If I can borrow a few moments of the Rav’s time to ask a Shaila:
I’ve recently been learning the halachos, pilpulim, and (unfortunately) controversy regarding the idea of prenuptial agreements as a solution to the Agunah situation nowadays.
I’ve discussed the subject at length with my chavrusah for a while now. Of course we are just lomdei Torah and don’t have any say at all regarding final psak, however as bochurim we try to delve into the amkus of the subjects that we learn.
I have brought many proofs to my chavrusah that the prenuptial agreement should work על פי הלכה, including proving how it’s not a problem of גט מעושה. However, being intent on proving that prenups should not be allowed, he brings many proofs as well that it should not work.
The most recent proof I brought as support for prenups is the famous Rambam הלכות גירושין פ״ב ה״כ, that I’m sure the Rav is familiar with, which states that even if goyim are used to force him, it’s a good גט, as long as על פי דין the husband should be giving a גט and as long as they force him specifically על פי הוראת בית דין. The Ran in Gittin :דף פח says that this is because ״והגוים אינם אלא כמקל של ב״ד וכרצועה שלהם״. I wanted to say that the $150 fine imposed on the husband by the goyish courts (as agreed upon in the prenup) is the court being a רצועה in ב״ד’s hands with הוראת ב״ד. In other words: monetary enforcement through goyim shouldn’t be any different from physical enforcement which is allowed with beis dins’ permission.
My chavrusah argued and said that “at the end of the day”, when the husband comes to the goyish court and they are coercing him to give the גט through the daily fine, he is being forced by goyim that are not acting on beis dins הוראה , but rather on their own system of laws that states that contractual agreements are binding. Being that the husband signed the prenup, he has obligated himself in this (monetary fine) agreement. If so, the goyish court is forcing him through money coercion to give a גט, based on their own set of contractual laws, making it not על פי הוראת ב״ד , making it a גט מעושה according to the above quoted Rambam (?!).
I am not ח״ו asking on the Rabbanim that support prenups, I just want to understand Halachicly how it works.
Thank you for your time.
The prenup used today is not structures as a fine at all. Rather it is a way of formally enforcing his responsibility to provide mezonos to his wife [an obligation which remains until they are divorced]. This is done under the jurisdiction and ruling of the bais din. So in fact the court when necessary is enforcing his halachic obligation, and is not technically connected to the get in anyway, although ultimately it aids in the timely giving of a get as well. You may have already seen this document but if not see here: http://theprenup.org/pdf/Rabbi%20Asher%20Weiss%20Prenup%20Letter.pdf for the teshuva of Rav Asher Weiss who explains the mechanism of the prenup and it’s halachic parameters.