May A Civil Court Enforce a Ketubah as a “Prenuptial Agreement?”

This Week’s Blog by Andrew M. Eliot.

May a Civil Court Enforce a Ketubah as a “Prenuptial Agreement?”

  • What is a Ketubah?

In the Jewish tradition, many couples (including both observant and non-observant couples) sign a Jewish marriage contract, known as a Ketubah, in conjunction with entering into a civil marriage.   While the wording of Ketubahs is not uniform, generally speaking they outline certain rights and responsibilities of the parties vis-à-vis their spouse. In many (if not most) instances, a Ketubah is viewed by the signatories as merely a symbolic religious document that holds no legal weight, and is often written in a language that the parties may not even understand. But what if one party seeks to have a Ketubah, or certain provisions of the document, enforced as a contract in a divorce?

  • May the Provisions of a Ketubah be Enforced in a Civil Divorce?

The short answer to this complicated question is — it depends. Specifically, it depends upon the nature of the terms or provisions in a Ketubah for which enforcement is sought, and what (if anything) the Ketubah actually says with respect to such terms or provisions. Most notably, it depends on whether a Court’s enforcement of the Ketubah as a contract in the manner requested would violate First Amendment principles.

  • How is the First Amendment Relevant to this Issue?

The First Amendment to the United States Constitution provides, in pertinent part, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” U.S. Const., amend I. These clauses are commonly referred to as the Establishment and Free Exercise Clauses. Boiled down to its essence, the First Amendment bars the federal and state governments, including courts, from actions that, “foster an excessive entanglement with religion.” Lemon v. Kurtzman, 403 U.S. 602 (1971). However, this proscription against judicial entanglement with religion does not prohibit courts from adjudicating a dispute solely because it happens to involve a religious institution, party or document. Rather, the First Amendment permits courts to resolve disputes involving religious institutions, parties or documents if, but only if, the court can do so by applying “neutral principles of law.”

  • An Exploration of Relevant Cases

In adjudicating disputes over Ketubahs, the challenge for courts is to determine whether adjudication would, in fact, excessively entangle a court with religious matters in violation of the First Amendment or whether the dispute can be resolved by applying neutral principles of law. This distinction can be highlighted by analyzing two Connecticut cases, one of which was recently litigated by Broder & Orland LLC. In that case, the parties’ Ketubah stated that in the event of a divorce, the parties had agreed to divorce “according to Torah law as is the manner of Jewish people.” The Husband asserted that pursuant to “Torah Law” (1) premarital and inherited property was not subject to equitable distribution; and (2) the Wife could not seek an award of alimony against the Husband. In denying the Husband’s application to have the parties’ Ketubah enforced as a premarital agreement in this manner, the Court reasoned that the Husband was not merely asking the Court to apply “neutral principles of law,” but was instead asking the Court to both interpret and apply religious law and doctrine in direct contravention of First Amendment principles.

This case can be contrasted with the Court’s decision in Light v. Light, 55 Conn. L. Rptr. 145, 148-149, wherein the parties’ Ketubah expressly stated that the Husband would pay the wife $100 per day from the date they physically separated until the date when the Husband granted the Wife a Jewish divorce known as a “get.” The Court enforced that provision of the parties’ Ketubah as a contractual obligation because the relief sought was only to compel the Husband to perform a specified monetary obligation to which he had contractually bound himself and did not require the court to “evaluate the properties of religious teachings.”

Although rare, cases involving religious based agreements are extremely complex and, in order to be handled properly, require a great deal of expertise and attention. At Broder & Orland LLC, we have extensive experience handling matters involving these issues and are poised to help clients achieve favorable and fair results when these issues arise.