Yesterday, Jews all over the world commemorated Ta’anit Esther (the Fast of Esther), the day on which the heroine of the Purim story took her fate and that of her people into her own hands. For the past few years, Ta’anit Esther has also been marked as International Agunah Day – an occasion to remember the plight of those who are “chained” to spouses who refuse to grant them a divorce.
According to halakha (traditional Jewish law) and contemporary Israeli law, a Jewish woman must receive a religious bill of divorce (a get) in order to remarry. In the absence of a get, any child of a future relationship will be a mamzer – loosely translated as “bastard” – and will be stigmatized under Jewish law. A woman can likewise be recalcitrant, but there are numerous loopholes for men that can free them of the consequences of having a recalcitrant wife.
Israeli citizens do not have the luxury of considering the issue of agunot a “religious” or “arcane” problem. All Israelis are required to marry and divorce within a religious framework, so that even the most secular Jew is affected. (Even Israelis who get married in Cyprus must be divorced according to Jewish law if they separate.)
Unfortunately, despite the hard work of various organizations, there has not been a marked improvement in the status of agunot. Rabbis still do not pursue solutions that are possible within halakha, and dayanim (religious judges) continue to claim that the problem is not widespread. The number of agunot is a highly contested issue, with the rabbinate in this country claiming only several hundred in a given year, while some women’s organizations claim several thousand.
While this is disheartening, there is one means for sidestepping the problem that has been recognized by the majority of rabbinic and legal authorities – the signing of a halakhic prenuptial agreement. This preventive measure, taken by both bride and groom, threatens either party with serious monetary consequences if he or she refuses to grant or to receive a get in the event of the marriage’s breakdown. Although this does not provide an answer for women who are currently agunot, it can prevent the problem before it arises.
The “prenup” has been embraced by rabbinical authorities in the United States. In fact, the Rabbinical Council of America, the centrist organization of Orthodox rabbis in North America, insists that none of its members officiate at a wedding unless a proper prenuptial agreement has been signed. Some American rabbis even require couples to state publicly under the huppah that a prenup has been signed.
Several variations of the prenuptial document have been drafted by different religious institutions. One option, the Agreement for Mutual Respect, put forward by the Council of Young Israel Rabbis in Israel, obligates the recalcitrant person, upon being asked for a divorce, to support the spouse with up to half of his/her net income, until it is granted. In this specific agreement, the recalcitrant party can request up to three marital counseling sessions, but after that the agreement goes into effect. The contract, signed prior to the wedding in a rabbinic court, secular court, or even before a general notary, is a legal document that will be enforced by the courts. Perhaps most important, this document has been publicly approved by the director of Israel’s rabbinical courts, Rabbi Eliyahu Ben-Dahan.
Nonetheless, in Israel, this preventive measure, though available, remains largely unused. Some couples balk at signing such a document before their wedding day, saying they are too much in love to sign something they will never need to use. But a great many Israelis are simply not aware that it exists. Sadly, this is because rabbis, teachers and lay leaders do little to actively encourage the signing of the prenuptial agreement. With 9,963 divorces among Jews in 2006 in Israel, the subject is clearly not irrelevant.
Bringing legal considerations into the wedding ceremony is not a foreign concept for traditional Judaism. The ketubah, after all, is a legal document about death and divorce. Similarly, the prenup should be viewed as an insurance policy – a sensible way to be prepared for something you hope and expect will never happen.
It is imperative that the prenuptial agreement become standard procedure in Israel. As more couples sign, social stigma will vanish and it will become a normal part of the marriage ceremony. The rabbinate should actively promote the agreement when a couple goes to register for marriage. Information about the prenup should be part of the curriculum in premarital courses required of men and women, and should be publicized through schools, youth movements and the army. Lawyers who specialize in family law can do much to encourage couples to sign by explaining the agreement’s legal implications.
The prenup is only a partial solution. A deadbeat won’t be affected by the monetary fine. A wealthy, vindictive spouse may not care about it. And to repeat, the document does not alleviate the problem of existing agunot. It does, however, set the tone for a marriage of equality and mutual respect. Moreover, it is the best solution we have at present to prevent future agunot and must therefore be embraced.
In this holiday of nahfoch-hu (topsy- turvy-ness), it is time for Israeli society to take bold steps to prevent the tragedy of future agunot.
Sarah Breger, a 2007-08 Dorot Fellow, is a volunteer with Young Israel Rabbis in Israel.
