Halachic Prenups Increasingly Common in the US; Israel Lags
Advocates of such agreements argue that this extra financial burden is a strong motivating factor for recalcitrant partners to grant a divorce.
By Jeremy Sharon | March 20, 2019
Some 84% of Modern Orthodox rabbis in the US ensure that couples they marry sign a halachic prenuptial agreement, which has significantly reduced the number of “chained women” who have been denied a divorce by their husbands, a study conducted by the Beth Din of America (BDA) has found.
The study was released ahead of International Aguna Day, which is marked on the Fast of Esther and falls on Wednesday this year.
A halachic prenuptial agreement is a legal document signed by a couple before their wedding stipulating that in the event that the marriage breaks down and one of the spouses refuses to accede to the divorce, the recalcitrant partner is obligated to pay a significant financial sum every month as long as they deny their partner a divorce.
Advocates of such agreements argue that this extra financial burden is a strong motivating factor for recalcitrant partners to grant a divorce, and dissuades them from using the ability to deny a divorce as a bargaining chip to extort better terms in a divorce settlement.
For a divorce to be valid in halacha (Jewish law), a husband must willingly agree to grant a get, or bill of divorce, and his wife must willingly accept it. Refusal by either party prevents the divorce from being completed, and this power has infamously been used to extort better terms in divorce settlements.
BDA director Rabbi Shlomo Weissmann says that in the 25 years since the creation of a halachic prenuptial agreement for use in the US Orthodox community, there has been no case in which a woman became an aguna, the victim of long-term divorce recalcitrance by her husband.
He notes that the prenuptial agreement approved by BDA makes it clear to a recalcitrant partner that refusing a divorce would be financially burdensome, which changes the mindset of reluctant partners to not even think about the option of refusing the divorce.
Weissmann says that in almost every case in which a couple has signed a prenuptial agreement, the divorce has proceeded in a timely manner.
“When a prenuptial agreement is in place, the get is off the table. It’s not a tool that can be used for bargaining anymore because it becomes clear from the outset that it’s not possible to use the get for extortion; it stops this ugly process from developing,” Weissmann told The Jerusalem Post. “This is the most effective tool for solving the aguna crisis. It has effectively solved the problem in communities which have adopted it, and holds the promise of solving it in other communities which are yet to adopt it.”
One place where prenuptial agreements have not been widely adopted is Israel, which still suffers badly from the aguna scourge.
The Chief Rabbinate and the rabbinical courts administration have not endorsed any halachic prenuptial agreement, and some rabbinical judges are even hostile to such documents.
Israel does, however, suffer from a high incidence of divorce recalcitrance, principally by men but including women as well.
The administration counts only several dozen cases of divorce recalcitrance, but its definition includes only those spouses who a rabbinical court has ruled are obligated to accede to a divorce.
Since it can take many years for the courts to issue such a decision, the many hundreds of ongoing cases – in which a husband in particular has refused to grant a divorce for many years but has not yet been ordered by the court to give a get – are not included in the rabbinical court’s count.
Rabbi Dr. Kenneth Brander, president and head of Ohr Torah Stone network of institutions, is a prominent proponent of the adoption of halachic prenuptial agreements in Israel.
He notes the efficacy such documents have had in the US, estimating that some 30,000 couples have used them there.
Brander describes the documents as “a modern appendix” to the Jewish marriage contract, which was designed as a form of financial protection for divorcing women but has been abused.
“Halachic prenuptial agreements create a mindset that the couple is taking responsibility for each other when they get married and that part of being in love is taking up those responsibilities,” he said.
The rabbi said that he hopes the Chief Rabbinate and the rabbinical courts do eventually endorse the use of prenuptial agreements, but said that he and the Yad La’isha women’s divorce rights organization, which is part of Ohr Torah Stone, are moving forward regardless.
Some 3,000 couples have signed Yad La’isha’s halachic prenuptial agreement, while other couples have used other such documents available through similar organizations.
“While I am committed to working with the Chief Rabbinate and the rabbinical courts, my first responsibility – as a human, as a rabbi, and as head of Yad La’isha – is actually to ensure that Yad La’isha can close one day because there are no more agunot,” Brander said. “That is what we are working towards.”