Halakhic Pre-Nuptial Agreements

Reflections on the Agunah Crises by Rabba Sara Hurwitz

Featuring:
Rabbi Michael Chernick

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

By Rabba Sara Huriwtz
Co-Founder and President of Yeshivat Maharat

Rabba Sara Hurwitz

In 1776 , in Germany, a young man named, Isaac, son of Eliezer Neiburg of Mannheim, was engaged to marry Leah, daughter of Jacob Guenzhausen of Bonn. In the week leading up to the wedding, Isaac seemed pre-occupied exhibiting some strange behavior. The wedding, however, took place in the groom’s home town with much celebration, on the 8th of Elul 5526, August 14, 1766, and all seemed to bode well.

A week later, on Saturday night, after they had spent several days in Bonn, Isaac Neiburg told the community rabbi, that his life was in danger and that he must leave Bonn immediately, but in order not to leave his young wife an agunah, he wished to give her a divorce. He did admit that he had not found the bride to his liking, but noted that he was not divorcing her for this reason, rather because of the mortal danger threatening him. Rabbi Copenhagen’s attempts to dissuade him were to no avail, and therefore it was agreed by both sides that Isaac Neiburg would divorce his wife. Financial matters were agreed to, including payment of expenses by the husband, and Isaac consented to everything. Since there was not a recognized rabbinical court in Bonn, it was decided to turn to the rabbinical court in Cleves, a city on the border between Germany and Holland.

The rabbi of Cleves, Rabbi Israel Lipschuetz, met with both parties, and sanctioned the divorce and also a written monetary agreement, determining that Isaac was firmly resolved to give his wife a divorce, and that if it were not done on the spot his wife might be left an agunah.

Several weeks later it became known to the father of the groom that his son had divorced his wife and left the country. The father was incensed both because in his opinion his son had been forced to give a get, despite, in his words, “his delicate emotional state, and because the financial arrangements were to his disadvantage.” He turned to Rabbi Tevele Hess, who then turned to the rabbinical court of Frankfurt, a large and highly esteemed community, headed by Rabbi Abraham Abusch of Lissau, both of whom ruled that the get was indeed invalid.

What ensued was a 2 year heated and acrimonious debate that put two rabbinical bodies at odds with one another, with both Leah and Isaac, caught in the middle. Leah’s status kept changing, depending on the rabbinic ruling, from “divorced” to “possibly married,” and later to “certainly married.” And Isaac, at times was determined to be “of sound mind and therefore able to grant the get, and at other times, emotionally disturbed, and unable to authorize the writ of divorce. The fierce controversy was accompanied by accusations, insults and name-calling.

The battle did not subside until over two years later, with the death of the head of the rabbinical court of Frankfurt, Rabbi Abraham Abusch.

Today, there are hundreds and hundreds of disheartening and unjust stories of aggunot, women who are chained to unwanted marriages, of open cases that have found no resolution.

The source, for the procedure of divorce is found in our parsha. The Torah: (Devarim 24:1) says:

א כִּי-יִקַּח אִישׁ אִשָּׁה, וּבְעָלָהּ; וְהָיָה אִם-לֹא תִמְצָא-חֵן בְּעֵינָיו, כִּי-מָצָא בָהּ עֶרְוַת דָּבָר–וְכָתַב לָהּ סֵפֶר כְּרִיתֻת וְנָתַן בְּיָדָהּ, וְשִׁלְּחָהּ מִבֵּיתוֹ.

“When a man takes a wife and marries her, and it comes to pass that she does not find favor in his eyes because he has found some unseemly thing, then he writes her a bill of divorce and gives it to her in her hands and sends her out of the house.”

The Torah places the power to decide to divorce solely on the husband. And in fact, during the period of the Mishnah and Talmud it was possible to divorce a woman against her will. Recognizing the inequity that a woman could be forcefully thrown out of her own home Rabbenu Gershom living in the 10th century enacted a takkana, a decree that prohibited divorcing a woman against her will. A woman must accept the get in her hand in order for the get to be valid. The takkana of Rabbenu Gershon sought to protect the rights of women, however, there was one major flaw. Although a man can initiate a divorce, there is no parallel right for her to do so.

Therefore, if a woman demands a divorce and her husband refuses, her only hope is for the beit din, a court to compel him to divorce her, as stated in the gemara, Tractate Yevamot (106b): “Pressure is put on him until he says he is willing [to divorce his wife].”

For me, here in lies one of the problems. Much like Leah and Isaac, we too must rely on the halakhic wisdom and compassion of a beit din, a court of judges to dissolve the marriage and force the husband to give a get. And therefore, the Get of Cleves, as it has become to be known by scholars, is indicative of a deep flaw of the rabbinic court system.

It is true, the laws surrounding the circumstances of giving a get are quite complex. In our case, the issue at hand was whether Isac was of “sound mind” at the time of the get. And since the Get of Cleves, and even before that, Rabbinic authorities, aggunah activists, and academics have sought to find solutions to solve the aggunah crisis. Many solutions have in fact been found and written about, and Rabbi Chernick outlines several possibilities. I will briefly lay out a few:

The most commonly accepted solution is the halakhic pre-nup, which stipulates that a husband must monetarily compensate the woman for each day that he refuses to give her a get. Today, most Modern Orthodox rabbis will not officiate at a wedding unless the couple agrees to sign a pre-nup.

Another solution is creating a kiddushin tanai, or conditional wedding ceremony, where the couple signs a document saying that if the couple should civilly divorce, and a get is given within 6 months, then the kiddushin, the marriage is valid. But, if the get is not granted within 6 months of the civil divorce, then the marriage is not considered valid, and a get becomes unnecessary.

Yet another solution is kiddushin ta’ut, a marriage entered into under mistaken assumptions, including lack of knowledge of a defect in the husband that pre-existed the marriage. A beit din may declare this marriage to have never been validly established, so the need for a get to end the marriage does not apply.

Another solution worth mentioning is Hafka’at Kiddsuhin, where the marriage is rendered invalid because of a technicality, such as witnesses who is not considered to be kosher. Here again, a get is rendered unnecessary.

With each of these solutions, there are challenges. What does it say about the sanctity of marriage, of kiddushin, if one is creating a condition for eventual divorce, or poking around for technical reasons to negate the marriage entirely. But, with healthy debate, I do believe that the solution exists.

So why then, are so many women still aggunot? Why can we not once and for all, solve the aggunah crises?

Much like the Case of the Get of Cleves, the many existing rabbinic batei din cannot agree on a universal solution, let alone publicly accept the solutions available to them. But what stands out about the Get of Cleves, is the seemingly arbitrary force and power with which the beit din forces its rulings.

The rabbinical court in Frankfurt, brought its full weight to bare in order to impose its position and invalidate the divorce, even though the event did not take place within its area of jurisdiction and the Cleves rabbinical court was not subordinate to it. In addition, contrary to accepted practice, the court was unwilling to publicize the any of the testimonies it had taken, or the halakhic arguments for invalidating the get.

The Cleves Get episode rocked the Jewish and rabbinic world of 18th-century Europe, having far reaching ramifications in the rabbinical court systems of Germany, England and Poland. Each court, each rabbi, digging in their heels, and refusing to collaborate to find a solution, and save a young couple from pain, hurt, and public humiliation.

Something has to change.

The founding of the International Beit Din (IBD) is helping. Made up of courageous Orthodox rabbis who bring to bare an expertise in the halakhic analysis as well as deep compassion for women, and men, who are struggling through a potentially acrimonious situation. It is a court that has deep integrity and sense of justice, devoid of corruption. And on a case by case basis, they work to apply one of the available solutions to not only free each and every aggunah, but to prevent women in the future from ever becoming chained to their unwanted husbands. That, is the first step.

An essential ingredient to sustaining such a beit din, is gaining community wide acceptance. Through advocacy work, we must commit to finding 100 community rabbis and scholars to support the decisions of IBD, to trust their public decisions of when to dissolve a marriage, and when to grant a get. We must support rabbis who will honor the gittin performed and agree to officiate at a women’s 2nd marriage. Who will accept the children into their schools and synagogues.

We have already come so far. The Torah’s principal of allowing a husband to willfully divorce his wife against her will was mitigated by the takkana of Rabbenu Gershom a millennium ago. It is now time to extend Rabbenu Gershom’s takkana one step further, by supporting the IBD and it’s decisions.

If the batei din of Frankfurt, Cleves, England and Germany in the 18th century had worked together towards accepting one another’s solutions, much heartache and distress would have been avoided. And then, the intention of Rabbenu Gershom’s takkana, of protecting the rights of women and families, will truly be upheld.

Let’s pray that the Leah’s of our world will once and for all be free from unwanted marriages.

Social justice, rather than immutable precedent, must govern the civic life of Jewry

Featuring:
Rabbi Michael Chernick

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

By Rabbi Deborah Waxman
President, Reconstructionist Rabbinical College
/ Jewish Reconstructionist Communities

Rabbi Deborah Waxman

The ongoing existence of agunot in the aftermath of World War I and the inadequate responses of modern rabbinical authorities to the unjust and painful situation of these women were critical factors that impelled Rabbi Mordecai M. Kaplan to move beyond a halakhic system and begin to articulate a Reconstructionist approach to Judaism. In his 1936 essay “The Status of Woman in Jewish Law,” Kaplan analyzed ways that halakhah mandates women to second-class status, most especially around marriage (“it is in the marriage relationship chiefly, where the woman’s inferior status is fraught with tragic consequences to her”) and divorce (“the woman experiences the worst effects of her status when she can no longer continue to live with her husband”).  After assessing contemporaneous efforts to resolve this problem as either regressive or ineffective, Kaplan concluded that halakhah was an insufficient medium of repair and declared:  “[S]ocial justice, rather than immutable precedent, must govern the civic life of Jewry and underlie…juridical institutions…”

More than 80 years later, contemporary Reconstructionist practice builds on Kaplan’s original analysis and falls squarely within the feminist critique articulated by Rabbi Chernick, which points to why for most Reconstructionists his solution feels ultimately inadequate.  In a post-halakhic approach, Jewish divorce becomes an opportunity to enact ritual in the service of the spiritual and emotional transition of the people involved.  The focus becomes meaning seeking rather law observance.

The problem of agunot is eliminated by empowering women as actors within this ritual, preferably in an egalitarian procedure where both partners divorce each other rather than investing all power in one individual (historically and halakhically, the man in a heterosexual relationship).  In the instance when a man refuses to give a woman a get, she is then empowered to initiate on her own (and vice versa—post-halakhic Judaism has also created the possibility of agunim and must accommodate same-sex Jewish marriages).  Since single-initiated divorce can be disempowering to the person who does not agree, the Reconstructionist movement has also created a ritual of release from relationship to accompany civil divorce—not identical to a get, but clearly communicating that the ritual enacts the desires of only one member of the relationship.

Even before the establishment of the State of Israel, Reconstructionists have been concerned about the potential totalitarian implications of religious authority married to state power.  The persistence of agunot in Israel despite the power of local authorities to resolve them highlights the problematic nature, rather than revealing redemptive possibilities.  For these and other reasons, most Reconstructions insist on religious pluralism in Israel and prefer, as does Hiddush and RRFEI, separation of synagogue and state.

RRFEI Special Edition: Articles on Halakhic prenuptial agreements

Featuring:
Rabbi Michael Chernick

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

 

Dear Friends,

Rabbi Mark Levin, Editor-in-Chief, Rabbis for Religious Freedom and Equality in Israel newsletter

This special series of RRFEI articles features an original work by Orthodox Rabbi Michael Chernick, Professor Emeritus of Rabbinic Literature at HUC-JIR, New York, with responses from Rabbis Mark Washofsky, Elliot Dorff and Daniel Siegel. Rabbi Washofsky’s affiliation is Reform; Rabbi Dorff’s is Conservative and Rabbi Siegel is with Jewish Renewal.

We hope you will respond and air your voice also on this essential issue of egalitarianism and halakhah. (I want to note that we invited two women scholars to respond, and neither had the time; but we hope for responses from our women colleagues and a robust discussion of these ideas.)

As we all know, being a “chained” woman (agunah) causes untold suffering, and justice demands we create a solution to this oppression. You will see in today’s article by Professor Michael Chernick an analysis of the problem, a review of the historical remedies and suggestions for moving forward.

In addition, we are bringing you responses from 3 current halakhic authorities:

Rabbi Mark Washofsky, Freehoff Professor of Jewish Law and Practice at HUC-JIR Cincinnati; Rabbi Elliot Dorff, Chairman of the Rabbinical Assembly’s Committee on Jewish Law and Standards; and Rabbi Daniel Siegel, Founding Director, Integral Halachah Institute.

Shall we stay within the halakhic system to resolve the issues, or turn to civil courts? What is the appropriate role for civil courts in the Diaspora, and what is their role in the Jewish State? Some believe there should not be civil courts in Israel, that all law must be according to halakhah. Some would have that law change in structure, for example: that women be able to not only receive a get but give one as well, that both parties in a divorce should receive a divorce decree (get) from their spouse.

Clearly not only has the role of the streams of Judaism not been resolved in Israel, but the questions of which legal system to follow: civil or Jewish, who decides on halakhah, and how innovative can halakhah be in the modern context demand resolution.

RRFEI and Hiddush prefer a separation between religion and state, and in the case of marriage law, the possibility of civil marriage and divorce for those who choose. Clearly, as you will read in these articles, reasonable and reasoned rabbis may disagree, but all insist that injustice demands a workable solution. The Jewish people needs to hear your voice as well.

We hope you enjoy this special series; and even more important, we hope you will join the discussion.

Kol tuv, as we count our way to Sinai,

Mark

Rabbi Mark H. Levin
RRFEI Editor

Halakhic Pre-Nuptial Agreements: Why Are They Needed? How Do They Work? Do They Work Here and Abroad?

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.

Three Points on the Halakhic Prenup

Featuring:
Rabbi Michael Chernick

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

By Rabbi Mark Washofsky
Solomon B. Freehof Professor of Jewish Law and Practice
HUC-JIR/Cincinnati

Rabbi Mark Washofsky

Rabbi Michael Chernick, my colleague at Hebrew Union College-Jewish Institute of Religion, has offered a comprehensive and thorough summary of the issues surrounding the halakhic pre-nuptial agreement. I find in it absolutely nothing to critique and very little to add. I do, however, have three brief comments, which are based upon a recent entry in the blog of the Solomon B. Freehof Institute of Progressive Halakhah (http://blog.huc.edu/freehof/2016/02/29/the-halakhic-prenup-a-great-idea-mostly/).

1. Don’t Let the Perfect Be the Enemy of the Good. Even if it passes halakhic muster (and, as Rabbi Chernick notes, it has encountered strong opposition from the haredi rabbinical community), the halakhic prenup does not solve the agunah problem. A recalcitrant husband can still refuse to issue a get to his wife so long as he can either evade the jurisdiction of the beit din or is willing and able to bear the costs imposed upon him by the agreement. Even with the prenup, the morally outrageous problem of the “chained” wife still exists under Orthodox Jewish law; thus, were we to judge the agreement by its ability to solve that problem, we would have to call it a failure. Still, we should not ignore the possibility the agreement can bring relief to some, and perhaps many Jewish women. Pragmatism is not a bad thing, and on that basis the Jewish world ought to welcome the determination of centrist Orthodox rabbis to utilize this measure as a way of doing what good they can.

2. Don’t Stop Working for a Real Solution. Let us not lose sight of this fundamental reality: the very existence of the agunah problem is an intolerable stain upon the reputation of Jewish law for equity and justice. The prenup, which is certainly better than nothing, is, again, not a solution to the agunah problem, which exists because traditional Jewish law does not empower the wife to divorce her husband. Rabbi Chernick refers to a variety of actual halakhic solutions that have been suggested over the years. I call them “solutions” because they would effectively terminate a marriage in the event of get-recalcitrance, with no need to resort to financial or other pressure – which may or may not work – against the husband. If any sort of “pressure” is needed, it ought to be exerted upon the Orthodox rabbinical community, the majority of which has stubbornly refused to countenance these proposals, to find a real solution.

3. To My Fellow American Reform Jews. As long as I’m criticizing the performance of the Orthodox rabbinate on the agunah question, I should not overlook the fact that the Reform rabbinate in the United States, of which I am a member, has done away entirely with gerushin, the legal requirement of Jewish divorce as a prerequisite for remarriage. I believe that decision to be an historical error; for reasons too involved to specify here, it was based upon arguments that are no longer persuasive, if they ever were. The American Reform movement could and should institute a truly egalitarian process of Jewish divorce for its members. That, too, is a “solution” to be pursued.

A Conservative Response to the Orthodox Prenuptial Agreement

Featuring:
Rabbi Michael Chernick

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

 

By Rabbi Elliot Dorff, Chair
Rabbinical Assembly’s Committee
on Jewish Law and Standards

Rabbi Elliot Dorff

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.

 

The Conservative Ante-Nuptial Agreement

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)

 

Annulling the Marriage

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.

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

Featuring:
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.