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.

Helfand on Litigating Religion

Michael A. Helfand (Pepperdine University School of Law) has posted a very interesting article, Litigating Religion.  In an earlier liveblogging post, Professor DeGirolami discussed Professor Helfand’s talk drawn from the paper at the Religious Legal Theory Conference.  The abstract of the article follows.

This article considers how parties should resolve disputes that turn on religious doctrine and practice – that is, how people should litigate religion. Under current constitutional doctrine, litigating religion is generally the task of two types of religious institutions: first, religious arbitration tribunals, whose decisions are protected by arbitration doctrine, and religious courts, whose decision are protected by the religion clauses. Such institutions have been thrust into playing this role largely because the religion clauses are currently understood to prohibit courts from resolving religious questions – that is, the “religious question” doctrine is currently understood to prohibit courts from litigating religion. Continue reading

%d bloggers like this: