My concerns with pre-nuptials and civil marriage in Israel as solutions

Rabbi Michael Chernick

Responses by:
Rabbi Elliot Dorff
Rabba Sara Hurwitz
Rabbi Daniel Siegel
Rabbi Mark Washofsky
Rabbi Deborah Waxman


By Rabbi Daniel Siegel
Founding Director, Integral Halachah Institute
ALEPH: Alliance for Jewish Renewal (Canada)

Rabbi Daniel Siegel

As a new member of RRFEI, I am honoured by the opportunity to contribute to this learned discussion.

At first, I endorsed and used pre-nuptial agreements, seeing in them exactly what Rabbi Chernick sees. Over time, however, I became unsatisfied with this and the other options he lists. My concerns with seeing both pre-nuptials and civil marriage in Israel as solutions to the problem of divorce inequality and the agunah include:

  • The objection from the Orthodox “right” that pre-nuptials turn to civil courts, is one which I share. When pre-nuptial options were first proposed, it seemed that we were admitting that we couldn’t solve this problem on our own and needed to invoke the support of secular courts.
  • I also agree with the asmakhta argument as well. When I encouraged people to sign a pre-nuptial, I often got pushback and outright refusal. In the end, there is no substitute for being able to work things out in the present, just as Rabbenu Gershon did when he changed the function of the ketubah as it had been used, something that poskim as early as Rabbenu Asher observed and which has been reaffirmed in our own time.
  • I once participated in the invocation of an annulment, really a Kiddushim Al T’nai. It felt uncomfortable to annul a marriage ex post facto and, while it is not a bad idea in theory, it seemed to invalidate the years of marriage and the status of the children as a woman seeking a get once wrote me.
  • Most fundamentally, Rabbi Chernick does not really deal with the objections from the “left” but rather suggests patience while others try to plug the remaining gaps. However, all three proposed solutions continue to rest on the same two assumptions. In reverse order, setting up a civil alternative to rabbinic marriage in Israel is still a tacit admission that, in the end, this problem cannot be fully resolved from within the halachic process. Second, where kiddushin and gittin are still relevant, the assumption that the woman must remain passive goes unquestioned. Thus, women are still dependent on courts with male dayanim and on the power and willingness of these men to use their authority for their benefit.

Since “Pie in the Sky” options have already been proposed, I suggest the following:

  • We open ourselves to a halachic conversation which lets go of denominational claims to greater authenticity and accepts different approaches to the halachic process as equally valid and worthy of respect. This includes separating a commitment to the halachic process from the quantity and intensity of observance of particular mitzvot.
  • We expand the parameters of our halachic conversation to include the renewal of the Jewish commitment to bring about a redeemed world. One way to do this is to require halachists to respond to new conditions which change our sense of how to implement what we know is ethical. Nowhere is this more urgent than the need to equalize the relative power of both husband and wife, as the Rosh believed had been the intent of Rabbeinu Gershom.
  • Whenever possible, the preference is for both the husband and the wife to give each other a get, thus maintaining the male half of the equation.
  • The real way to solve the agunah problem is to have the same courage that earlier rabbis demonstrated when needing to make fundamental changes in direction. Long ago, before there was such a vast library of accumulated precedent, the Rambam invoked both et la’asot lashem and “better to eat the sauce than the fat” in one t’shuvah. More recently, the observation that “times have changed” allowed the Chatam Sofer to permit a Jewish doctor to be driven on Shabbat to see even a non-Jewish patient and for R. Yechiel Weinberg to celebrate the Bais Yakov schools and permit bat mitzvah celebrations.
  • Thus, in extreme cases where the husband absolutely refuses to participate in the get process, a woman should have the right to write her own get and a rabbinic court should be willing to receive it on behalf of the husband if he refuses to accept it himself.
  • In keeping with the prevailing halachic thinking that it is better to be maykil for the majority, I think that this should become the mainstream option. For those who wish to be machmir, they can continue to use the currently available options if they so choose, just as those who choose to be glatt kosher do not invalidate “ordinary” kashrut.
Print Friendly, PDF & Email