Good news on the agunah front: the halakhic prenup is gathering steam. It’s the latest[1] solution designed to provide relief for the wife whose husband refuses to issue her a get (a Jewish divorce) even when the civil divorce has been completed, thus leaving her “chained” (the literal sense of the word agunah) to him under Jewish law. The prenup enjoys a considerable public presence: it has its own website, several Facebook pages, organizational backing, and the support of a number of Orthodox rabbinical luminaries.
Here’s how it works. Like all other “prenups,” this one is a contractual agreement signed by the couple prior to marriage. Each partner agrees to appear before the a particular beit din (rabbinical court) should the other demand it and to abide by that court’s decisions with respect to the get. In the event they separate, the husband obligates himself to pay his wife’s m’zonot (מזונות, the halakhicly-mandated level of financial support) until such time as he delivers her a get. The amount of this support is currently set at $150 per day, a sum that is thought significant enough to induce most husbands to comply with the rabbinical court’s order yet not so outlandish as to constitute coercion, which, given that the husband must issue the get of his free will and consent, would invalidate the document.[2] What really counts: this prenup has actual teeth. As a duly-notarized agreement, it is enforceable at civil law.[3] Should the husband fail to pay his duly-contracted level of support, the wife can sue in the civil courts to collect it.
The prenup thus empowers Jewish legal authorities to enforce their decisions, so that they can do justice for the agunah rather than merely express their sympathy for her. The rabbis and the organizations that have worked so hard to draft the prenup deserve our thanks, especially given the continuing opposition to their efforts within ḥaredi (“right-wing” Orthodox) circles.[4] The prenup, to be sure, is not perfect. Many Orthodox rabbis, especially ḥaredim, do not require that couples enter into the agreement, and not all couples choose to do so. And the wife who seeks to enforce it may encounter certain legal and financial disadvantages.[5] Still, if it offers relief to any agunah and leads to the successful resolution of any of these tragic cases, we should be grateful to those who have brought it into being.
So why do we say that the prenup is mostly a good thing? Because for all its good intentions, and indeed for the good it might actually accomplish, it doesn’t address the core halakhic problem: the imbalance of power that creates the agunah situation. In classical Jewish law, the husband enjoys the exclusive authority to divorce: it is he, and not his wife, who must grant consent for the writing and the delivery of the get. If a husband either cannot issue a get or simply refuses to issue one – whether out of self-righteousness, a desire to wring more favorable concessions from his wife, or simply of sheer spite – Orthodox halakhah holds that she cannot remarry. While the prenup seeks to remedy this imbalance by pressuring the husband into granting consent – in that sense, it’s a restrained sort of coercion – it obviously will have little effect if the husband lacks financial assets. And it does nothing to release agunot whose husbands are unable to issue divorces, for example, if they have disappeared, run away, or have become insane and are therefore legally incompetent to grant consent. In all such cases, the wife has no recourse whatsoever; she remains legally bound to her husband long after the marriage has for all practical purposes ceased to exist.
As a matter of simple justice, the obvious thing to do is to right the imbalance, to give the wife the same power to end the marriage that the husband now enjoys. The ancient and medieval Rabbis made a start in this direction,[6] and it’s the method employed by Progressive Jewish communities around the world. But Orthodox rabbis maintain that the Torah does not empower a wife to divorce her husband. Another approach is to create a halakhic device that would dissolve the marriage without the need to obtain the husband’s express consent; it would take effect in the event that he refuses a beit din‘s order to issue a get. Various such devices have been proposed over the years by a number of halakhic scholars[7] (yes, Orthodox halakhic scholars), the Conservative movement in North America uses a variant of this approach, and some Orthodox rabbis have adopted it as well. But the Orthodox rabbinical consensus has rejected all those devices as contrary to Torah law.
So… since the wife cannot authorize the divorce, and since the beit din cannot end the marriage, the only recourse is to use persuasion, public shaming,[8] and/or financial pressure in order to induce the husband to do the right thing. The prenup is a form of the latter, and it is (mostly) a good thing. After all, let not the perfect be the enemy of the good; if this is the best that the Orthodox rabbinate can do, then they should do it. Still, one would think that “pressure” would be unnecessary. If the husband is required under Jewish law to issue the divorce, shouldn’t the halakhah be able to do justice under its own authority, without having to resort to the civil courts to lean on the husband to fulfill his Jewish legal duty? That the prenup is necessary testifies to the impotence of Orthodox halakhah to clean up the mess that it has created. That this is indeed, in the eyes of the Orthodox rabbinate, “the best we can do” is an enduring stain on the reputation of Jewish law.
We ought to do better.
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[1] Though it is just now gaining wide publicity, the idea has been discussed in Orthodox circles for decades. An early example is Elyakim Elinson, “Seruv Latet Get (Refusal to Grant a Divorce),” Sinai 69 (1971), pp. 151ff. The article notes that the roots of the proposal stretch back even farther. For a treatment in English see J. David Bleich, “Modern-Day Agunot: A Proposed Remedy,” Jewish Law Annual 4 (1981), pp. 167ff.
[2] On coercion in Jewish divorce, our recent post. For a theory that explains the irony of coercing a husband to “willingly” authorize the divorce, see Mishneh Torah, Hil. Gerushin 2:20. There’s obviously a fine line between legitimate and illegitimate “coercion.” The $150 per day amount specified in this prenup is thought by its designers to lie on the right side of that line. A larger amount, which would impose heavy financial penalties upon the recalcitrant husband, would lead rabbinical authorities to question whether the husband truly consented to issue the get.
[3] By virtue of the agreement, the beit din is empowered to act as a court of arbitration; under its terms, the couple agree to abide by the beit din‘s rulings.
[4] The list of rabbis who endorse the prenup contains is heavily weighted with names associated with “centrist” (=RCA) Orthodox circles. For halakhic criticism of the prenup, see here.
[5] See Susan Metzger Weiss, “Sign at Your Own Risk: The ‘RCA’ Prenuptial May Prejudice the Fairness of Your Future Divorce Settlement.”
[6] The Sages (the Rabbis of the Talmudic period) permitted the wife to sue for divorce in a beit din, which could then require or even coerce the husband to issue a get. And a famous takanah (rabbinical enactment) attributed to R. Gershom b. Y’hudah (10th-century Germany) requires that a wife must grant her consent to the divorce before it can be executed. But while these measures aimed at equalization, they didn’t quite succeed; the power to authorize and issue the divorce remains exclusively in the husband’s hands.
[7] These include: a) קדושין על תנאי, in which the husband at the time of marriage stipulates that his act of marriage (kiddushin) will retroactively be considered null and void should he refuse an order from a beit din to issue a get; b) גט על תנאי, in which the husband at the time of marriage authorizes the writing and delivery of a get to his wife in the event that a beit din should rule for divorce; and c) הפקעת קדושין, the annulment of the marriage by an act of the beit din.
[8] For those who have problems with the Haaretz paywall and can handle the language, the Hebrew version of the article has been posted on the Chief Rabbi’s Facebook page.