Therefore, be it resolved that every member of the Rabbinical Council of America will utilize pre-nuptial agreements, which will aid in our community’s efforts to guarantee that the get will not be used as a negotiating tool in divorce procedures.1
Much ink has been spilled in the past few decades regarding what is known as the modern-day agunah problem. Scholarly articles, both rabbinic and academic, have appeared in print and on the internet.2 Despite the seeming proliferation of discussions as to the seriousness and pervasiveness of the problem, to date there exists only one practical method of prevention which can be utilized by the general populace. That method is the signing of a pre-nuptial agreement for the prevention of get-refusal, prior to the act of kiddushin (sanctification of the marriage).
When delving into the agunah problem, a distinction must be drawn between the classic definition of an agunah and a victim of get-refusal. Halakhically, an agunah is a woman whose husband has disappeared and we have no knowledge as to whether he is alive or dead. The example used is the passenger on a boat that sank in “waters that have no end.”3 Although this is still a phenomenon which can be found today,4 the more prevalent problem is that of a husband who is alive and well (and may even be standing in front of the rabbinical court) who is explicitly refusing to give his wife a get. In order for a Jewish divorce to be valid, the husband must place the get in his wife’s hands out of his own free will. If he does not have the will to divorce his wife, no other party—person or court, can do so in his stead. In common usage, the term agunah now includes a victim of get refusal.
To date, there is no general commonly accepted halakhic solution or method of prevention to the classic situation of the “husbandless wife.” This seeming oxymoron accurately describes the situation of the woman whose husband has disappeared or is not legally competent. She is married to a man who has ceased fulfilling the role of a husband. Nevertheless, according to the halakha she cannot change her personal status to that of unmarried.
The pre-nuptial agreement addresses the more common problem today—that of get-refusal. The modern-day agunah has requested the dissolution of her marriage in the proper halakhic manner but has met up with her husband’s flat refusal, laying down of unreasonable conditions, extortion or even resistance to stepping into a rabbinical court. This woman may find herself living separated from her husband for an extended period of time or even civilly divorced if she lives in the Diaspora.5 Yet, as long as she does not receive a get from her husband, she remains married to him. She is prevented from remarrying within Judaism. If she is Orthodox, she will not even go out for coffee with another man, let alone strike up a serious relationship. The natural progression of her life is broken, affecting her day-to-day life, her children’s development and her extended family. This, in turn, has a negative effect on Orthodox Jewish society, which is founded on the building blocks of healthy family units. It is in that society’s interest to prevent these situations, which unfortunately, are not anomalous. Hence the recommendation to every soon-to-be married couple to sign a “prenup”, emanating from the resolution of the RCA shown above.
“a husband…alive and well… is explicitly refusing to give his wife a get…”
In the United States, the most prominent pre-nuptial agreement for the prevention of get-refusal is the agreement of the Beth Din of America.6 It is in essence, as its title demonstrates, a “binding arbitration agreement.” The Beth Din, accepted by both bride and groom as an arbitration panel, is legally enabled to render a binding decision in all issues relating to a get. This ensures that all adjudication leading up to the administration of a get is done according to halakha, by rabbinical judges. For clarification—if the same process of adjudication were to be handled by a civil court, say the New York Family Court, the resulting get would be considered null and void, invalidated by the very process which led up to its inception.7 The clauses of the pre-nuptial agreement delineate the rules accepted by the signatories, according to which the rabbinical court should rule. There are optional clauses authorizing the Beth Din to rule on monetary matters or child custody and related issues. The entire agreement is in keeping with the law of the state in which it is signed.
The heart of the pre-nuptial agreement is the monetary obligation undertaken by the groom. He obligates himself to support his wife at a particular rate (from the point of separation) as long as they are married according to Jewish law, if the Beth Din renders a decision enforcing this obligation. In essence this means that from the point that his wife asks for a get and the Beth Din recommends that he deliver the get, until he gives the get, the husband is obligated “to support my Wife-to-Be from the date that our domestic residence together shall cease for whatever reasons, at the rate of $150 per … in lieu of my Jewish law obligation of support so long as the two of us remain married according to Jewish law….” The agreement empowers: “the Beth Din of America (to) issue its decision despite the defaulting party’s failure to appear, and (to) impose costs and other penalties as legally permitted.”8
A different agreement developed in Israel,9 called the Heskem L’Kavod Hadadi—the Agreement for Mutual Respect— essentially works on the same principle of spousal support in the case of recalcitrance. However, in this case, the obligation is mutual. Both the bride and the groom obligate themselves to support the spouse, the amount ranging from $1500 per month to half his/her monthly net income. The obligation is activated after notification plus a defined waiting period, if the couple is still married according to halakha. If a spouse is willing to give/ accept a get unconditionally at that point, his/her obligation is voided. In this manner only the recalcitrant spouse’s obligation will remain in effect. Obviously, if a get were administered during the waiting period, neither spouse would be obligated. There are additional matters covered by this agreement. If one of the spouses demands marital therapy, the other must comply—up to three visits. The community property law of the State of Israel is accepted as halakha for those that sign the agreement. In short, this is a mutual agreement which takes our modern-day philosophy of marriage as one of partnership, cooperation and mutual respect, and anchors this outlook deeply in the halakha. It is an educational tool as much as it is an agreement for the prevention of get-refusal.
Neither the agreement of the Beth Din of America nor the Agreement for Mutual Respect is always effective in particular cases. Since both are based on a monetary obligation incumbent on the recalcitrant spouse, if that party has no assets or income (or has managed to hide them) and/or is already in debt, then an accrued debt may not have the desired effect. The recalcitrant husband may, then, just ignore the agreement. At the other extreme, if the husband has become wealthy, the fixed amount specified in the American agreement may prove to be negligible. The husband may determine that the expense is worth his while. The Israeli agreement has minimized that particular possibility by obligating the recalcitrant party to pay the higher of a fixed minimum amount, or 50% of his or her net monthly income.
It has yet to be determined whether an agreement signed in one country, the U.S. or Israel, will be binding when put to the test in the other country. Both the Beth Din of America and the authors of the Agreement for Mutual Respect must cooperate in finding the formula for reciprocal clauses.10 These would provide jurisdiction in the country which was not the country-of-origin, if the spouses were to find themselves overseas at the point of divorce.
It must be noted that although the signing of a pre-nuptial agreement is vital in this day and age, it is not a “magic pill” which cures all evils. The pre-nuptial agreement is a form of insurance which is reliable for the common problem of get-refusal, but is not effective in all circumstances. Orthodoxy has yet to develop additional solutions which, when added all together, would resolve the “agunah” problem. The dissemination and usage of the pre-nup is but the first step in this process. Its acceptance in both rabbinic and lay circles not only protects the individuals who sign the agreement; in addition, the practice of signing such an agreement, together with its proven effectiveness,11 sets the groundwork for the opening of the hearts and the minds towards the development of additional, deeper solutions.