Most men and women don’t initially set out to cause pain and anguish to their spouses. However, the process of divorce can bring out the worst even in people who are usually well-intentioned, and there are also some malicious get-refusers. To counter this behavior and prevent get refusal, rabbis both in the U.S. and Israel have composed several versions of a halachic pre-nuptial agreement.
Couples sign a halachic prenup out of love and care for each other, in order to protect one another from the worst version of themselves (or against unforeseeable mental or other problems). Even if they personally wouldn’t consider acting in such a way, the blanket signing of a Jewish prenuptial agreement by all couples as a social norm helps ensure that everyone will sign, including those who eventually need it.
Couples who have not signed a prenup before marriage, which is preferred, are encouraged to sign a halachic post-nuptial agreement.
By signing a halachic prenup (or post-nup), the parties agree that if one or both want to end the marriage, they will act with dignity and treat each other with respect. Parties to a halachic pre-nuptial agreement consent to go to a bet din, to give or receive a get, and to reach a settlement, all within a reasonable period of time. (This agreement is different from a standard monetary pre-nuptial agreement, which is designed to divide assets and property in case of divorce, though a couple can sign both, and they can cross-reference each other.)
The more widely-accepted halachic prenups contain a financial disincentive to stall giving or receiving a get, which has proven effective in most potential refusal situations.
The incentive to divorce in a timely, cooperative manner is worded halachically in a fashion that avoids the problem of a “forced” get, which would be invalid, since a get must be given of the husband’s free will. The halachic prenup establishes that a refuser agrees to pay a significant monthly monetary sum (up to half of the refuser’s income) for as long as the get refusal persists.
To avoid being considered an invalid “forced” get, this sum is defined as “spousal maintenance” and is technically taken on as a legal obligation at the time of marriage. The payments are also deliberately defined as a reasonable sum of money so as not to be considered an invalid “penalty”.
This type of prenup is halachically recognized by many recent major poskim, including Rabbi Yaakov Bezalel Zolti z”l, Rabbi Chaim Zimbalist z”l, Rabbi Ovadiah Yossef z”l, Rabbi Gedaliah Dov Schwartz z”l, and Rabbi Zalman Nechemiah Goldberg z”l, as well as leading poskim of today, including Rabbi Herschel Schachter, Rabbi Mordechai Willing, Rabbi Shlomo Amar and Rabbi Asher Weiss.
