Enforcing the “Jewish Prenup”

Thanks to Mark for the invitation back to the CLR Forum for a guest post.  Yesterday, a couple of law blogs (see here and here) picked up a story in the Jewish Daily Forward about an important Connecticut state court decision that enforced what is often referred to as the “Jewish Prenup” (“In Victory for ‘Chained’ Wives, Court Upholds Orthodox Prenuptial Agreement).  I’ve written a bit about the decision previously, but wanted to explain a little bit more about what is at stake.  [UPDATE: Here’s a copy of the decision Light v. Light reprinted from Westlaw with permission of Thomson Reuters.  If you wish to check the currency of this case by using KeyCite on Westlaw, then you may do so by visiting www.westlaw.com.”]

Under Jewish law, only a husband can initiate a Jewish divorce.  Moreover, if a husband is “coerced” into granting a divorce, then the divorce is considered invalid.  This combination of rules has caused some significant problems for Orthodox Jewish women seeking to end their marriage where their husband refuses to grant them a Jewish divorce document.  In order to address this growing problem, a number of Jewish organizations – most prominently, the Beth Din of America – created a prenuptial agreement, which is now signed by a growing number of Orthodox Jewish couples.  This agreement’s most salient feature is a provision where the husband agrees to provide his wife with financial support in the amount of $150 per day “so long as the two . . . remain married according to Jewish law.”  The purpose of this provision is to walk a fine line between placing financial pressure on the husband to ensure he grants the divorce without placing so much pressure so as to render any subsequent divorce granted by the husband “coerced” (for a recent article exploring various considerations on this and related points, see here starting on page 12).

It was this support provision that was enforced by the Connecticut Superior Court in its recent decision in the case of Light v. Light.  In so doing, the court considered the husband’s claim that enforcing the prenuptial agreement would violate the First Amendment by requiring the court to “consider[] religious doctrines and ceremonies.”  However, the court rejected this argument, holding that the prenuptial agreement could be interpreted and enforced in accordance with “neutral principles of law”:

In the present case, a determination as to whether the prenuptial agreement is enforceable would not require the court to delve into religious issues. Determining whether the defendant owes the plaintiff the specified sum of money does not require the court to evaluate the proprieties of religious teachings. Rather, the relief sought by the plaintiff is simply to compel the defendant to perform a secular obligation, i.e., spousal support payments, to which he contractually bound himself.

It is important to note here that the prenuptial agreement does not require the husband to grant his wife a Jewish divorce.  Indeed, courts have differed as to whether a contract in which a husband agrees to grant his wife a religious divorce is enforceable; the issue raised in such cases is whether or not civil enforcement of a contract that requires a husband to grant a religious divorce violates the religion clauses of the First Amendment (for contrasting views, see here and here).  By contrast, the prenuptial agreement simply requires the husband to make support payments, thereby avoiding these potential First Amendment problems.

This decision – which is in my view both correctly decided and well reasoned – is likely to have significant impact on any future cases involving this increasingly popular prenuptial agreement.  The “Jewish prenup” has done an impressive job of avoiding a variety of both constitutional objections and Jewish Law conundrums.  And as a result, this prenuptial agreement is likely to go quite far in protecting Orthodox Jewish women by providing them with the financial leverage necessary to ensure that they receive their religious divorces from otherwise reluctant husbands.

Around the Web This Week

Some interesting law & religion stories from around the web this week:

Hefner, Hutchinson, Mels & Timmerman (eds.), “Religions in Movement”

ReligionsinMovementThis month, Routledge published Religions in Movement: The Local and the Global in Contemporary Faith Traditions edited by Robert Hefner (Boston University), John Hutchinson (London School of Economics), Sara Mels (UCSIA, Belgium), and Christiane Timmerman (University of Antwerp). The publisher’s description follows.

There has long been a debate about implications of globalization for the survival of the world of sovereign nation-states, and the role of nationalism as both an agent of and a response to globalization. In contrast, until recently there has been much less debate about the fate of religion. ‘Globalization’ has been viewed as part of the rationalization process, which has already relegated religion to the dustbin of history, just as it threatens the nation, as the world moves toward a cosmopolitan ethics and politics. The chapters in this book, however, make the case for the salience and resilience of religion, often in conjunction with nationalism, in the contemporary world in several ways.

This book highlights the diverse ways in which religions first and foremost make use of the traditional power and communication channels available to them, like strategies of conversion, the preservation of traditional value systems, and the intertwining of religious and political power. Nevertheless, challenged by a more culturally and religiously diversified societies and by the growth of new religious sects, contemporary religions are also forced to let go of these well known strategies of preservation and formulate new ways of establishing their position in local contexts. This collection of essays by established and emerging scholars brings together theory-driven and empirically-based research and case-studies about the global and bottom-up strategies of religions and religious traditions in Europe and beyond to rethink their positions in their local communities and in the world.

Atanassow & Boyd (eds.), “Tocqueville and the Frontiers of Democracy”

TocquevilleThis April, Cambridge University Press will publish Tocqueville and the Frontiers of Democracy edited by Ewa Atanassow (Bard, Berlin) and Richard Boyd (Georgetown University). The publisher’s description follows.

Alexis de Tocqueville is widely cited as an authority on civil society, religion, and American political culture, yet his thoughts on democratization outside the West and the challenges of a globalizing age are less known and often misunderstood. This collection of essays by a distinguished group of international scholars explores Tocqueville’s vision of democracy in Asia and the Middle East; the relationship between globalization and democracy; colonialism, Islam, and Hinduism; and the ethics of international relations. Rather than simply documenting Tocqueville’s own thoughts, the volume applies the Frenchman’s insights to enduring dilemmas of democratization and cross-cultural exchanges in the twenty-first century. This is one of the few books to shift the focus of Tocqueville studies away from America and Western Europe, expanding the frontiers of democracy and highlighting the international dimensions of Tocqueville’s political thought.