Agunah Prevention: It’s Time For A New Strategy


Last week I was sitting around a table along with fellow advisory council members of Sanctuary’s Orthodox Matrimonial Project. The goal was to consider how we could improve and expand the great works that Orly Kusher is doing as she helps Orthodox women seeking a divorce to navigate the United States’ civil courts as well as the Jewish court systems. The barriers are many and the added challenges, including communal pressure to remain married or paying for day school tuition as a single parent, stealthily slow down the process.  One of the obvious options to help prevent women from being in this situation, certainly from the standpoint of organizations like JOFA and ORA, is the halachic prenup.

Last summer, JOFA convened an online panel to discuss the merits and challenges of the halachic prenup. The benefits include the civil obligation for the man to show up in court – which is often a hurdle that can lengthen the divorce process to the tune of many months if not years.  While the online discussion was rich, I am confident that the halachic prenup – when signed – could prevent the vast majority of agunot despite the possible limitations. According to the Beit Din of America, the halachic prenup has been 100% effective when employed.

The problem is, that most Orthodox marriages conducted today do not include the signing of the halachic prenup. Most Orthodox couples in America are not signing the prenup because they do not know about it, they question the halachic validity of the prenup, or they fear the stigma. I have heard from a number of couples that they are going to have a great marriage, so a prenup is unnecessary.

The RCA recently stated that all members of the RCA may only marry couples with the halachic prenup. They join the company of the IRF, who adopted this policy soonafter their founding. Nonetheless, Modern Orthodox Jews, which for the purpose of this piece will include Open Orthodox and Centrist Orthodox Jewry, are a small proportion of the Orthodox community. The vast majority of the Orthodox community is Ultra Orthodox and most are not signing the prenup.

The halachic prenup, endorsed by the BDA, RCA and IRF for use in America, was first made available in 1994. It has been over 20 years. As International Agunah Day approaches, perhaps it is time to realize that the current tactics to convince, persuade, and implement the prenup as a normative standard for mainstream Orthodox weddings have failed. We have not been able to get the job done. If everyone had signed the prenup, many of the  women who are agunot today would have been free. Many of the women who are chained in abusive relationships would have been able to move on.

In recent weeks we have spent quite a bit of time talking about semantics as they relate to the titles and platforms that properly recognize women as halachic and spiritual leaders in our community. Everyone is well aware of the importance of language in order to properly market to our communities and create buy in. Perhaps it is time to redirect and channel our efforts towards properly and effectively marketing the halachic prenup to the Orthodox community at large. The term, “halachic prenup,” is not working. Plainly, it is a turn off. It is off putting. It carries a stigma for many of our constituents. It is time to consider better language, packaging, and marketing if we want people to adopt the halachic prenup as the ketuba is without question.

Perhaps the document should be referred to in Hebrew, Aramaic or Yiddish, depending on the community. In Hebrew it is referred to as הסכם כבוד הדדי, the mutual respect agreement. Perhaps the document should be structured as an addendum to the ketuba, rather than as an separate (and therefore optional) document. That way, the document will be seen as part and parcel of the larger marriage contract.

As many of us can attest to, packaging, language, and framing is critical. It is time to acknowledge that if we want to save women from abusive relationships, we need to start speaking the same language of the many who oppose it.