A Halakhically Approved Marital Agreement to Mediate/ Rabbi Dr. David Mescheloff, Moshav Hemed 50295 Israel

Posted on July 19, 2010

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(Editor’s Note: Rabbi Dr. David Mescheloff is a noted scholar and rabbi living in Israel.  We thank Rav Mescheloff for bringing his rabbinic experience to the attention of this blog’s readers.  What is unique about his approach is the creation of a marital agreement whose sole aim is to bring a couple in crisis to mediation, rather than empowering one to press the other to divorce, and whose enforcement power is by reward rather than by threat of a financial sanction. Finally, this blog is not intended to decide matters of Jewish law. All questions that you may have on halachic matters should be brought to your halachic advisor.  MR)

Agreement is the key to Jewish divorce. Halakhah has required that both husband and wife agree before implementing a divorce, with few exceptions, for many centuries.  The aim of mediation is to help a woman and a man, together, reach the agreement that is required before they finalize their divorce. Thus mediation is the ideal method for preparing for Jewish divorce. Indeed, it is already mentioned in a sixteenth century responsum (Responsa Mabit 2:206).

Twenty-five years ago I composed a marital agreement based on this awareness.  The Marital Agreement to Mediate consists of two identical undertakings – one of the wife towards the husband, and one of the husband towards the wife. It provides that each will respond to the other’s invitation to enter mediation and to cooperate reasonably in the process. The agreement provides a significant financial reward as an inducement to each for cooperation: postponement of the due date of a large debt each formally undertook to the other. The postponement takes place in stages that lead the couple through marital counseling, if that is appropriate, and as the mediation proceeds. Ultimately the debts are canceled a year after a divorce agreement is reached.

Since the aim of the agreement is to provide the help a man and woman need for reaching agreement without hostile, costly, lengthy litigation – and not to press or force the will of one of them on the other – it is completely acceptable halakhically. Furthermore, it motivates cooperation by promising reward rather than by threatening financial sanctions. It was approved ab initio by HaRav Yoseph Shalom Elyashiv shlit”a, with the proviso that it be explained fully to each couple before the formal signing before witnesses.  It was approved by HaRav Shaul Yisraeli zt”l; he had some reservations about the Torah qualifications of mediators, but since then hundreds of rabbis and Torah-true Jews have learned to mediate. It was also approved by HaRav Shlomo Amar shlit”a.

Since the Marital Agreement to Mediate is genuinely nonaggressive and not based on fear of the evil a spouse might do if things don’t work out immediately after the wedding, it is not crucial that the agreement be signed before the wedding.  Indeed, I have always arranged it after the wedding, and, in one case, several years after a couple had married.

The agreement has been published in several halakhic journals in Israel. Hundreds of kits, including the Marital Agreement to Mediate and explanations to rabbis and to couples preparing to marry, have been distributed in Israel. An article presenting the agreement in English has been submitted to an American rabbinic journal.

It is hoped that widespread use of an agreement of this type will inject into the practice of Jewish divorce a spirit of cooperation, decency, and respect for the will of others, even when parting of the ways becomes the right choice.

Further information is available from the author at djm765@gmail.com.

Rabbi Dr. David Mescheloff has served as a community rabbi, Torah lecturer, teacher, and a university lecturer.  His time is now devoted to counseling and answering questions on Jewish law on such topics as marital preparation, mental health issues, child rearing and medical issues.

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