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A Suggested Antenuptial Agreement: A Proposal in Wake of Avitzur
Rabbi J. David Bleich

Some thirty years ago, the Conservative movement, through its Rabbinical Assembly of America, sought to resolve this modern-day agunah problem by incorporating into the ketubah executed in conjunction with the marriage ceremony a clause which would have the effect of compelling the parties to seek a get upon the breakdown of their marriage. The following is the English-language text of the Conservative amendment to the ketubah:
And in solemn assent to their mutual responsibilities and love, the bridegroom and bride have declared: as evidence of our desire to enable each other to live in accordance with the Jewish law of marriage, throughout our lifetime, we, the bride and bridegroom, attach our signatures to this Ketubah, and hereby agree to recognize the Beth Din of the Rabbinical Assembly and the Jewish Theological Seminary of America, or its duly appointed representatives, as having authority to counsel us in the light of Jewish tradition which requires husband and wife to give each other complete love and devotion, and to summon either party at the request of the other, in order to enable the party so requesting to live in accordance with the standards of the Jewish law of marriage throughout his or her lifetime. We authorize the Beth Din to impose such terms of compensations as it may see fit for failure to respond to its summons or to carry out its decision.1
The desired effect of this amendment is to obligate both husband and wife to submit to the authority of the Beth Din of the Rabbinical Assembly and the Jewish Theological Seminary of America. Authorization of the Beth Din to impose a financial penalty upon the recalcitrant party which, it was presumed, would be enforceable through the civil courts, was designed to assure compliance with a directive requiring cooperation in the execution of a get.

Halachic authorities vigorously opposed this innovation on a number of grounds:

  1. The Beth Din established by the Rabbinical Assembly and the Jewish Theological Seminary is composed of Conservative clergymen who are disqualified from serving as judges on rabbinic courts. The doctrinal beliefs expressly or tacitly accepted by the Conservative movement constitute a departure from the teachings of traditional Judaism of a magnitude such as to disqualify its adherents from serving as judges sitting on a Beth Din.2
  2. The proposed penalty constitutes an asmachta which is not enforceable in Jewish law,3 just as penalty clauses are ordinarily not enforceable in civil law, albeit for different reasons.4 Hence, from the vantage point of Jewish law, any attempt to exact a monetary penalty would constitute illicit extortion. Moreover, a get executed in fear that such a penalty would actually be assessed were cooperation not forthcoming would, according to many authorities constitute a get me'useh i.e., a divorce executed under duress. Such a get would be invalid.5
  3. Even assuming that the asmachta problem may be overcome in some manner and the monetary penalty rendered actionable in Jewish law, there exists grave question with regard to the validity of a get executed in circumstances in which the get is granted by a husband in order to free himself from the burden of such penalty 6

There were -- and indeed still are-many serious question regarding the enforceability of this agreement in civil courts. Nevertheless, a recent decision of the New York Court of Appeals in Avitzur V. Avitzur7 serves to endow this document with some legal authority. Despite the halakhic and legal questions which remain, the Avitzur decision points the way to the crafting of an agreement which poses no halakhic difficulty and which is enforceable in civil courts.

Avitzur represents the first occasion on which the highest court of any state has acted on a matter pertaining to the execution of a get. If proper procedures are implemented, this decision will make it easier to force a recalcitrant husband to grant a religious divorce in accordance with Jewish law. In order to assess the implications of this recent decision of the New York Court of Appeals, it is necessary to bear in mind the facts of the case.

Susan and Boaz Avitzur were married in May 1966. The ceremony was performed by a Conservative clergyman who used a ketubah in which the earlier-cited clause was incorporated. The Avitzurs obtained a civil divorce in 1978. Susan Avitzur then summoned Boaz to appear before the Beth Din named in their ketubah pursuant to the provisions of their agreement recognizing that body as having authority to counsel the couple in matters pertaining to their marriage. Boaz Avitzur refused to comply. Thereupon Susan instituted legal proceedings designed to compel Boaz to appear before the Beth Din. Boaz requested the court to dismiss the complaint, arguing that for the court to order him to appear before the Beth Din would involve the civil court in an impermissible consideration of a purely religious matter.

The Supreme Court, which in New York is a court of original jurisdiction, ruled in favor of Susan.8 It stated that ordering Boaz to appear before a Beth Din on the basis of his own contractual agreement involves no judicial entanglement in any doctrinal issue. Boaz, however, argued that, for various reasons, even on the basis of the terms of the ketubah as applied to his particular situation, he was not obligated to appear before the Beth Din. The Supreme Court accepted Boaz' contention that his obligations under the ketubah were not unequivocal and therefore ordered a plenary trial in order to resolve those questions. (Boaz argued that the agreement which he signed obliged him to appear when summoned by the Beth Din itself, but not when such a demand was made only by his wife. Moreover, he contended that since his wife did not heed an earlier demand on his part to appear before the Beth Din, he was relieved of any further obligation.)

The trial never took place. Boaz appealed the decision of the Supreme Court and the Appellate Division overruled the lower court's ruling, declaring that the ketubah is a "liturgical agreement" which has no standing in civil law.9 That finding has now been reversed by the Court of Appeals in a four to three decision. The legal effect of such reversal is that the original order of the Supreme Court requiring a plenary trial remains in effect. In its original ruling the Supreme Court declared that Boaz was entitled to a trial In order to determine upon the facts of that particular case whether he is indeed obligated to appear before the Beth Din.

Although the order of the Supreme Court required the parties to appear before the Conservative Beth Din, virtually all Orthodox rabbinic and communal organizations joined in a brief as "friends of the court" urging that, as a matter of law, the order be upheld. They did so because the principles of law involved are of concern to the entire Jewish community.

The only issue before the Court of Appeals was whether a person might be compelled to appear before a Beth Din on the basis of an undertaking executed as part of a ketubah. To this question the highest court of the State of New York answered with an emphatic "Yes!" The question of enforcing an order of the Beth Din directing the husband to execute a get was not before the court. However, although the matter is not entirely resolved, on the basis of the language of the Avitzur decision there is reason to assume that a decision of the Beth Din ordering the husband to execute a get would also be enforceable in civil courts.

In issuing this decision the Court of Appeals clearly recognized that the matter before the Court was not an order to execute a get but an action to enforce an undertaking to submit the matter to arbitration. Thus the court declared that:

Viewed in this manner, the provisions of the ketubah relied upon by plaintiff constitute nothing more than an agreement to refer the matter of a religious divorce to a nonjudicial forum. Thus, the contractual obligation plaintiff seeks to enforce is closely analogous to an antenuptial agreement to arbitrate a dispute in accordance with the law and tradition chosen by the parties. There can be little doubt that a duly executed antenuptial agreement, by which the parties agreed in advance of the marriage to the resolution of disputes that may arise after its termination, is valid and enforceable (e.g., Matter of Sunshine, 40 N.Y.2d 875, aff'g 51 A.D.2d 326; Matter of Davis, 20 N.Y.2d 70). Similarly an agreement to refer a matter concerning marriage to arbitration suffers no inherent invalidity (Hirsch V. Hirsch, 27 N.Y.2d 312; see Bowmer V. Bowmer, 50 N.Y.2d 288, 193). This agreement - the ketubah should ordinarily be entitled to no less dignity than any other civil contract to submit a dispute to a non-judicial forum, so long as its enforcement violates neither the law nor the public policy of this State (Hirsch V. Hirsch, supra, at p. 315).10

In this decision the Court of Appeals ruled that an agreement to arbitrate the issue of religious divorce could be enforced "upon application of neutral principles of contract law, with no reference to any religious principle11 and hence that enforcement of such an agreement involves no judicial entanglement in matters of religion. The question of whether application of a neutral principles doctrine would similarly render an agreement to execute a get enforceable in a civil court was not decided since that issue was not before the court.

The Court of Appeals recognized that a ketubah is indeed a contract between the bride and the groom entitled to the same dignity and standing as any other civil contract. Antenuptial agreements to refer disputes associated with the marital relationship to arbitration are routinely upheld by the courts. The agreement to appear before a Beth Din was recognized by the court as an agreement to arbitrate disputes before a specific body. The court also acknowledged that in agreeing to submit their disputes to a Beth Din the parties recognized that the Beth Din would apply provisions of Jewish law in rendering a decision. The Court of Appeals found this to be entirely acceptable and upheld the right "to arbitrate a dispute in accordance with the law and tradition chosen by the parties."

It must be emphasized that the Court of Appeals was not asked to rule that in signing a ketubah the husband obligates himself to execute a get whenever an irreparable breakdown of a marriage occurs (as did a Canadian court in Morris vs. Morris)12 or even when required by Jewish law (e.g., in cases of adultery, as did a New York court in Stern vs. Stern13 and a New Jersey court in Minkin vs. Minkin).14 In light of the narrow majority in Avitzur it is unlikely-but not impossible-that the same court would construe the traditional ketubah used by Orthodox Jews, which does not contain an explicit arbitration clause, as requiring the parties to submit to the jurisdiction of a Beth Din for the purpose of adjudicating a claim for the execution of a get. But the Avitzur decision does mean that when a separate document is executed at the time of a wedding explicitly binding the parties to appear before a particular Beth Din upon dissolution of the marriage by civil divorce, such an agreement would be enforced by the courts and appearance before the Beth Din could be compelled.

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