Halachic Prenups: Why Rabbis Should Insist on Them

A terrific pic of Rav Gedalia Dov Scwartz from the NY Times

The issue of halachic prenuptual agreements has been a source of debate (a while back), and media coverage more recently, including a recent NY Times article which basically tells much of the story without painting Orthodoxy as barbaric (for once). If you want to know a great deal more about halachic prenups, you can listen to the shiur that I gave on it here. Source sheets and audio shiur)

Controversy in Israel
On a private rabbinic (Israeli) listserv to which I subscribe (but never post - too much Hebrew!), the rabbis got into a heated discussion about whether the group should advocate that rabbis "insist" that the couple sign a halachic prenuptial agreement as a condition of performing the wedding ceremony. Some rabbis were strongly in favor of such a clause (for obvious reasons), while others recoil at the notion of "forcing" anyone to do anything. In this country, the words כפייה דתית - "religious coercion" are met with derision, so the notion of trying to force someone to do anything religious - as good for him or her as it may be - is often rejected out of hand. Personally, I think that the documents, while good, are less critical here in Israel, where the beit din has real jurisdiction to "convince" a recalcitrant husband to give his wife a get. In America, where the rabbis have no legal recourse, the only tool they have is the halachic prenup.

My Rabbinic Experience: Make Sure that It's Just Business
As a rabbi, I insisted that the couples for whom I performed their marriage signed a prenup. I felt that the document represented a modern-day, halachic solution to a problem that no one ever wanted to face (or thought they would). But I insisted on the document for another reason, that derived from a more personal, emotional source.
Objectively, when a couple prepares for marriage, no one reasonably thinks that the marriage will dissolve, and that the husband might withhold a get from his wife. (If you do think that about your future spouse, don't marry him!) This being the case, asking for a prenup (and it's the female who'd usually be asking) is, in a very real way, an affront. After all, what kind of person do you think that he is? Do you really think that he's capable of acting like a monster? Why are you marrying him if you think so, and why are you asking for a prenup if you don't? And, all the claims that, "I just want to be sure," and "We'll never need it anyway, so why not just sign it?" ring hollow.
Asking for a halachic prenup is an affront - and probably even more of one than asking for a normal financial prenup. It's insulting to suggest that your future life partner should sign a document just in case he ends up acting in such a spiteful and disgusting manner that the entire community will disassociate itself from him and demonstrate publicly outside his office. It's that bad.
That's why I think that the rabbi should insist on it. Then, neither member in the loving couple suspects anything. They really aren't worried about it. It's just a formality that the rabbi demands that no one thinks they'll ever need (and hopefully won't). The rabbi removes the prenup from the personal, relegating it back to the technical, where it can be filed away and forgotten. (Unless it's needed, and the woman will thank God that the rabbi insisted upon them signing one.)

To sum up:
1. I believe that every rabbi should insist on the couple signing a halachic prenuptial agreement (most do, but I wish it wasn't most, but "all")
2. If you're getting married, make sure that the rabbi who performs the wedding insists on a halachic prenup. It won't be personal, just business. And then everyone can move on to the business at hand, of building a beautiful, loving and happy marriage.