The Financial Prenup & the Prenup to Avoid Get Recalcitrance -Differences
Prenuptial agreements which organize the financial management of the newly established family have become more and more acceptable amongst the general Israeli public in recent years. In this regard it is important to point out that a financial prenuptial agreement is essentially an ancient Jewish custom – as also the Ketubah is a contractual arrangement.
Taking into consideration these two points, during the last few decades, prenuptial agreements have been developed in order to enable the woman to be released from the bonds of matrimony in cases where the man does not agree to a divorce. Already in the middle of the previous millennium, rabbis in the Diaspora have encouraged marrying couples to sign a prenuptial agreement in order to later avoid get recalcitrance. In Israel, signing these types of agreements has become more acceptable in the last decade.
As Jewish Law states that the man is the one who decides if and when to give the get, the prenuptial agreement tries to even out the unequal division of power between the spouses. This is done by creating a financial incentive – according to which if the man refuses to give the get, he is obligated to pay increased spousal support to the woman until he gives the get. This type of agreement obligates the couple both in a contractual-legal manner and by Jewish law.
Many see prenuptial agreements as an acceptable solution to get recalcitrance but it is clear that a financial agreement does not resolve the issue of the personal status of the couple. Giving the get is still dependent on the good-will of the man. Nevertheless, cases in the United States have proven that this type of agreement provides a financial impetus at the beginning of the divorce process for the man to actually grant a divorce. He is convinced that it is better for him to divorce through quiet negotiations, as otherwise a financial burden may fall upon him.
Notwithstanding the reservations of a few circles in the religious establishment, there are agreements that have received rabbinic approval. The clear advantage of all of the agreements is that they can be certified by a notary, a marriage registrar, the rabbinical court or the civil court. If it is certified by either of the courts – it has the authority of a court ruling. Therefore if the couple separate and would want to activate it, they are assured that the courts will honor the agreement as any other.