The Contract is suitable for all couples who marry through the Israeli Rabbinate.It is also suitable for couples who sanctify their relationship with "kiddushin" in private halakhic ceremonies whether or not they also marry in secular, civil ceremonies outside Israel.
If one marries in accordance with halakha, problems might arise, for example: get refusal, aginut, mamzerut, andchalitza. These challenges are particularly acute in Israel where halakha has been incorporated into the laws of the State of Israel. [i]
[i](1) Get Refusal: Under halakha, a woman is not divorced until her husband delivers a Jewish bill of divorce-- a get-- to her. If he refuses, she remains married. This is the case even when a rabbinic court issues an order "forcing" a husband to give a get, for example putting him in prison. Tsivia Gordochsky's husband has been in an Israeli jail for 16 years for refusing to divorce her. But Tsivia is still married. She is considered a "mesurevet get," a woman who is refused a divorce.
(2) Aginut: Under halakha, a woman whose husband is missing or incapacitated is called an agunah, which means "anchored" in Hebrew. An agunah is anchored to her marriage because her husband is physically unable to deliver a get to her. Without an actual get delivered into her hands, a woman remains married. Recently, the story of the Agunah from Safed made headlines. Her husband is unconscious and hospitalized due to head injuries sustained in a motor cycle accident. After seven years and much outcry, a single rabbinic tribunal in Israel finally freed her. But many rabbis, including the Chief Rabbis, criticized the tribunal of this court.
(3) Mamzerot: Under halakha, a child is considered a mamzer if born out of a relationship that is "forbidden" under the Torah. This includes, for example, a child born as a result of a relationship between a woman and: her late husband's brother (if the woman had had children from her husband); her sister's ex-husband; her nephew; and a man who is not her husband (even when her husband is incapacitated or a get refuser).
It is forbidden for a mamzer to marry another Jew if that Jew is not a mamzer, or a convert. It does not matter whether a woman willingly had forbidden relations, or whether those relations were forced on her. If a mamzer has children, those children and their descendants for all generations are similarly stigmatized.
(4) Chalitza: If a man dies without children, the halakha does not permit his widow to remarry unless her husband's brother is released of his halakhic obligation to marry her-- chaliza. The release ceremony cannot be performed if the brother is a minor, incapacitated, or simply refuses to cooperate. Sometimes, a brother may demand payment in exchange for this cooperation.
The first part of the CWJ Contract (entitled "Undertaking") uses legal tools to curtail the incidences of get refusal. Under this part of the Contract, the parties agree that get refusal causes harm. The Agreement confers authority to non-ecclesiastical, courts to calculate and award these damages.
The second part of the CWJ Contract (entitled "Terms of Marriage") uses halakhic tools to empower a rabbinic court to eliminate problems of aginut, get refusal, mamzerut, and chalitza. It sets terms upon which a rabbinic tribunal can declare a Jewish marriage over.
Yes. But we recommend signing both parts.
Only partially.The Agreement assumes that most spouses will prefer to arrange for a get and not cause compensable harm. However, there are wealthy, vengeful, poor, and missing spouses on whom the Contract will have little, impact.
The Terms of Marriage section provides a systemic solution to the problems of get refusal,aginut, chalitza, andmamzer.However, it depends upon the ability to convene a rabbinic tribunal willing to recognize and implement the mechanisms introduced in it to affect that solution.CWJ believes that when faced with difficult cases, even the rabbinic courts, which normally interpret halakha in a narrow and strict manner, will implement the Terms of Marriage.
To date, the Chief Rabbinate has not approved of any prenuptial agreement.
With the exception of the Lookstein Prenup drafted in New York in 1990's, no other prenup aside from CWJ's ("Undertaking") refers to get refusal as compensatory harm and confers jurisdiction to a non- ecclesiastical court to award damages for that harm.
The Agreement for Mutual Respect (AMR) relies on the obligation to pay extra-ordinary support as an incentive to deliver a get. The AMR also leaves the race to the Israeli courthouse in place (Clause H). This allows for the possibility that a rabbinic court will take jurisdiction to invalidate that support undertaking.
The Tzohar Love Agreement is an arbitration agreement. Like the AMR, it relies on a spouse's undertaking to pay extra-ordinary support as an incentive to deliver a get. However, the Tzohar Agreement gives broad discretion to the appointed arbitrator to delay payment of the support obligation indefinitely without giving reasons for doing so (Clause 5 and Appendix A). In general, CWJ does not recommend the signing of arbitration agreements which by definition abridge a party's right to appeal. In addition, CWJ feels that arbitration is inappropriate inthe context of Jewish divorce where men and women do not have equal power relations.
Neither the AMR nor Tzohar Prenups provides for the possible dissolution of a Jewish marriage without the agreement of both spouses to the divorce. CWJ's Terms of Marriage allows for this. It is based on Rabbi Michael Broyde's tripartite agreement. CWJ's Terms of Marriage is shorter than Broyde's, and, unlike Rabbi Broyde's, it also includes provisions to try to prevent problems of mamzer.
Of course. In the introduction, the Contract states specifically that reconciliation is preferred and encouraged. However, unlike other prenups, it does not elaborate on how to go about this. It is CWJ's opinion that if reconciliation were possible, a couple will make all efforts to rehabilitate their marriage at their own initiative and terms.
The first part of the Contract ("Undertaking") should be signed in front of a notary before the wedding.After the wedding, the Agreement must be signed before a judge of the family court.
The halachic portion of the Contract ("Terms of Marriage") also must be signed before the wedding. This should be done in front of two halachically acceptable witnesses --observant men who are not relatives of each other or of one of the spouses.
No. So long as a couple lives together and no one wants a divorce, their marriage is like any other. Our sages recognized the need for, and approved of, adding "terms" to a marriage contract already in the times of the Mishnah.