Rav Mordechai Lebhar (Magein Avot EH 134) voices criticism of the BDA/RCA agreement based on the criticisms offered against the Moroccan prenuptial. Rav Lebhar documents the well-established Moroccan rabbinic court practice to avoid administering a get if there is any concern that the husband is giving the get due to a penalty. This practice emerged due to concern for the ruling of the Teshuvot HaRashba (4:40, cited in the Beit Yosef EH 134) that disqualifies a get conducted due to a financial penalty. Thus, he writes that the BDA/RCA agreement should be avoided due to concern for creating such a penalty.
However, the BDA/RCA agreement was specifically formulated to avoid this concern and satisfy the Rashba. In the RCA/BDA prenuptial agreement, the husband agrees to pay $150 per day to support his wife in case they do not maintain domestic residence. This obligation remains in effect for the duration of the halachic marriage. The document, following the guidance of the Jerusalem beit din’s Rav Zalman Nechemia Goldberg, carefully avoids linking the husband’s support obligation to his giving a get to avoid the payment’s being construed as a penalty for not giving a get.
Rav Osher Weiss notes that the RCA/BDA agreement differs from the situation that the Rashba addresses in two ways. First, the support obligation is not a penalty but a reasonable sum necessary to support the wife in an average manner. Moreover, there is no direct linkage between the support obligation and a get, as the husband’s financial obligations are a result of the marriage and are not a punishment for withholding a get. Linkage between the obligation and the get is the critical issue, as explained by Pit’chei Teshuva E.H. 134:11 citing Torat Gittin 134:4 s.v. Kenasot, Aruch HaShulchan E.H. 134:25, Teshuvot Igrot Moshe E.H. 1:137 and Rav Zalman Nechemia Goldberg’s explanation, as told to me, of the concluding paragraph of Teshuvot Igrot Moshe E.H. 4:106).
Indeed, the BDA/RCA agreement emulates the divorce agreement formulated by the famed Rav Yaakov of Lissa to provide financial motivation for giving a get without constituting coercion (Torat Gittin 134:4 s.v. Kenasot; cited in Pit’chei Teshuva E.H. 134:9). The husband waives his halachic right to his wife’s earnings (ma’asei yadayim) while maintaining his obligation to support her. The man is thus motivated to give a get in order to release himself from his financial obligation to his estranged wife. This does not constitute coercion because the husband’s financial obligations are a result of the marriage and are not a punishment for withholding a get. Therefore he gives a get due to dissatisfaction with his marriage, not because of financial penalty. Concerns of invalidating a get according to the Rashba arise only when a financial penalty is linked directly to the get.
By contrast, the Moroccan agreement, as presented by Rav Messas, constructs the husband’s obligation as a penalty to give the get. For example, in the conclusion of Teshuvot Shemesh U’Magein 2 EH 36, Ribi Shalom describes the Moroccan prenuptial as a penalty. The Moroccan prenuptial describes the husband paying spousal support until a get is given, thereby creating specific linkage between the obligation and the get.
Ribi Shalom concedes that the Moroccan prenuptial does not satisfy the Rashba but instead relies upon the majority of Rishonim who disagree. Ribi Shalom understands the Shulchan Aruch and Rama as ruling in accordance with these many Rishonim against the Rashba.
By contrast, Rav Zalman Nechemia Goldberg specifically designed the BDA/RCA prenuptial to satisfy the opinion of the Rashba. Rav Osher Weiss insists that Rav Goldberg was successful in his efforts to do so. No wonder Rav Ovadia Yosef supported the BDA/RCA agreement.
Thus, all Sephardic Jews should undoubtedly sign the BDA/RCA prenuptial as it carries the explicit imprimatur of Rav Ovadia Yosef. It certainly satisfies and even exceeds the criteria set forth by Rav Shalom Messas. Chacham Ovadia and Ribi Shalom vigorously disagreed about many areas of Halacha. Regarding the BDA/RCA, these two Sephardic giants are in full agreement in their support. The Sephardic community should not hesitate to follow in the footsteps of these two great giants.
By Rabbi Haim Jachter
Rabbi Haim Jachter is the spiritual leader of Congregation Shaarei Orah, the Sephardic Congregation of Teaneck. He also serves as a rebbe at Torah Academy of Bergen County and a dayan on the Beth Din of Elizabeth.
