A Step Forward for Agunot

Big news in the often-turbulent world of Jewish divorce (get) proceedings: For the first time,state law upheld the constitutionality of the Beth Din of America’s (BDA) prenuptial contract.

 

Some background: According to Jewish law, the man initiates the divorce proceedings and gives his wife the get. If he refuses to do so, his wife is “stuck,” unable to remarry. This has led to the much-publicized agunah crisis. Agunot, or chained women, are wives whose husbands refuse to grant them a get.

 

In the past, agunot mainly resulted from husbands disappearing—assaulted by bandits on the road, lost at sea, killed during a war or pogrom. The husband was simply not available to divorce his wife, unless she could find evidence that he had died. While the rabbis would do everything in their power to “unchain” these women, it was not always possible.

 

However, today, the husbands are very much alive and present. Instead of disappearing husbands, we have the modern problem of recalcitrant husbands. Husbands who realize their power as the “divorce granter” and use it to their advantage during divorce proceedings, especially regarding custody and assets, sometimes demanding exorbitant sums of money.

 

By refusing to grant a divorce, the man is essentially holding his wife hostage. Many consider this a form of domestic abuse. Without his consent to give a get, the woman cannot remarry under Jewish law; if she does and has children, they are considered “mamzerim,” or illegitimate.

 

Rabbis have been known to put pressure on husbands to grant the divorce, even excommunicating them, shunning them from the community. But in some ugly cases, the husband does not bow to the pressure and continues to refuse to divorce his wife. Women can be agunot for years, unable to move on with their lives. One well-known case involving Tamar Epstein and Aharon Friedman even made the national news, as protestors rallied and campaigned for Friedman to grant his wife a get.

 

In the 1990s, the Orthodox-affiliated BDA, seeking to combat the problem of agunot, created their own prenuptial agreement. The BDA prenup states that in case of termination of the marriage, the couple agrees that a Jewish court will divorce them. A second part states that the husband has to pay his wife a certain amount for every day he refuses to grant the get.

 

The judge in the Connecticut case maintained that a BDA prenup is just as binding as a regular secular contract. Legal experts say that this is setting a good precedent for future divorces. Court cases are like dominos; once one judge upholds the prenup, it creates a precedent that future judges can rely on.

 

And now that rabbis (and husbands) know that a BDA prenup is enforceable in civil court, rabbis have more leverage in divorce proceedings. The husband knows his chances of winning in court are slim, so may give in easily and earlier in the process.

 

The problem is that not everyone signs a prenup. While many rabbis will not marry a couple if they don’t sign it, not all rabbis require it. But without a prenup, this latest legal victory cannot help. It’s like an elevator that takes you from the 2nd floor to the roof—it’s great, but you need the prenup to get you to the 2nd floor.

Rabbis will “stop the presses” at a wedding for a number of halakhic reasons. Everything needs to be in place:

We would never have a wedding without everything being halakhically correct. And it is imperative that we add “prenup” to the list of prerequisites. Rabbis from every stream of Judaism should insist their brides and grooms sign a prenup, no matter what. No prenup, no wedding.

 

Yes, the prenup does not exactly scream “wedded bliss.” It’s an awkward moment, gazing into your true love’s eyes and signing a document stipulating how you would end your marriage. But just take a look around—we all know divorced couples. And I can bet that very few of them thought that their marriage would ever end, either. Making the prenup standard takes some of the discomfort away. You’re not planning for the end of your marriage, you’re just following procedure. And when everyone follows the same rules, we ensure that would-be agunot are taken care of. Most of those prenups will sit in a filing cabinet collecting dust. But some may be needed to help a woman—a relative, friend, or compete stranger—gain her freedom. And that is worth a few moments of awkwardness.