If you’re a person who cares about negative stories involving Orthodox Jews in the news, the recent agunah cases that keep popping up are quite troubling. If you’re a person who cares about people, ALL agunah cases are quite troubling. Since I am both, I have been pretty bummed out lately about how to deal with divorce scandals in the Orthodox Jewish world. As an observant Jew, I believe in living according to halacha, which means following the laws of gittin (Jewish divorce) AND preventing bad guys from hurting good guys (as the Torah commands: “Don’t stand idly by your neighbors blood.”).
A husband cannot withhold a get from his wife once a Jewish court has ordered him to give one, but nevertheless, a small number of men do anyway. How do you deal with a recalcitrant husband? The rabbis of old thought it was simple: Beat the you-know-what out of the guy until he does what he’s supposed to do. Since assault doesn’t fit so well into twenty-first century Western thinking (there are some rabbis now sitting in jail who can attest to that fact) we need some other options to free women from their get-withholding husbands.
Some women have taken to social media – which appears to be quite effective, though unfortunately, it creates a lot of negative PR for Orthodox Jews as the nuance behind gittin gets lost on the general public. (Not that I begrudge anyone who does this – it’s just a messy side effect.) Another option is the halachic Prenup. The Prenup is a document which was drafted by Rabbi Mordechai Willig in 1994 in consultation with other halachic and legal experts. It accomplishes two things: it forces the couple to choose a beis din (Jewish court) to get divorced by should the need, God forbid, ever arise. Second, it legally obligates the husband to pay $150 a day to his wife for every day he withholds the get.
The concepts contained in The Prenup are actually very old, dating back to the seventeenth century! In 1664, Rabbi Shmuel Ben David Moshe Halevi, the rabbi of Bamberg, Germany published a compilation of Jewish legal forms called the Nachalas Shiva. One of the forms in that book is a version of the tana’im (a Jewish wedding document) with a provision that is very similar to The Prenup. In a footnote to that provision, the Nachalas Shiva cites some authorities who held that the provision dates back to the Takanos Shum, the authoritative communal enactments adopted in the early Middle Ages by the leaders of the German communities of Speyer, Worms and Mainz.
The financial disincentive delineated in The Prenup is based upon a husband’s obligation according to the ketubah (marriage contract) to provide food, clothing, and shelter to his wife so long as they remain married. So The Prenup tells a husband “if don’t want to give your wife a get, then you must support her as outlined in the ketubah until you terminate the marriage by giving a get.” The Prenup has been endorsed by a number of leading poskim (adjudicators of Jewish law), including Rabbi Zalman Nechemia Goldberg, Rabbi Gedalia Dov Schwartz, Rabbi Ovadia Yosef, and Rabbi Osher Weiss.
I have been trying to get the word out to more people about The Prenup as it seems like the best option that’s out there these days to combat the agunah issue, but I kept hearing pushback. “It’ll never work,” said one rabbi. “It wouldn’t matter to a rich guy,” said another. “He wouldn’t care about paying the fee.” So on a whim, I asked the director of ORA (Organization for Resolution of Agunot) Rabbi Jeremy Stern (since educating the Jewish community about The Prenup is one of the main missions of ORA): “How effective is The Prenup, anyway?”
I was expecting him to say “25% effective” or “40% effective.” But no, he told me “100% effective!*” I was SHOCKED. What do you mean by “effective?” I asked next. He said that in the twenty years since The Prenup has been in use they have yet to see a case where the get is not given unconditionally and in a “timely fashion.”
What’s “timely?” I asked. “Six months or less.” he replied. He then explained that in almost all cases in which the halachic prenup is invoked the case never reaches the civil courts because the husband knows that he would be fighting (and paying for) a losing battle. (Conversely, in the twelve years that ORA has been around, they have seen 500 cases of get refusals from husbands who did not sign The Prenup.)
So how many times has this 100% average been tested by couples who signed The Prenup getting divorced? After speaking to the Beth Din of America, the number is not so easy to calculate. Most of the time, they explained, The Prenup works quietly in the background, providing the incentive for the husband to give the get early in the process even without the necessity of turning to the Beth Din of America to actually enforce the document.
The only statistics they could offer to give insight into the numbers of Prenups in use are the results of a 2009 survey they took of rabbis who are members of the Rabbinical Council of America, the rabbinical group that has been the driving force behind wider acceptance of The Prenup. Of the RCA members who responded to the survey, 33% require the use of a prenup when officiating at a wedding, and an additional 37% encourage the use of a prenup when they officiate even if they don’t require it. They suspect the numbers have moved up since 2009. Based on these numbers, my father (the math person in my family!) and I guessimated that the number of couples who got divorced with The Prenup in the last twenty years is in the low thousands. (Again, no organization has confirmed this, this was just a ballpark we came up with based on what we do know.)
Then I asked Rabbi Stern why The Prenup (in his opinion) is so effective. These were his answers:
1. “As a binding arbitration agreement to the Beth Din of America, it eliminates the forum-shopping between different batei din which is a tremendous source of frustration and game playing when trying to determine where, under what circumstances, and under what conditions, a get is issued. At ORA, we have encountered countless cases where women spend years without a get because the two sides cannot agree on a beit din.”
2. “The enforcement mechanism creates a burdensome financial disincentive for a husband to refuse to give a get. Even for extremely wealthy couples, if they are battling each other in a contentious divorce (in which couples fight over nickels and dimes) then the obligation of paying his wife $55,000 per year will weigh heavily on a recalcitrant husband. I will note here that this financial obligation is above and beyond anything that the wife would otherwise be entitled to in Jewish or civil law. Thus, her waiving her rights to that money in exchange for the get is not extortion, but rather using the agreement to do what it is supposed to do: take the get off the table and ensure that all other contentious issues of the divorce can be addressed on their own terms.”
3. “With a halachic prenup, a woman is able to pressure her husband to give her a get early on in the divorce process, before he becomes entrenched in his stance of get-refusal, and before other contentious divorce matters are settled (when he may try to use the get to reverse settlements or decisions that are not entirely to his liking).”
4. “Putting aside the civilly binding element of the prenup and enforcement mechanism, with a prenup a groom signs his name that he will do the right thing and promptly give a get in the event of a divorce. Few people like to be called liars. Additionally, the psychological commitment that the husband has made at the start of the marriage may impact his attitude with its dissolution.”
5. “The refusal of a prospective groom to sign a halachic prenup can serve as a red flag to a prospective bride of controlling and abusive attitudes which her fiancé possesses. This should alert her to the fact that he may not be someone with whom she should bind herself in matrimony.”
He then noted that at some point in the future they may find that the halachic prenup will not work in every single case. But, so far, it has, and they anticipate that it will work in nearly all cases.
I also asked Rabbi Stern about how The Prenup compares to what they can do in Israel – putting recalcitrant husbands in jail. He said, “Putting someone in jail is obviously an extremely effective measure. That’s how nearly our entire criminal justice system works — we assume that people would prefer not to commit crimes rather than spend time in jail. However, getting to that point of going through an entire criminal case is a long and arduous process, whereas the prenup has ensured 100% of the time that a get is given in a timely fashion. The stories where men rot in jail are very, very, very few and far between. Again, in any judicial system you will have the .00001% of cases that fall through the cracks, the .00001% of people who prefer to sit in jail rather than comply with the law. Even so, I think the prenup could possibly have helped in those cases, since it gets the husband in the door of the beit din very early on in the process, before he becomes entrenched in his recalcitrance and become a sadistic ‘martyr’ for the cause of refusing to give a get.”
Finally, I asked Rabbi Stern about common misconceptions people have about The Prenup. He said, “One common misconception is that the prenup is a penalty against the husband for refusing to give a get. Technically, it is not. Instead, it simply enforces his halachic obligations to support his wife over the course of their marriage, until a get is issued, even if they are separated, thereby creating a severe financial disincentive for get refusal.”
Now that I know how effective The Prenup is, it is so obvious to me that we must ensure that every couple that is married according to halacha signs one. The accusations in the comment sections of these agunah stories are replete with people claiming that Orthodox Jews do not caring about their women. We do care! And because we care we must protect them in the best way that exists. When it comes to Jewish divorce, The Prenup is it.
*Rabbi Stern clarified the following points to me after the article was published. As per Rabbi Stern: “It works 100% of the time when signed properly and a copy is extant. We have seen a few cases where it was either signed improperly (such as under duress, entirely unexpectedly right before the chuppah), or where the couple did not have a copy available. So, like a car with seat belts, yes, seatbelts only work if you have them in your car and buckle up properly. If you don’t buckle up, no matter how many seatbelts you have in your car, it won’t help, just like “having” the prenup doesn’t help if it is signed incorrectly.”
Rabbi Stern further clarified that the 100% statistic is referring to agunahs caused by recalcitrant husbands. If a husband goes missing, the halacha is different and The Prenup cannot help with that. However, rabbis will do whatever they can to try to determine that the husband is dead in order to free the wife, and these cases are extremely, extremely rare.
NOTE: An earlier version of this article stated that a husband cannot withhold a get from his wife according to Jewish law. It was revised to say that a husband cannot withhold a get once a Jewish court has ordered him to give one. It should be noted that neither a husband, no a wife, can unilaterally end a marriage.