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Agreements

Between Married Couples

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I am a Cohen and married my wife in a civil marriage abroad a few years ago. I was forbidden from marrying her under Jewish law as she was a divorcee. As I have a successful business I wanted to make a property relations agreement . We did so after we got married and authorised it at the family court. We have been having problems lately, but I felt safe because of the agreement. However, a friend worried me by saying that it may not be valid because we are forbidden from marrying under Jewish law. Is he right ?

Agreements Between Married Couples

No – as a ruling from the highest court in Israel proves !

The Spouses’ Property Relations’ Act of 1973 states that a married couple must authorise any agreement relating to their property in court for it to have validity. The key point in your case is whether a family court has jurisdiction to authorise an agreement between two Jews who have no legal capacity to marry one another according to Jewish law and who must ‘divorce’ one another if they do actually do so.

This point was tested by the Supreme Court in the early eighties involving a Cohen who had ‘married’ a Jewish divorcee in a private ceremony without a rabbi . He had asked the district court to authorise a property relations agreement between himself and his ‘wife’, although the rabbinical court had held that they must divorce. When the district court – the first level court at that time , with jurisdiction to authorise the agreement –  refused, he appealed to the Supreme Court. It overruled the district court decision , and held by a majority 3:2 ruling, that it could authorise a property relations agreement between a Cohen and a divorcee .

Accordingly, it would appear that today the family court – which is now the first level civil court for these matters -has jurisdiction to authorise an agreement between a Cohen and a divorcee who married in a civil ceremony abroad.

Is it possible for a Jewish married couple to separate and agree on a civilized divorce option which would come into play if one or both of them decided to end the marriage after a ‘cooling off’ period ?

Agreements Between Married Couples
Yes. A married couple can have a separation agreement drafted which would include a divorce option. If they wish to avoid a ‘dirty divorce’ where one side uses the threat of refusing to divorce as a bargaining tool to get a better deal, they can include one or two paragraphs in the agreement whereby the husband undertakes not to bind certain issues if he does file for divorce – namely his wife’s maintenance and their property relations. They can go even further – they can agree that should one or both of them wish to divorce – the family court will have exclusive jurisdiction over child custody, and all maintenance and property issues.
This will avoid complications associated with the ‘jurisdictional race’ whereby the wife tries to file for these issues at the family court before the husband files for divorce at a rabbinical court. If he does file for divorce first then child custody is automatically bound to the plea, but he can also bind his wife’s maintenance and property issues. If the couple do make a written agreement giving the family court exclusive jurisdiction regarding child custody, maintenance and property , then what will remain between them should they finally decide to end their marriage will be a pure, civil dispute, without any emotional or financial blackmail regarding the ‘get’ (divorce) itself.

When we got married over 15 years ago we never even dreamt of making a “prenuptial agreement” because neither of us had any property or profession with money-making potential. The situation has changed and we are fairly well – established after both having developed careers. Can we still make a property relations agreement as an “insurance” policy incase our marriage fails later to avoid hassle?

Agreements Between Married Couples

Yes, married couples are entitled to make a property relations agreement which will govern the issue rather than the principles of equalization under the Spouses’ Property Relations Act of 1973 which applies to couples who married from 1.1.74 onwards. The act permits couples to exclude agreed property from the pool of marital property.

The agreement must be in writing and receive the authorization of the family court or the relevant religious court having jurisdiction. Physical presence at the court session is required so that the judge can identify the sides, be sure that both sides understood the contents of the agreement, its consequences and signed of their own free will, without being pressurized. Once the court has authorized the agreement and given it the validity of a judgment, it will have full legal value.

 

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