While prenuptial agreements are generally outside the scope of the author’s knowledge as well as outside the scope of these reports, this report does not appear to require either divorce law knowledge or a change in focus. Churches have, however, wandered into this area. Churches may increasingly need agreements to govern the exit of the church from an employment contract with a pastor, a denomination, or a parachurch organization.
In Tilsen v Benson, Slip Op., 2019 WL 6329065 (Supp. Ct. Conn., 2019), the trial court was asked to enforce the alleged Torah law mandate of an even division of marital property based upon a prenuptial agreement known as a “ketubah.” The ketubah apparently had some indicia of a civil contract enforceable in any court between husband and wife. It was signed by both parties and may have been supported by legally cognizable consideration other than personal promises of fidelity. The ketubah contained a dispute resolution clause that required submission of disputes to the “Biet Din,” a Rabbinic Court. A dispute resolution clause requiring arbitration or mediation could be similar. The trial court refused to consider the ketubah because to do so required ecclesiastical entanglement. Indeed, rabbinical experts were being lined up to testify and many of the terms of the agreement were not secular but were religious. To the extent the parties wished to enforce in court a secular provision in the ketubah, which appeared to the court to be a written contract, that might have been possible. But, the provisions based on Torah law were not enforceable in court. Of course, the court rendered no opinion about whether the religious provisions could be enforced in some manner not involving a secular court.
Regardless of denomination, churches struggle with civil ceremonies conducted under secular civil law. The logical solution may someday be considered. The civil ceremony and the church ceremony do not have to be in the least related, except where the parties want it. A parallel solution would be to have ketubahs and similar documents translated into English, rewritten into secular terms by a lawyer, the secular version approved by the appropriate religious authorities and the original religious version kept as well. Both could be signed in parallel. They could incorporate each other by reference. It may be that this has been done but because the case reported involved a thirty year old ketubah it may be that changing practices left it behind.