:
Prenups are nothing new!
They did not prevent iggun in the past
and they don’t prevent it now.
The best prenup is that of the Center for Women’s Justice. Get full information about it and its full text, in English and Hebrew, by searching: “prenup of the Center for Women’s Justice” or via the Center’s website: https://www.cwj.org.il/en
CWJ Prenuptial Agreement for Mutual Respect
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