Why is it necessary to sign a prenup if one marries in accordance with halakha?


If one marries in accordance with halakha, problems might arise, for example: get refusal, aginut, mamzerut, andchalitza. These challenges are particularly acute in Israel where halakha has been incorporated into the laws of the State of Israel. [i]

[i](1) Get Refusal: Under halakha, a woman is not divorced until her husband delivers a Jewish bill of divorce-- a get-- to her.  If he refuses, she remains married. This is the case even when a rabbinic court issues an order "forcing" a husband to give a get, for example putting him in prison. Tsivia Gordochsky's husband has been in an Israeli jail for 16 years for refusing to divorce her.  But Tsivia is still married. She is considered a "mesurevet get," a woman who is refused a divorce.

(2) Aginut: Under halakha, a woman whose husband is missing or incapacitated is called an agunah, which means "anchored" in Hebrew. An agunah is anchored to her marriage because her husband is physically unable to deliver a get to her. Without an actual get delivered into her hands, a woman remains married. Recently, the story of the Agunah from Safed made headlines. Her husband is unconscious and hospitalized due to head injuries sustained in a motor cycle accident. After seven years and much outcry, a single rabbinic tribunal in Israel finally freed her. But many rabbis, including the Chief Rabbis, criticized the tribunal of this court.

(3) Mamzerot: Under halakha, a child is considered a mamzer if born out of a relationship that is "forbidden" under the Torah. This includes, for example, a child born as a result of a relationship between a woman and:  her late husband's brother (if the woman had had children from her husband); her sister's ex-husband; her nephew; and a man who is not her husband (even when her husband is incapacitated or a get refuser).

It is forbidden for a mamzer to marry another Jew if that Jew is not a mamzer, or a convert. It does not matter whether a woman willingly had forbidden relations, or whether those relations were forced on her. If a mamzer has children, those children and their descendants for all generations are similarly stigmatized. 

(4) Chalitza: If a man dies without children, the halakha does not permit his widow to remarry unless her husband's brother is released of his halakhic obligation to marry her-- chaliza. The release ceremony cannot be performed if the brother is a minor, incapacitated, or simply refuses to cooperate. Sometimes, a brother may demand payment in exchange for this cooperation.