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Orthodox Rabbis Adopt Resolution Making Prenuptial Pacts Mandatory

After a decade of debate and negotiation, a leading group of Orthodox rabbis has approved steps designed to resolve the problem of people trapped in marriages because their spouses refuse to grant them a divorce.

Because under Jewish law it is the man who must issue the religious divorce, the trapped partner is nearly always the woman.

The Rabbinical Council of America, an organization of 1,000 Orthodox rabbis, unanimously approved a resolution requiring the use of prenuptial agreements in all marriage ceremonies. The resolution also called for synagogues to ostracize recalcitrant spouses.

The measure was welcomed by activists who work on behalf of agunot, women unable to obtain a Jewish divorce, or get, from their husbands. Still, they said, there is more work to be done before the problem is fully rectified by the rabbis.

Prenuptial agreements between Torah-observant spouses become useful as a motivating tool if the couple becomes estranged and the husband refuses to give his wife a Jewish divorce.

According to Rivka Haut, a founder and director of Agunah Inc., a Brooklyn-based organization which aids women unable to get divorces, there are hundreds, perhaps more than a thousand agunot in the United States.

In Israel, the number of agunot is estimated to be between 5,000 and 16,000.

Precise numbers are impossible to ascertain because the majority of rabbinical courts, or batei din, do not keep computerized records, and none will open their files to groups such as Agunah.

The steps taken by the RCA at its annual convention last week come after several years of fitful stops and starts, when prenuptial agreements deemed acceptable were distributed to RCA members and then quickly recalled after resistance was mounted from within the organization.

The RCA has so far approved one version of the agreement, developed by Rabbi Mordechai Willig. The RCA’s religious court will approve agreements as they are submitted, and then those accepted will be distributed to the organization’s member rabbis.

Willig’s version makes the husband pay a weekly sum to his estranged wife so long as they are separated but not yet divorced according to Jewish law.

ENSURES FINANCIAL SUPPORT

The document has two parts. The first is designed to be an extension of the ketubah, or marriage contract. The engaged man and woman agree to a sum of money that the husband will pay for her support in the event that they separate and until they divorce.

The critical term in the agreement is “support” — “in the manner of Jewish husbands who feed and support their wives loyally.” This term was used rather than calling it a monetary fine, because the latter could call into question the validity of the husband’s motivation for granting the divorce.

According to Jewish law, if rabbis later determined that the husband was under duress to grant a divorce, the get could be invalidated.

The payments agreed to by the engaged couple are tied to the consumer price index. That way, even if they are married 20 years when they split up, for example, the $100 per day agreed to two decades before would be worth the same amount.

The husband-to-be also waives his halachic right to his wife’s earnings during the time they are separated.

However, the agreement is nullified if the wife refuses to appear before a beit din or to abide by its ruling.

The second part of the prenuptial agreement is an agreement by the spouses-to-be to adhere to the arbitration of a beit din.

The convention’s resolution also calls for every RCA-led synagogue to impose sanctions on spouses who ignore the mandate of a beit din to appear before it in a divorce proceeding.

The sanctioned individual cannot be a synagogue member or be an official or employee of the shul. He cannot be called to the Torah, and will have his or her name announced monthly after Shabbat services, and published in the synagogue bulletin with a notice requesting members to limit their social and economic interaction with the ostracized individual.

The resolutions were finally passed by the RCA members, according to Rabbi Kenneth Brander, chairman of the convention’s resolutions committee, because “we realize the profound pain that agunot are subjected to and we are committed to finding solutions to this issue through creative structures which do not compromise the primacy of Jewish law.”

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