“Nowhere But Here”: Becoming Advocates for the Halakhic Prenuptial Agreement
This past summer, I had the privilege to intern at the Organization for the Resolution of Agunot (ORA). Although I rarely worked directly with any of the agunot, I was often responsible for answering the office phone, and occasionally a woman would call, asking if ORA could help her. After speaking with a few of these women, I began to notice certain common characteristics that were discernible even during my brief conversations with them. These women’s voices often betrayed a sense of uncertainty, their words a disbelief in our ability to help them. Hopelessness, doubt, and fear were often conveyed through the short telephone conversations. Soon, I began to wonder what the experience of simply calling our office must be like. I pictured a woman standing alone in her house after making sure that all of her children were out of earshot, while she mustered the courage to admit to a complete stranger that she fears her husband will never give her a get (writ of Jewish divorce). I wondered what it must be like to cope with such a reality. Divorce, and certainly get-refusal, is usually the farthest thing from a woman’s mind as she plans for her wedding, and now, perhaps a few months, years, or even decades after the wedding day, the idea of divorce and the fear of being held an agunah likely occupy many of her waking hours.
Until relatively recently in Jewish history, the term agunah was used to describe a woman who was unable to remarry because her husband was either lost at war or at sea and it could not be determined whether he was alive or dead.[ii] A “modern day agunah,” however, may be looking at her husband from across the room at a divorce proceeding or through a car window as he picks up their children. Her inability to remarry stems not from an uncertainty as to whether or not her husband is alive, but from his refusal to issue her a get after their marriage has functionally ended.[iii] Unlike the secular court system, in which a court official has the power vested in him or her to declare a couple married or divorced, Jewish law views marriage as a contract between two people whose status cannot be effected by a third party. According to Halakhah, a beit din (halakhic court) is incapable of divorcing a husband and wife. Rather the husband must be the one to issue his wife a get to terminate their marriage.[iv]
As Beth Din of America director R. Shlomo Weissmann explains, in years past, if a beit din ruled that a marriage was irreconcilable and that a husband should issue his wife a divorce, the Jewish court had the authority necessary to enforce its ruling, and could threaten a recalcitrant husband with excommunication or even physical violence in some cases. Today, however, Jewish courts of law in the Diaspora lack the necessary authority to enforce their rulings. To threaten physical violence against a recalcitrant husband for not complying with a beit din’s ruling would be illegal, and the threat of excommunication means little today due to a lack of cohesiveness within our Jewish communities.
The combination of these factors has led to a situation in which it is possible for a husband to use the get as a weapon to extort significant financial or child-custody related concessions from his wife, and in some cases may withhold it merely out of spite. Without a get, a Jewish woman is unable to remarry within the confines of Halakhah, and if she were to have children with another man, those children would be considered mamzerim by Jewish law.[v] In the frum community, a woman without a get “will not even go out for coffee with another man, let alone strike up a serious relationship,”[vi] leaving her chained to a marriage that has ended but unable to move on to a new relationship or have more children.
A solution to the agunah crisis was suggested twenty years ago by R. Mordechai Willig (Segan Av Beth Din at the Beth Din of America and a rosh yeshivah at YU). In coordination with many halakhic and legal experts, he devised a halakhic prenuptial agreement that holds the promise of “ending the agunah problem as we know it” (as expressed by R. Weissmann).[vii] As explained on the website of the Beth Din of America, a couple signing the halakhic prenup agrees, in essence, to two things. First, that if at some point in their marriage one spouse summons the other to beit din, they both agree to appear before the mutually-agreed-upon beit din specified in their prenup, and to abide by the ruling of that court with regard to the get. This stipulation helps to prevent the prolongation of the Jewish divorce process by ensuring that there will be no disagreement as to which beit din the couple will attend, and establishes the beit din as the vehicle through which the issue of the get will be decided.
Second, the couple agrees that, in the event of separation, the halakhic obligation of the husband to support his wife “is formalized, so that he is obligated to pay $150 per day (indexed to inflation), from the date he receives notice from her of her intention to collect that sum, until the date a Jewish divorce is obtained.”[viii] If, however, the wife fails to appear before beit din or to abide by the decision of the court, she is no longer entitled to receive those payments. Since the prenup is a legally binding arbitration agreement, a civil court is able to enforce the financial obligation, which the rabbinic court is powerless to do, thereby giving the husband a financial disincentive to refuse to issue a get. [ix]
Halakhic prenuptial agreements have received widespread rabbinic support—including in a letter signed by twenty-one of our own roshei yeshivah endorsing their use[x] and a Rabbinical Council of America (RCA) resolution declaring that none of its nearly 1,000 member rabbis “should officiate at a wedding unless a proper prenuptial agreement has been executed.”[xi] Other leading posekim of our generation have also given their stamp of approval to the prenup, including R. Zalman Nechemia Goldberg (prominent Torah scholar and posek in Jerusalem), R. Gedalia Dov Schwartz (Av Beth Din of the Beth Din of America), R. Osher Weiss (Rosh Kollel of Machon Minchas Osher L’Torah V’Horaah), and R. Ovadiah Yosef (former Sephardic Chief Rabbi of Israel), among others.[xii] So far, the prenup has also held up to its claim of preventing cases of agunot. According to R. Weissmann, the prenup “has been utilized in scores of cases before the Beth Din of America, and has consistently prevented the use of the get as a tool for improper leverage or extortion.”[xiii]
The prenuptial agreement can only be effective on a wide scale if it is adopted as a community standard, since those who are most likely to need it are usually those least likely to sign it. In class, I once heard R. Saul Berman draw an interesting parallel between the halakhic prenuptial agreement and the ketubbah, a measure instituted by Hazal to protect a woman financially in the event of divorce or the death of her husband. Hazal decreed that no woman was permitted to waive her right to a ketubbah, even if she was financially secure and seemed to have no need for it.[xiv] Rabbi Berman explained the rationale for this law as follows: Hazal understood that if a woman could choose not to have a ketubbah, it may lead to a situation in which a husband could pressure his wife into forgoing the ketubbah with a claim of, “don’t you trust that I would take care of you?”
It is, of course, these women who are most vulnerable to being exploited. So, too, even if a woman is absolutely confident that she has no reason to doubt her hatan, by failing to sign a prenuptial agreement she makes it easier for another woman to be in danger of being pressured by her fiancé to not pursue a prenup because he claims it is unnecessary. If we could create a situation in which it is as unheard of to get married without a prenup as it is to get married without a ketubbah, the risk of women falling prey to such pressures would disappear.[xv]
At Yeshiva University, we have a unique opportunity to implement the prenup as a communal standard, if not for world Jewry at large then at least for our small corner of Manhattan. The student population of Yeshiva University is, to my knowledge, the best educated group of Jewish students in the country with regards to the importance of signing a halakhic prenup. Nowhere but here do our Jewish Studies teachers make plugs during class for signing the prenup. Nowhere but here do we have a rosh yeshivah who is the primary author of the most widely used version of the halakhic prenup today, and nowhere but here do we return home to our dormitory rooms to find a packet of information about the prenup left on our doorstep by ORA, with the phrase “Friends Don’t Let Friends Get Married Without the Prenup” looking back at us.
While I would love to say that the result of this heightened awareness is that all Yeshiva University students who are walking down the aisle sign a prenup beforehand, I know that this is not the case. Just a few weeks ago a young woman who I am friendly with at Stern refused to sign one before getting married because she was convinced it was unnecessary. Tamar Epstein, who was called “the country’s most famous agunah” by The New York Times and who has been waiting for over four years to receive a get, is a Stern alumnus who was unaware of the prenuptial agreement at the time of her marriage.[xvi], [xvii] She said last year at a panel on the agunah crisis hosted by Yeshiva University that she believes that had she signed a prenuptial agreement, she would have likely already received a get.[xviii]
As students informed about the importance of the prenuptial agreement, we have a special opportunity and obligation to ensure that not another single alumnus of Yeshiva University becomes involved in an agunah situation that could have been prevented had she signed a prenup. Although asking a friend if she is planning on signing a prenup while she is on a pre-wedding high may be awkward, if it could potentially save her one day from the pain and suffering experienced by an agunah, then could anything be more important? If we as a student population commit to asking each of our engaged friends about signing the prenup, if we continue to talk about the prenup and remove the stigma that sometimes seems attached to it, we have a real chance of eliminating the existence of the modern-day agunah, at least from our own small segment of the Jewish community.
Kimberly Hay is a junior at SCW majoring in Physical Sciences, and is a staff writer for Kol Hamevaser.
[i] “Nowhere But Here” is a slogan used by Yeshiva University’s administration to describe the unique opportunities available to the students of YU, who benefit from both a rigorous secular and an intensive religious education. See “Nowhere But Here,” available at www.yu.edu.
[ii] See Yevamot 88a and Yevamot 121a.
[iii] It should be noted that, while uncommon, there have been instances where a woman has refused to receive a get, effectively prohibiting her husband from remarrying according to Jewish law. In this article, I refer only to the issue of agunot because the vast majority of get-refusal cases involve a husband who is refusing to give his wife a get. However, any use of the get as a tool for extortion, whether by a man or a woman, is certainly reprehensible. The Beth Din of America has a reciprocal version of the prenup available that addresses the issue of get-refusal by either party, available at: www.getora.org.
[iv] See Devarim 24:1 and Yevamot 14:1.
[v] R. Shlomo Weissmann, “Twenty Years with the Prenuptial Agreement,” Viewpoint Magazine (National Council of Young Israel) 54,1 (March, April 2012): 66-68.
[vi] Rachel Levmore, “The Prenuptial Agreement for the Prevention of GET-Refusal,” JOFA Journal 4 (Summer 2005): 4. Available at: www.jofa.org.
[vii] Weissmann, 66.
[viii] “Explaining the Prenup: What Does the Prenup Say?,” available at www.theprenup.org.
[x] “Resources: Prenuptial/Postnuptial Agreements,” available at: www.getora.com.
[xi] “Use of Prenuptial Agreement,” available at www.rabbis.org.
[xii] “Explaining the Prenup: Rabbinic Endorsements,” available at: www.theprenup.org.
[xiii] Weissmann, 67-68.
[xiv] Rambam, Mishneh Torah, Hilkhot Ishut 10:10.
[xv] From Rabbi Berman’s SCW class: “The Individual in Society.”
[xvi] Mark Oppenheimer, “Where Divorce Can Be Denied, Orthodox Jews Look to Prenuptial Contracts,” New York Times Online Edition, 16 March, 2012, available at: www.nytimes.com.
[xvii] “Epstein-Friedman Case Fact Sheet,” available at: www.freetamar.org.
[xviii]“Fighting the Agunah Crisis: A Panel,” available at: www.yutorah.org.