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

Rabbi J. David Bleich - Rosh Yeshiva, Rabbi Isaac Elchanan Theological Seminary; Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University

  1. Proceedings of the Rabbinical Assembly of America, XVIII (1954), 67.
  2. See this writer's "Parameters and Limits of Communal Unity from the ~Perspective of Jewish Law," Journal of Halacha and Contemporary Society, no.6 (Fall, 1983), p. 14; R. Norman Lamm," Recent Additions to the Ketubah," Tradition, vol. 11, no. I (Fall, 1959), p. 94; and R. Eliezer Waldenberg, Tzitz Eli'ezer, V (Jcrusalem, 5717), introduction, chap. 7.
  3. For a discussion of the nature of asmachta see Encyclopedia Talmudit, II, 108-115. (Eng. ed., 522-538).
  4. See Uniform Commercial Code § 2-718.
  5. See Piskei Din Shel Batei ha-Din ha-Rabbaniyim, II, 9-13; R. Isaac ha-Levi Herzog, Ha-Darom, no.1 (Shevat 5717), pp.3-28 [reprinted in Osef Ma'amarim ed. R. Charles B. Chavel and R. Nachum Rabinovitch (New York, 5726) pp 42- 67]; R. Eli'ezer Rabinowitz-Teumim, No'am, I (5718), 287-312, R Yitzchak Glicksman, No'am, III (5720), 167-194; and R. Elyakim Ellinson, Sinai, XXIX (Tammuz-Sivan 5731), 141-150.
  6. See conflicting authorities cited by Ramo, Shulchan Aruch, Even Ha-Ezer 154:5 and accompanying commentaries.
  7. N.Y.L.J., Feb. 17, 1983, p. 4, col. 1.
  8. Avitzur v. Avitzur, No. 211-81 (Albany Co., Dec. 19, 1980).
  9. Avitzur v. Avitzur, No. 41550 (3d Dep't April 8, 1982).
  10. N.Y.L.J., Feb. 17, 1983, p.4, col. 2.
  11. Loc. cit.
  12. 36 D.L.R.3d 447, 3 W.W.R. 526, 10 R.F.L. 118 (Manitoba Q.B. 1973), rev'd 42 D.L.R. 3d 550, 558 (Man. Ct. App. 1973) (Friedman, C.J., dissenting).
  13. N.Y.L.J., August 8, 1979, at p. 13, col. 5, F.L.R. 2810.
  14. 880 N.J. Super. 260, 434 A.2d 665 (1981).
  15. Various other proposals for antenuptial agreements emanating from Orthodox sources have been circulated in recent months. Proposals incorporating a simple penalty clause are substantially no different from the provision of the Conservative ketubah insofar as the defects of asmachta and get me'useh are concerned. Those proposals will be examined in detail in a forthcoming study.
  16. N.Y.L.J., Feb.17, 1983, p.5, col. 1.
  17. 36 A.D.2d 851 (2d Dept 1971).
  18. See Shulchan Aruch, Even ha-Ezer 134:9.
  19. For a discussion of such grounds see Shulchan Aruch, Even ha-Ezer 154.
  20. A more radical proposal for an agreement which would serve as the basis for actual enforcement rather than for mere moral persuasion has been advanced by this writer in "Modern-Day Agunot: A Proposed Remedy," The Jewish Law Annual, IV (1981), 167-187.
  21. The question of enforceability in a civil court is germane only in situations in which there exist grounds in Jewish law for compelling the husband to grant a get. According to the vast majority of rabbinic authorities, such an agreement constitutes a kinyan devarim and is not binding as a voluntary undertaking. See Teshuvot Kol Aryeh, Even ha-Ezer, no.85 and Teshuvot Imrei Yosher, 1. no.6; cf., Bet Shmu'el, Even ha-Ezer 134:7. In two reported cases rabbinical courts in Israel have ruled that such an agreement on the part of the husband cannot be enforced. See Piskei Din shel Batei Ha-Din ha-Rabbaniyim, VIII, 358-361 (Rabbinical District Court of Tel Aviv-Jaffa 1969; and Piskei Din shel Batei Ha- Din ha-Rabbaniyim, VIII, 179 (Rabbinical District Court of Tel Aviv-Jaffa 1980). Regarding enforceability of such an undertaking on the part of the wife see Piskei Din shel Bate ha-Din ha-Rabbaniyim, IV, 354 (Supreme Rabbinical Court of Appeals, 1956).
  22. Waxstein v. Waxstein, 90 Misc. 2d 784, 395 N,Y.S.2d 877 (Sup. Ct. 1976), aff'd, 57 A.D.2d 863, 394 N. Y.S.2d 253 (2d Dep't 1977). See also Koeppel v. Koeppel, 138 N.Y.S.2d 366 (Supp. Ct. Queens Cty. 1954), aff'd, A.D.2d 853, 161 N.Y.S.2d 694 (2d Dep't 1951) and Margulies v. Margulies 42 A.D.2d 517, 344 N.Y.S.2d 482 (1st Dep't 1973).
  23. It should further be noted that Jewish divorce is in no way a matter of religion in the sense that that concept is understood in constitutional law. The procedure involves no profession of faith, requires no act of wotship and does not invoke the Deity. It may be performed even by an atheist. Divorce in Jewish law is simply a formal mode of cancelling an obligation incumbent upon the parties by virtue of their marriage. Thus the Talmud, Kiddushin 41b, describes the get as "secular" (chol) in nature. The non-religious nature of Jewish divorce has been explicitly recognized in a number of lower court decisions. For a fuller discussion of this question and its implications see this writer's, "Jewish Divorce: Judicial Misconceptions and Possible Means of Civil Enforcement," Connecticut Law Review vol. XVI, no. 2 (March, 1984).

    Similarly, the marriage contract itself is in no way a religious document. It merely recites the obligations assumed by the groom for the support and maintenance of the bride and the financial provisions made for the wife upon dissolution of the marriage by death or divorce. Jewish law requires the document both for the protection of the bride and as a means of preventing precipitous divorce. The instrument itself is no more religious in content-or romantic in tone-than an insurance policy.

  24. See Pal v. Pal, 45 A.D.2d at 739, 356 N.Y.S.2d at 673 and Waxstein v. Waxstein, supra, note 20.
  25. Acknowledgement before a notary public is necessary only when required by statute. An antenuptual agreement of this nature is not among the instruments requiring acknowledgement under New York statutes. See 1 N.Y. Jur.2d 202 204. However, in light of a 1980 amendment of the New York Domestic Relations Law requiring acknowledging of certain other antinuptial agreements it would be purdent to notarize an agreement of this nature as well. See New York Domestic Relations Law I 2,3,6, part B (3) (Consol.) In jurisdictions in which acknowledgement is required by statute, there is disagreement among the courts as to the effect, on its validity or enforceability, of noncompliance with these requirements. See 16 A.L.R.3d 372-378.
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