Jewish Divorce and the Prenup Solution

(1) A woman is acquired in three ways, and she acquires herself in two ways. She is acquired through money, through a document, or through sexual intercourse. Through money: Beit Shammai say, "With a dinar [a specific unit of money] or with the equivalent value of a dinar." And Beit Hillel say, "With a perutah or with the equivalent value of a perutah." How much is a perutah? One eighth of an Italian issar [a specific unit of money equal to one twenty-fourth of a dinar]. And she acquires herself through a bill of divorce or through the death of the husband. A yevamah [a widow whose brother-in-law performed levirate marriage with her] is acquired through sexual intercourse, and acquires herself through chalitzah [the ceremony performed by the widow of a childless man as an alternative way to release herself from the obligation to wait for levirate marriage] or through the death of the yavam [one upon whom has fallen the obligation to perform levirate marriage].

(1) [1] A woman may be divorced only by means of a writ that reaches her, and this writ is called a get. According to the Torah, there are ten rules that are basic to divorce, and they are as follows: that the man may not divorce his wife except of his own free will; that he must give a divorce by means of a writ, and not by means of anything else... that it must be written specifically for her... that he must deliver it to her; that he must deliver it to her in the presence of witnesses; that he must give it to her as an instrument of divorce; that it must be the husband, or his agent, who gives it to her...

(10) Rabbenu Gershom [ben Yehuda] decreed excommunication on one who marries [another woman] in addition to his wife, though he did not decree excommunication in [the case of] a yebama [a widowed sister-in-law to whom one is obligated in levirate marriage], as well as in [the case of] an erusa [a betrothed woman]. Rem"a: If he only wishes to marry in order to divorce (Maharik [Moreinu HaRav Yosef Colon, Trabotto] chapter 101). And this is the rule wherever there is a mitzvah that supersedes, for example, when one cohabits with his wife for ten years and she has not borne a child ([The] Mordechai [ben Hillel] [on Talmud Bavli Yevamot] chapter HaCholetz [ie: 4th chapter], Rashba [Rav Shlomo Ben Avraham Aderet chapter 280 and Maharam Padua [Meir ben Yitzchak Katzenellenbogen] chapter 19). It is true that there are those who disagree and think that Rabenu Gershom's [decree of] excommunication applies even where there is a mitzvah [to marry] and even with regard to yibum [levirate marriage], and one would need to perform chalitzah [the releasing of those obligated in levirate marriage] (Mordechai's commentary on Yevamot, and Mordechai's commentary on Ketuvot, and so wrote Nimukei Yosef [Yosef ibn Habib] [in] chapter HaCholetz). And where the first [wife] is not divorced, for example, that she has become demented or that he may lawfully divorce her but she does not wish to accept a get [bill of divorce] from him, there is [room] to be lenient, to allow him to marry another (so is indicated in the responsum of the Rasbha]. And even more so if she is betrothed but does not want to marry him or to divorce him. And his decree has not spread to all countries. Rem"a: And [this refers] specifically to a place where it is known his decree has not spread, but [otherwise], by default, [the decree] is applicable in all places (Responsum of RI Minz chapter 10). And see Yoreh De'ah chapter 228 [with regard to] if one goes from a place where they are customarily stringent to a place where they are customarily lenient. And he only decreed excommunication up until the end of the fifth millennium. Rem"a: And in any case, in all those countries the decree and the custom stands, and one does not marry two wives, and we force, with excommunications and expulsions, one who has transgressed and married two wives to divorce one of them. And some say that in our day we should not force one who has transgressed Rabbenu Gershom's decree of excommunication [to divorce] (Beit Yosef in chapter 76), because the fifth millennium has already come to an end (ibid., in the name of Maharik chapter 110). And our custom is not so. One whose wife apostatized, he should provide her with a get through another's hand, and marry another [wife], and this is the custom is several places (Piskei Mahari [Israel Isserlin] chapter 256), and in a place where there is no custom [regarding an apostatizing wife], there is no [need] to be stringent, and it is permitted to marry another without divorcing the first (ibid., customs of Rinus [Rhine, vs. Austria]).

(4) The father has authority over his daughter with regard to betrothal, [whether it be effected] with money, with a contract, or with intercourse. He is [also] entitled to what she finds, to her earnings, and to the annulment of her vows. He [also] accepts her divorce document [on her behalf]. [However,] he does not enjoy the usufruct [of her inherited property] during her lifetime. If she gets married, the husband has the advantage over [the father], inasmuch as he does enjoy the usufruct [of her inherited property] during her lifetime. But he is obligated to [provide] her food, her ransom [in case of her being in captivity], and her burial. Rabbi Yehudah says, "Even the poorest man in Israel should not have fewer than two mourning flutes, and one lamenting woman [at the funeral of his wife]."