Featuring:
Rabbi Michael Chernick

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

 

By Rabbi Michael Chernick
Professor Emeritus of Rabbinic Literature
HUC-JIR/New York

Rabbi Michael Chernick

Background

In its discussion of divorce in Deuteronomy 24:1-2 the Torah frames the entire procedure in the masculine form. The Sages of the Mishnaic and Talmudic period understood this to mean that the right of divorce was the husband’s and not the wife’s. Further, in the formative period of Jewish law, a husband divorced his wife at his discretion, but she could be divorced against her will (Mishnah Yebamot 14:1). In the eleventh century a takkanah ascribed to Rabbenu Gershom of Mainz prevented women from being divorced against their will. Nevertheless, the husband’s agreement to divorce was still a sine qua non for the get to be legal.

Nevertheless, the problem of what I will call get-agunah, a woman being “chained” to a dead marriage for lack of a halakhic divorce, was not a practical problem. The Sages of the Talmudic period recognizing the inequities inherent in Jewish divorce law developed two strategies for coping with divorces on a whim and recalcitrance. Divorces on a whim were impeded by the creation of the ketubah which put a high price on divorce for the husband. When it came to recalcitrance, the Sages handled it by allowing the courts to coerce the husband, physically if necessary, until he said, “I wish to divorce my wife.” Despite the fact that this was not a freely willed decision, which was a required for a legal divorce, for the Sages the mere statement of “I want to divorce my wife” was enough.

The need for the husband’s willingness to divorce is not the only complication for Jewish women. Though polygamy was outlawed among Ashkenazi Jews in the 10th century and subsequently by most Sephardic and Oriental Jewish communities, the basic law of Judaism, the Torah, allowed it. It did not, however, allow polyandry. The children of a man who sired children with a wife he married while halakhically married to another woman were perfectly “kosher” because his marriages to both women were legal. Children born to a woman without a get were the products of an adulterous relationship, which made them illegitimate mamzerim, prohibited by Torah law from marrying most other Jews.

None of this would be a problem if rabbinic courts in most modern nations had the power of coercion. But they don’t. Western nations, which separate Church and State, reserve that power to themselves. Due to the powerlessness of rabbinic courts to coerce, the authority over Jewish divorce has reverted totally to the husband. If his wife is Orthodox, she will remain unmarried for halakhic and a complex host of other reasons if her husband refuses to give her a get. Even some non-Orthodox women remain “chained” because of concerns about their children’s future marriageability. It is this situation that the halakhic prenuptial agreement seeks to redress.

 

Halakhic prenuptial agreements: How They Work

The best known halakhic prenuptial agreement is the one the Rabbinical Council of America (henceforth, RCA) developed in consultation with halakhic authorities and lawyers familiar with civil law and arbitration. It has become the basic prototype for halakhic prenuptial agreements adopted in Israel and Europe. The RCA halakhic prenuptial agreement has the backing of significant Orthodox halakhic authorities, among them Rabbis Zechariah Nechemiah Goldberg, Yitzchak Liebes, Gedaliah Schwartz, Osher Weiss, Ovadiah Yosef, and Shalom Messas.

The basic mechanics of the RCA prenuptial are as follows:

  1. The groom-to-be agrees to support his wife, an obligation he has under the ketubah, at a higher, exorbitant rate, if he and his wife are not domiciled together. The amount, usually set at $150 per day, accrues as long as he does not appear before the RCA’s beth din of choice, the Beth Din of America (henceforth, BDA). At the point where the wife requests a get and the husband refuses to appear before the BDA, she can obtain the accrued amount in civil court with the BDA’s support. Given the choice between giving the get or paying a huge sum under court order, most men prefer to give the get. It should be noted that if the woman refuses the get she is no longer granted the support otherwise guaranteed her in the prenuptial contract. This leaves her with little leverage and considerable incentive to accept the get.
  2. The couple agrees in their halakhic prenuptial contract that arbitration of all matters of financial dispute and to the get are delegated to the BDA, which will act as the couple’s sole court of arbitration if marital discord ensues. Since the contract is a civil contract that conforms to all the rules of secular civil law, a secular court can force the parties to arbitrate whatever issues exist between them at the BDA, and before it alone.

Between these two mechanisms, the RCA halakhic prenuptial agreement has been, at least according to the RCA, 100% successful in achieving the goal of timely delivery and acceptance of the get, which is issued by the BDA or by its proxies.

 

Objections to the Halakhic Prenuptial Agreement from the Orthodox Right

Objections to halakhic prenuptial agreements to prevent get-agunot have come from the Orthodox “right.” The argument of the right has been that the halakhic prenuptial agreement gives too much power to the secular courts to enforce the financial provision of the prenuptial contract. From the point of view of the objectors, it is the secular court that ultimately coerces the husband into giving the get. According to Jewish law, a get which results from pressure by non-Jews, and sometimes even by Jews, is unacceptable. It is a get m’useh, a “forced get.

In actuality, the halakhic prenuptial agreement that the RCA created avoids this problem. According to its provisions the secular court only acts on the halakhic prenuptial agreement’s provision that makes the BDA the couple’s sole court of arbitration. True, a court of arbitration’s decisions are enforceable in the civil courts, but the RCA halakhic prenuptial agreement grants no authority to the civil court in relation to the get. If the wife seeks her financial redress, the BDA may provide proof that she deserves her settlement, but she is the plaintiff. The BDA is not.

Moshe Sternbuch, Chief Dayyan of the rabbinical court of the haredi Edah Haredit in Jerusalem, has objected to the prenuptial contracts on other grounds, namely, asmakhta. This halakhic principle holds that a person who undertakes an obligation believing that he or she will never have to fulfill it produces an invalid contract. In R. Sternbuch’s view, a couple beginning their married life together does not really believe they will ever get divorced. Hence, any prenuptial contract that discusses their potential divorce is invalid.

The response to R. Sternbuch has been that a couple that signs a contract, validates it by the most serious means available in Jewish law, namely a kinyan (loosely, “acquisition,” more accurately in this case “affirmation”), and notarizes it before a notary public clearly indicates their readiness to act on a halakhic divorce should one be necessary.

 

Objections to the Halakhic Prenuptial Agreement from the Orthodox and Feminist “Left”

Despite the Modern Orthodox community’s overwhelmingly positive reception of the halakhic prenuptial agreement, objections to it have come from women in the Modern Orthodox community and from Jewish feminists who are not necessarily aligned with any Jewish religious movement. Indeed, these Modern Orthodox women and Jewish feminists in the United States and in Israel strongly warn women not to sign any halakhic prenuptial agreements.

Their objections are based on several contentions.

First, rabbinic courts appointed as the court of arbitration usually require the woman who receives her get to waive all claims to any money that accrued during the period she and her husband were not cohabiting. According to the objectors this is tantamount to forcing the woman to pay for her get, a tactic recalcitrant husbands have often used to extort huge sums from their ex-wives in exchange for their halakhic divorce.

Second, the opponents of halakhic prenuptial agreements have argued that they are not foolproof. A wealthy man would find the usual $150 daily support provision a pittance and could hold up his wife’s get for an extraordinary period of time before feeling a financial pinch serious enough for him to grant the get. Indeed, in order to speed up the process, a rich recalcitrant husband might demand extortionate payment from his wife, which would likely far exceed the debt accrued under the halakhic prenuptial agreement. This would revive the very problem the halakhic prenuptial agreement was supposed to solve.

There is also the possibility of the husband fleeing beyond the reach of the BDA or its agents or his becoming mentally incapacitated and thus deprived of the free will required for him to give the get. In either case the halakhic prenuptial agreement would be useless.

Finally, Jewish feminists argue that the halakhic prenuptial agreement does nothing to remedy the basic inequality that lies at the heart of Jewish divorce. The husband’s agreement to grant the divorce remains necessary, and the wife remains a supplicant before a court whose judges are all men. They claim that the halakhic prenuptial agreement does nothing to empower either the men or women who sign it. All it does is grant higher degree of rabbinic control over both of them.

The argument raised against these objections to the halakhic prenuptial agreement is practical: Few solutions to extremely knotty problems, especially where marital discord is involved, are perfect or foolproof. Nevertheless, if there has been a 100% success rate in the timely delivery of the get in cases where a couple signs a halakhic prenuptial, why throw the baby out with the bathwater because of ideological and farfetched caveats?

Nevertheless, in my opinion the Orthodox community that favors halakhic prenuptial agreements should take these critiques seriously. Indeed, some halakhic scholars and civil lawyers in the Modern Orthodox community are working to close the gaps in the present halakhic prenuptial agreements’ conditions. The objective is to achieve delivery or receipt of a get where possible, but to end the marriage without a get if not.

 

Ending Halakhic Marriages Without a Get

The halakhic tradition provides means to terminate a marriage without the need for a get. All have been used in the past; some have been used even in our time. Among these are kiddushei ta`ut (marriage contracted under erroneous assumptions); kiddushin `al tenai (conditional marriage in which case the marriage holds only if certain conditions are met or remain in force); and hafka`at kiddushin (halakhic annulment of marriage, usually automatic under certain conditions). These methods of ending a Jewish marriage in tandem with the existent halakhic prenuptial agreements could bring the couple to a bet din for a get, or if there is recalcitrance, end the marriage without one.

Up until now halakhic authorities of standing have attacked these methods of ending a halakhic marriage. The reasons for their objections have often been based on the value system they espouse rather than indisputable halakhic evidence. Mostly they express concern for the devaluation of the institution of Jewish marriage and its concomitant negative affect on the Jewish family. Yet, it might be argued that a marriage in tatters producing friction and even abuse does very little to improve the standing of kiddushin or provide for a healthy family atmosphere.

Halakhic prenuptial agreements that provide for the termination of a marriage without a get are already being proposed and, of course, being opposed. It will take halakhic experts of tremendous authority and courage to make these kinds of halakhic prenuptial agreements acceptable to majority of the Orthodox community. Initially, people who avail themselves of them will likely have to be willing to risk the marriageability of their children throughout the various sectors of the Orthodox community and their own standing in them for the sake of a moral principle. Such people are not easily found. Therefore, the complete removal of the ethical stain of get-recalcitrance from Orthodox Jewish circles is presently more aspirational than imminent.

 

The Halakhic Prenuptial Agreement and the Israeli Reality

In theory, the halakhic prenuptial agreement should not be necessary in Israel. Since the Chief Rabbinate controls marriage and divorce and has the power of coercion in the case of the latter, all recalcitrant parties, male or female, should be efficiently giving or receiving their get.The theory, however, does not match the reality. Often one of the parties presents a rationale for their recalcitrant behavior that does not provide halakhic grounds for coercion. Frequently, coercion that takes the form of garnishing a recalcitrant spouse’s salary, taking away his or her driving license or passport, or even jailing the party fails to achieve the desired results. At that point, the rabbinic court claims it is powerless to do any more, and the injured party must live with his or her injury.

Further, it should be noted that the Chief Rabbinate itself is often loath to use coercion and will often find excuses not to. For example, some rabbinic courts repeatedly suggest “Shelom Bayyit,” a basically wonderful Jewish value that suggests settling differences and working toward a harmonious and durable marriage. It is however cruel to send couples back to try this over and over again when their differences are demonstrably irreconcilable.

Sadly, also, some Israeli rabbinic courts’ judges are not particularly concerned about the personal lives of those who appear before them for divorces. Nor are some of them especially sympathetic to the suffering of people who live under the domination or greed of a controlling or rapacious spouse. This lack of empathy may be even more pronounced when one or both members of the couple are non-observant. The number of such dayyanim in the rabbinic divorce courts is the reason that the movie “Gett” resonated so deeply with Jews in Israel and abroad.

For these reasons while the halakhic prenuptial has a place in Israel, it is to some degree less useful there than in the States and other Western countries. Often the Chief Rabbinate’s court system asserts that the involvement of the secular Israeli courts in the halakhic divorce proceedings is overreach, and the results are a political tug of war in which the party being denied the get is the victim.

 

Some Solutions to the Present Israeli Get Recalcitrance Problem

Along with prenuptial agreements there are reforms that are desperately needed in order to prevent women and men from being trapped in dead marriages:

    1. government required reform of the Chief Rabbinate’s divorce court system and establishment of requirements that guarantee that the dayyanim who are part of it are trained not only in halakhic divorce law but in human relations;
    2. decentralization of Rabbinate control over religious divorce that would allow couples to end their halakhic marriages before batei din they consider empathetic and efficient. These batei din should possess the same powers of coercion that the Chief Rabbinate’s divorce courts presently have;
    3. creating a system of civil marriage for those who want it, outside the purview of halakhah, which would obviate the need for a get.

While these suggestions may sound like “pie in the sky,” at least the third is being pursued by several organizations here and abroad and is, frankly, the most feasible. The organizations I am referring to are the RRFEI (us!) in the States linked to Hiddush in Israel; the Jewish Religious Equality Coalition (J-REC) under the aegis of the AJC, whose purpose is advocacy for civil marriage in Israel and strategizing toward that goal; the Israel Religious Expression Platform (IREP), which funds formal and grass roots organizations working toward religious pluralism in Israel; and most recently, the Israeli Modern Orthodox and nationalist Ne’emanei Torah V’avodah organization, which produced an entertaining video for the Orthodox and non-Orthodox Israeli public on the detrimental effects on Israelis’ relation to Judaism engendered by the Chief Rabbinate’s control over marriage (and, I would add, divorce).

I believe strongly that we would do well to try to bring these forces and their material, intellectual, and strategizing resources together in order to realize the one goal that by these organizations’ consensus is deemed to be within reach.

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