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

As noted earlier, Orthodox objections to use of the Conservative ketubah center upon the qualifications of the members of the particular Beth Din designated in that document and upon the monetary penalties provided for failure to abide by the decree of the Beth Din. It is readily apparent that an agreement which is not flawed in these respects is not halakhically objectionable.15 Elimination of those aspects of the agreement would present no barrier to civil enforcement. Certainly, a stipulation to appear before a specific Orthodox Beth Din would be no less enforceable than an agreement to appear before a Conservative Beth Din. Moreover, subsequent to Avitzur there is no need to stipulate a penalty for non-appearance before the Beth Din or for failure to abide by its decision since the court is prepared to command specific performance upon pain of contempt proceedings. Since appearance before a Beth Din is a basic requirement of Jewish law there is no question that the threat of criminal contempt may be used to enforce the appearance of the parties.

A word of caution is in order. Execution of an agreement similar in nature to that upheld by the Court of Appeals in Avitzur would do much to ameliorate the plight of the agunah but would by no means serve as a panacea. The first problem which must be recognized is a legal one centering upon the import of the decision itself.

As noted earlier, it might be assumed that an order of the Beth Din to execute a get pursuant to the judicially mandated appearance before that tribunal would also be enforced by the Avitzur court. Indeed, the minority dissented in part because it viewed such an order as unenforceable and declared, "[T]he evident objective of the present action ... is to obtain a religious divorce, a matter well beyond the authority of any civil court."16 The majority, it might be presumed, fully recognized that arbitration is pointless unless the decision of the arbitrators is enforceable in a court of competent jurisdiction. Hence, it might be surmised that the majority would have been willing to enforce a decision of the arbitrators for specific performance even though it might regard such a remedy to be unattainable in a judicial forum. However, it should be noted that in Board of Education v. Carcovia17 an arbitration agreement to seek an advisory opinion was held to be enforceable. Hence, it is possible, although unlikely, that a future court might find confirmation of an arbitration decision commanding the husband to grant a get to be unenforceable and to construe Avitzur as mandating only that the parties seek the advice of the Beth Din.

More significantly, utilization of the judicial process as a means of compelling a husband to execute a get may in many cases invalidate the get. Utilization of the police power of the secular state in compelling the husband to cooperate in the execution of a get is appropriate only if: (1) The Court does not directly order the execution of the get but simply confirms the order of a competent and qualified Beth Din by means of a directive in the form of "Aseh mah she-Yisra'el omrin lecha - Do that which the Jewish court orders you to do;18 and (2) there exist grounds in Jewish law which warrant a direct order by the Beth Din compelling the husband to grant a get.19

These problems notwithstanding, the Avitzur decision is of great significance in ameliorating the plight of the agunah. Its significance lies in the fact that it points to a method by means of which the parties may be compelled to appear before a Beth Din. It is to be anticipated that when the parties appear before the Beth Din, the Beth Din will be able to use its ample powers of moral persuasion in order to effect the desired result.20 Experience teaches that the primary problem is securing an appearance by the husband before the Beth Din. Upon appearance, the necessary agreement to the granting of a get can often be obtained. Furthermore, as discussed earlier, in those cases in which the Beth Din finds grounds in Jewish law for compelling the husband to execute a get there is reason to anticipate that such a decision would also be enforced by the courts.

The Court of Appeals has ruled that an agreement to arbitrate a marital dispute before a Beth Din constitutes a valid contract on the grounds that directing the parties to appear before an arbitration panel which is then free to reach any decision it finds to be just and equitable involves no judicial entanglement in religious matters. But is an explicit undertaking to execute a get or an undertaking to appear before a Beth Din for the specific purpose of executing a get, similarly enforceable?21 The opinion of the court in Avitzur does not provide a direct answer to that question. Such agreements have been enforced by lower courts in New York.22 Indeed, the Appellate Division pointedly stated that such agreements are enforceable, but only when made in a nonliturgical context. The Appellate Division declined to enforce a stipulation incorporated in the ketubah only because it was an integral part of a religious covenant.23

Nevertheless, a future court might examine the Avitzur decision, and conclude that the Court of Appeals was willing to recognize only that agreements to arbitrate involve no judicial entanglement in matters of religion but that the court would concede the cogency of the dissenting view as applied to an explicit agreement to execute a get. Such a view would even be consistent with enforcement of an order of the Beth Din to execute a get pursuant to proceedings undertaking on the basis of an arbitration agreement, confirmation of an order of arbitrators to perform a religious act might well be regarded as removed from adjudication of matter to a degree sufficient to prevent infringement upon the Establishment Clause of the First Amendment, but direct involvement by the court in substantive matters pertaining to the get might well be construed as forbidden "entanglement" in a matter of religious practice. Therefore, prudence would dictate that any agreement drafted for use in the future omit reference to the get itself but provide simply that, upon dissolution of the marriage by a civil court, the parties bind themselves to the jurisdiction of a Beth Din for adjudication of any remaining disputes with regard to execution of a get. The agreement should name a specific Beth Din or, at the minimum, establish a mechanisim for convening a Beth Din since a New York court has previously held that the courts may not convene a Beth Din on behalf of the parties.24 The drafting of such an agreement as a separate instrument, independent of the ketubah, would also obviate the objection expressed in the dissenting opinion in Avitzur to the effect that the ketubah is a religious document, not a civil contract.

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