Rabbi Michael Chernick
Rabbi Chernick has done a masterful job in describing the prenuptial agreement now in use in some segments of the Orthodox community, together with its strengths and weaknesses. To the extent that it has saved women from becoming agunot through the very threat of the husband being forced to pay a huge sum of money per day for refusing to give his wife a get, it is to be praised. In the United States, however, with a strong separation of religion and state, I wonder whether the civil courts will honor a prenuptial agreement of the parties to use the Orthodox court to settle their monetary disputes once they realize that what is involved is not only a monetary dispute but confirming a divorce in a religious act. New York courts in the 1970s varied widely as to how they viewed such prenuptial agreements, ultimately resulting in the Avitzur case of the New York Court of Appeals in 1983 that upheld a Conservative ketubbah that required the couple to submit to the jurisdiction of the court of the Jewish Theological Seminary and the Rabbinical Assembly; but that decision was by a bare majority, and it has yet to be tested in the federal courts.
A much better way to prevent agunot, one that does not involve the civil courts at all, was created by the Conservative Movement’s Committee on Jewish Law and Standards in 1969. It is the “Ante-Nuptial Agreement” (which follows), in which the couple (primarily the husband) agrees that if they divorce in civil court and the husband authorizes issuing a get within six months thereafter, then their marriage was valid. Otherwise, their marriage was not a marriage from the moment it was celebrated.
If the husband does not authorize the get within those six months, this ruling does transform the couple’s sexual relations during their “marriage” from the status of sacred relations to licentiousness. However, it does not affect the ability of the woman or man to remarry or the status of their children. (In Jewish law, illegitimate children, mamzerim, are solely the products of adulterous or incestuous unions, not a union of two people who could be, and in this case were, married.)
The husband will still be pressed to issue a get, as it is the proper way to divorce in Jewish law, and if he subsequently wants to remarry, Conservative rabbis will require him to do so (get humra, a writ of divorce out of stringency). But, again, in the meantime, the woman is free to remarry. Furthermore, the document is in English, so people whose native language is English cannot claim that they did not understand what they were signing. Here is the text of the document:
On the ___ day of __________, ____, corresponding to the _____ day of ______ 57___ [in the Jewish calendar], in _________ [City and State], the groom, _______, and the bride, __________, of their own free will and accord entered into the following agreement with respect to their intended marriage. The groom made the following declaration to the bride: “I will betroth you and marry you according to the laws of Moses and the people Israel, subject to the following conditions: “If our marriage should be terminated by decree of the civil courts and if by expiration of six months after such a decree I give you a divorce according to the laws of Moses and the people Israel (a get), then our betrothal (kiddushin) and marriage (nissuin) will have remained valid and binding. “But if our marriage should be terminated by decree of the civil courts and if by expiration of six months after such a decree I do not give you a divorce according to the laws of Moses and the people Israel (a get), then our betrothal (kiddushin) and our marriage (nissuin) will have been null and void.” The bride said to the groom: “I consent to the conditions that you have made.” Signature of the groom: ______________ Signature of the bride:________________ We, the undersigned, acting as a Beth Din [Court], witnessed the oral statements and signatures of the groom and bride. ________________ (rabbi) ______________ (witness) ______________(witness)
Ultimately, if the couple did not complete a pre-marital document and the woman is an agunah because the husband cannot be found, is mentally incompetent, or refuses to issue a get, the Rabbinical Assembly’s Beit Din will annul the marriage (haf’qa’at kiddushin). It can and does do this because the Talmud says that every Jewish marriage is valid only if the rabbis agree to it (Yevamot 90b; Ketubbot 3a; Gittin 33a, 73a)– very much like the fact that civil marriages are valid only if they fulfill the laws of the state. At the same time, because the Torah (Deuteronomy 24:1-4) and subsequent Jewish law maintain that the standard way for a couple to dissolve their marriage is for the man to give his wife a writ of divorce, even when a marriage is annulled, thus freeing the woman to remarry, if the man later wants to remarry, Conservative rabbis require him to give such a writ (a get) to his wife to reinforce the standard way to dissolve a marriage. About twenty or thirty annulments are granted in any given year, freeing the women involved to marry again.