If one can’t have a good marriage, at least have a good divorce
Get-refusal is nothing less than a disgrace. Although it is not forbidden by Jewish law, we have a moral and religious obligation to prevent it.
By Pnina Omer | August 4, 2020
The Jewish festival of love falls on Tu Be’av (the 15th day of the Hebrew month of Av), at the height of the traditional wedding season. In ancient times, women would dress in white and go dancing in the vineyards to find a spouse.
And the men? We can’t say for sure what might have happened, but we are wont to imagine that they spotted their potential bride, the two gazed into each other’s eyes, and then he asked for her hand in marriage.
All very romantic.
However, the Mishna, in recalling this interaction, adds a warning to the groom: “Young man, lift up your eyes and see what you choose for yourself. Do not set your eyes on beauty but rather, set your eyes on the family.”
The message is clear: Dancing women in white certainly makes for a fine fairy tale, but you need to appreciate that marriage is not just about romance or even love; it’s about a lifelong commitment that comes with many other things in between.
There’s a saying that – although a bit uncomfortable – deserves to be heard more among marrying couples: “It isn’t enough to just know who to marry. You also need to know who to divorce.”
The reality of couplehood is, unfortunately, that things don’t always work out.
And appreciating that reality, we need to go into marital commitment with the promise that we will know how to get out of it with minimal injury to either side, mutual respect, and while agreeing never to forcibly tie one another to a relationship that is unwanted or inviable.
As ironic as it might seem, nothing could be more romantic than a promise that at any given moment of our life together, we know we are together of our own free will, and that we would be able to separate of our own free will.
It’s important to remember that while weddings are about fun and flowers, music and dancing, marriage is at its essence a formal contract between two parties. Our rabbis already understood the importance of mutual commitments in marriage some 2,000 years ago. That’s why they drew up the ketuba, a marriage contract that guarantees not only income, intimate relations and alimony, but also includes protections for the woman in the event of death or divorce.
Through the legal tool generally referred to as the “prenuptial agreement,” the ketuba can be expanded to include protection from a challenge that is becoming increasingly prevalent in our modern world: All too often, both men and women are guilty of misuse of the Jewish bill of divorcement or get (known as get-refusal), holding their spouse hostage in order to torment and bully them, or otherwise improve their bargaining position in the divorce proceedings.
Get-Refusal is nothing less than a disgrace. Although it is not forbidden by Halacha (Jewish law), we have a moral and religious obligation to prevent it, which is why the concept of the pre-nup was drawn up. We have the right and obligation to ensure that the couple is protected, especially when it can be done without putting a damper on romance or violating Halacha.
This agreement is signed by both partners, usually before the wedding (but can technically be signed any time after as well), and includes a halachic mechanism to protect from get-refusal and to prevent situations in which one partner is forced to remain in a relationship from which they want to escape.
A positive aspect of this agreement is that it guarantees that both sides are invested in staying in the marriage. If the marriage fails, the couple has agreed ahead of time that if their attempts at reconciliation are unsuccessful and one of them insists on a divorce, the other will comply. A predetermined (large) sum is defined as alimony to be paid by whichever spouse does not comply, or if he or she delays the divorce proceedings. This sum makes refusal an expensive move that does not pay.
However, the agreement’s main significance is in the fact that all parties know that it is there. It overshadows the divorce proceedings and prevents any thought of abusing the get for extortion or threats.
We know that there will always be malicious people and circumstances, and prenuptial agreements will not solve all the problems of get-refusal and agunot (women “chained” to marriage) in the Jewish world. But they will prevent hundreds, or even thousands, of divorces from heading down a collision course and steer them back to a respectful separation.
The notion of modern love must be built with the recognition that not all marriages can be saved, nor should they all be. But basic dignity requires that we do whatever possible to ensure that even if the marriage fails, it need not mean we can’t save the divorce.
A personal final word: Even if you are not convinced to sign the prenuptial agreement, if you are sure “it won’t happen to us,” or think it is completely unromantic, please, even if you won’t do it for yourselves, do it for the greater community by sending the message that this is a concept that deserves to be widely embraced.
From my considerable experience, I can tell you that the prenuptial agreement will save someone you know, or at least someone who knows someone you know, from get-refusal and help them gain their freedom. Help us change the social norms in order to help people marry wisely, so that when necessary, marriages can be respectfully dissolved.
The writer is the director of Yad La’isha: the Monica Dennis Goldberg Legal Aid Center and Hotline for Agunot, part of the international Ohr Torah Stone network.