Prenuptial Agreement for the Prevention of Get-Refusal
Encyclopedia
Jewish prenuptial agreements have been developed in recent times to keep the Jewish woman from becoming an agunah
in cases where the husband refuses to grant her a get
(Jewish bill of divorce). Without such an agreement, Jewish marriages
cannot be dissolved without the consent and cooperation of both spouses. This new type of prenuptial agreement
makes provisions for the possibility of divorce. By setting up rules prior to the marriage in the form of a monetary contract, both spouses have an interest to negotiate a divorce in a dignified manner and get-refusal is avoided.
(Jewish law) states that in order for a Jewish divorce to be valid, the husband must place a get in his wife's hands out of his own free will (Yebamot, 14:1). If he does not have the intent to divorce his wife, no other party—person or court, can do so in his stead. A Jewish woman chained to her marriage
because of her husband's inability or refusal to grant her a get, is referred to as an agunah. As of late, common usage has coined the term agunah to include a victim of get-refusal.
When discussing the agunah problem, a distinction must be drawn between the classic definition of an agunah and a victim of get-refusal. Halakhically, an agunah is a woman whose husband has disappeared and it is not known whether he is alive or dead. The example used is the passenger on a boat that sank in “waters that have no end” (Babylonian Talmud
, Yebamot, chapter 10). The case of the classic agunah still exists today: The wives of several men who were killed on 9/11 in the World Trade Center
attack were declared agunot. With the help of rabbinical courts, all these cases were resolved and the women were permitted to remarry. A more prevalent problem is that of a husband who is alive and well, but refuses to give his wife a get. A woman in these circumstances is a mesorevet get - a victim of get-refusal.
. It is a “binding arbitration agreement.” The Beth Din, accepted by both bride and groom as an arbitration panel, is legally enabled to render a binding decision in all issues relating to a get. This ensures that all adjudication leading up to the administration of a get is done according to Orthodox halakha, by Rabbinical Judges. The clauses of the prenuptial agreement delineate the rules accepted by the signatories, according to which the Rabbinical Court should rule. There are optional clauses authorizing the court to rule on monetary matters or child custody and related issues. The entire agreement is in keeping with the law of the State where it is signed and can be enforced as a binding arbitration agreement in the State Court.
The heart of the prenuptial agreement is the monetary obligation undertaken by the groom. He obligates himself to support his wife at a particular rate (from the point of separation) as long as they are married according to Jewish law, if the Beth Din renders a decision enforcing this obligation. In essence this means that from the point that his wife asks for a get and the Beth Din recommends that he deliver the get, until he gives the get, the husband is obligated “to support my Wife-to-Be from the date that our domestic residence together shall cease for whatever reasons, at the rate of … in lieu of my Jewish law obligation of support so long as the two of us remain married according to Jewish law….”
The director of the Beth Din of America, Rabbi Yona Reiss
, has repeatedly stated in public arenas (orally and weekly in the NY newspaper The Jewish Press
) that to his knowledge, the "prenuptial agreement is one hundred percent effective. In every case of a couple that had previously signed a prenuptial agreement and later came to divorce, there was a get delivered in a timely fashion."
There are additional prenuptial agreements for the prevention of get-refusal which have been signed in the US. Orthodox Rabbi Moshe Tendler offers an alternate version.
Conservative Judaism
has sought to prevent cases of get-refusal by attaching a clause to the ketuba, as opposed to a separate prenuptial agreement, known as the Lieberman clause
: The parties agree that if there are civil divorce proceedings, then both must appear before a beit din of the Rabbinical Assembly
and of the Jewish Theological Seminary of America
. Rabbi Saul Lieberman
, a professor at the Jewish Theological Seminary, proposed that the clause be added to the ketuba to create a legal remedy through civil courts in case one party fails to cooperate in Jewish divorce proceedings. The Women's League of Conservative Judaism officially endorsed the use of the Lieberman clause in combination with a prenuptial agreement in 2008. However, in practice, women who have been unable to obtain a get have not always been successful in enforcing the Lieberman clause in U.S. state courts, which have jurisdiction in divorce cases. Several state courts have refused to accept cases based on the Lieberman clause because, as it was argued, it violates the constitutional principle of separation of church and state
.
. However, in the Agreement for Mutual Respect the obligation is mutual. Both the bride and the groom obligate themselves to support his or her spouse, the amount ranging from $1500 per month to half his/her monthly net income. The obligation is activated after notification followed by a defined waiting period, if the couple is still married according to halakha. If a spouse is willing to give/accept a get unconditionally at that point, his/her obligation is voided. In this manner only the recalcitrant spouse‘s obligation will remain in effect. Obviously, if a get were administered during the waiting period, neither spouse is obligated to the other. There are additional matters covered by this agreement, such as: If one of the spouses demands marital therapy, the other must comply up to three visits; the community property law of the State of Israel is accepted as halakha for those that sign the agreement.
The Council of Young Israel Rabbis in Israel, in cooperation with Rabbi Yonah Reiss and Rabbi Professor Michael Broyde
, both of the Beth Din of America, translated the Agreement for Mutual Respect into English. A clause is included which assigns jurisdiction to the Beth Din of America in the case where the Agreement for Mutual Respect itself would prove to be unenforceable for any reason in the State of Israel or "in the jurisdiction that the parties reside in at the time that either one of them seeks enforcement of its provisions". Under those circumstances the Agreement for Mutual Respect converts into a binding arbitration agreement with the Beth Din of America assigned as the arbiter. This same agreement has been translated into French and Spanish.
In the United Kingdom, the London Beth Din
offers a prenuptial agreement which is in essence a generic arbitration agreement appointing the London Beth Din as arbiter "in the event of any matrimonial dispute, they will both attend the Court of the Chief Rabbi, the London Beth Din … when required to do so and that they will comply with the instructions of that Beth Din, including co-operation in any mediation recommended, in seeking to resolve all problems arising out of or in connection with their Jewish marriage."
The prenuptial agreement is a form of insurance which is reliable for the common problem of get-refusal, but is not effective in all cases of agunot. Orthodoxy has yet to develop additional solutions which, added all together, would resolve the “agunah problem" in its entirety.
Agunah
Agunah ; literally 'anchored or chained') is a halachic term for a Jewish woman who is "chained" to her marriage. The classic case of this, is a man who has left on a journey, and has not returned, or has gone into battle and is MIA...
in cases where the husband refuses to grant her a get
Get (divorce document)
A is a divorce document, which according to Jewish Law, must be presented by a husband to his wife to effect their divorce. The essential text of the is quite short: "You are hereby permitted to all men," i.e., the wife is no longer a married woman, and the laws of adultery no longer apply...
(Jewish bill of divorce). Without such an agreement, Jewish marriages
Jewish wedding
A Jewish wedding is a wedding ceremony that follows Jewish law and traditions.While wedding ceremonies vary, common features of a Jewish wedding include a ketuba signed by two witnesses, a wedding canopy , a ring owned by the groom that is given to the bride under the canopy, and the breaking of a...
cannot be dissolved without the consent and cooperation of both spouses. This new type of prenuptial agreement
Prenuptial agreement
A prenuptial agreement, antenuptial agreement, or premarital agreement, commonly abbreviated to prenup or prenupt, is a contract entered into prior to marriage, civil union or any other agreement prior to the main agreement by the people intending to marry or contract with each other...
makes provisions for the possibility of divorce. By setting up rules prior to the marriage in the form of a monetary contract, both spouses have an interest to negotiate a divorce in a dignified manner and get-refusal is avoided.
Halakhic background
HalakhaHalakha
Halakha — also transliterated Halocho , or Halacha — is the collective body of Jewish law, including biblical law and later talmudic and rabbinic law, as well as customs and traditions.Judaism classically draws no distinction in its laws between religious and ostensibly non-religious life; Jewish...
(Jewish law) states that in order for a Jewish divorce to be valid, the husband must place a get in his wife's hands out of his own free will (Yebamot, 14:1). If he does not have the intent to divorce his wife, no other party—person or court, can do so in his stead. A Jewish woman chained to her marriage
Marriage
Marriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found...
because of her husband's inability or refusal to grant her a get, is referred to as an agunah. As of late, common usage has coined the term agunah to include a victim of get-refusal.
When discussing the agunah problem, a distinction must be drawn between the classic definition of an agunah and a victim of get-refusal. Halakhically, an agunah is a woman whose husband has disappeared and it is not known whether he is alive or dead. The example used is the passenger on a boat that sank in “waters that have no end” (Babylonian Talmud
Talmud
The Talmud is a central text of mainstream Judaism. It takes the form of a record of rabbinic discussions pertaining to Jewish law, ethics, philosophy, customs and history....
, Yebamot, chapter 10). The case of the classic agunah still exists today: The wives of several men who were killed on 9/11 in the World Trade Center
World Trade Center
The original World Trade Center was a complex with seven buildings featuring landmark twin towers in Lower Manhattan, New York City, United States. The complex opened on April 4, 1973, and was destroyed in 2001 during the September 11 attacks. The site is currently being rebuilt with five new...
attack were declared agunot. With the help of rabbinical courts, all these cases were resolved and the women were permitted to remarry. A more prevalent problem is that of a husband who is alive and well, but refuses to give his wife a get. A woman in these circumstances is a mesorevet get - a victim of get-refusal.
Historical background
The problem of get-refusal became more widespread when Jews lived in countries where civil divorce was available, separate from religious divorce. The earliest prenuptial agreement for the prevention of get-refusal was developed and accepted by the Rabbinical Council of Morocco on December 16, 1953 ("Sefer Hatakanot", Vol. 1, The Institute for Moroccan Jewish Tradition, Jerusalem). The prenuptial agreement gained further approbation in 1981 from Rabbi Shalom Messas, chief rabbi of Jerusalem ("Sefer Tevuot Shemesh", Jerusalem 1981). Following Rabbi Messas' involvement, the Rabbinical Council of America actively pursued this issue (“The RCA Commission: Solving the Problem of Gittin", Hamevaser, Vol. 22 No. 2, October 27, 1983). The latest in a series of RCA resolutions -- "that since there is a significant agunah problem in America and throughout the Jewish world, no rabbi should officiate at a wedding where a proper prenuptial agreement on get has not been executed” -- was passed on May 18, 2006.Prenuptial agreements as a preventive solution
In the United States, the most prominent prenuptial agreement for the prevention of get-refusal signed within the Orthodox Jewish community is the agreement of the Beth Din of AmericaBeth Din of America
The Beth Din of America is a Beth Din which serves Jews throughout the United States of America.It was founded in 1960 and reconstituted in 1994. The focus of Beth Din of America is on areas of family law, Jewish divorce and personal status, as well as adjudication of financial disputes...
. It is a “binding arbitration agreement.” The Beth Din, accepted by both bride and groom as an arbitration panel, is legally enabled to render a binding decision in all issues relating to a get. This ensures that all adjudication leading up to the administration of a get is done according to Orthodox halakha, by Rabbinical Judges. The clauses of the prenuptial agreement delineate the rules accepted by the signatories, according to which the Rabbinical Court should rule. There are optional clauses authorizing the court to rule on monetary matters or child custody and related issues. The entire agreement is in keeping with the law of the State where it is signed and can be enforced as a binding arbitration agreement in the State Court.
The heart of the prenuptial agreement is the monetary obligation undertaken by the groom. He obligates himself to support his wife at a particular rate (from the point of separation) as long as they are married according to Jewish law, if the Beth Din renders a decision enforcing this obligation. In essence this means that from the point that his wife asks for a get and the Beth Din recommends that he deliver the get, until he gives the get, the husband is obligated “to support my Wife-to-Be from the date that our domestic residence together shall cease for whatever reasons, at the rate of … in lieu of my Jewish law obligation of support so long as the two of us remain married according to Jewish law….”
The director of the Beth Din of America, Rabbi Yona Reiss
Yona Reiss
Yona Reiss is an American rabbi, noted Torah scholar, attorney, and jurist, and the current Max and Marion Grill Dean of Rabbi Isaac Elchanan Theological Seminary , which is Yeshiva University's most important yeshiva component, and serves as a preeminent seminary for the training of Orthodox...
, has repeatedly stated in public arenas (orally and weekly in the NY newspaper The Jewish Press
The Jewish Press
The Jewish Press is an American weekly newspaper, geared toward the Modern Orthodox Jewish community. It describes itself as "America's Largest Independent Jewish Weekly." The newspaper has a politically conservative viewpoint and editorial policy....
) that to his knowledge, the "prenuptial agreement is one hundred percent effective. In every case of a couple that had previously signed a prenuptial agreement and later came to divorce, there was a get delivered in a timely fashion."
There are additional prenuptial agreements for the prevention of get-refusal which have been signed in the US. Orthodox Rabbi Moshe Tendler offers an alternate version.
Conservative Judaism
Conservative Judaism
Conservative Judaism is a modern stream of Judaism that arose out of intellectual currents in Germany in the mid-19th century and took institutional form in the United States in the early 1900s.Conservative Judaism has its roots in the school of thought known as Positive-Historical Judaism,...
has sought to prevent cases of get-refusal by attaching a clause to the ketuba, as opposed to a separate prenuptial agreement, known as the Lieberman clause
Lieberman clause
The Lieberman clause is a clause included in a ketubah, a Jewish wedding document, created by and named after Talmudic scholar and Jewish Theological Seminary of America professor Saul Lieberman, that stipulates that divorce will be adjudicated by a modern Bet Din in order to prevent the problem...
: The parties agree that if there are civil divorce proceedings, then both must appear before a beit din of the Rabbinical Assembly
Rabbinical Assembly
The Rabbinical Assembly is the international association of Conservative rabbis. The RA was founded in 1901 to shape the ideology, programs, and practices of the Conservative movement. It publishes prayerbooks and books of Jewish interest, and oversees the work of the Committee on Jewish Law and...
and of the Jewish Theological Seminary of America
Jewish Theological Seminary of America
The Jewish Theological Seminary of America is one of the academic and spiritual centers of Conservative Judaism, and a major center for academic scholarship in Jewish studies.JTS operates five schools: Albert A...
. Rabbi Saul Lieberman
Saul Lieberman
Saul Lieberman , also known as Rabbi Shaul Lieberman or The Gra"sh , was a rabbi and a scholar of Talmud...
, a professor at the Jewish Theological Seminary, proposed that the clause be added to the ketuba to create a legal remedy through civil courts in case one party fails to cooperate in Jewish divorce proceedings. The Women's League of Conservative Judaism officially endorsed the use of the Lieberman clause in combination with a prenuptial agreement in 2008. However, in practice, women who have been unable to obtain a get have not always been successful in enforcing the Lieberman clause in U.S. state courts, which have jurisdiction in divorce cases. Several state courts have refused to accept cases based on the Lieberman clause because, as it was argued, it violates the constitutional principle of separation of church and state
Separation of church and state
The concept of the separation of church and state refers to the distance in the relationship between organized religion and the nation state....
.
Heskem L’Kavod Hadadi
A different agreement developed in Israel in Hebrew, called the Heskem L’Kavod Hadadi—the Agreement for Mutual Respect , was authored by a team of two rabbis and a rabbinical court advocate— David Ben Zazon, Elyashiv Knohl and Rachel Levmore [ in consultation with experts in various fields (Jewish law, Rabbinic courts, family law, women’s organizations, psychology). This particular agreement is recommended by concerned organizations, rabbinic as well as feminist, including the director of the Israeli rabbinical courts, Rabbi Eliyahu Ben-Dahan. The prenuptial agreement essentially works on a similar principle of spousal support in the case of recalcitrance as that of the Beth Din of AmericaBeth Din of America
The Beth Din of America is a Beth Din which serves Jews throughout the United States of America.It was founded in 1960 and reconstituted in 1994. The focus of Beth Din of America is on areas of family law, Jewish divorce and personal status, as well as adjudication of financial disputes...
. However, in the Agreement for Mutual Respect the obligation is mutual. Both the bride and the groom obligate themselves to support his or her spouse, the amount ranging from $1500 per month to half his/her monthly net income. The obligation is activated after notification followed by a defined waiting period, if the couple is still married according to halakha. If a spouse is willing to give/accept a get unconditionally at that point, his/her obligation is voided. In this manner only the recalcitrant spouse‘s obligation will remain in effect. Obviously, if a get were administered during the waiting period, neither spouse is obligated to the other. There are additional matters covered by this agreement, such as: If one of the spouses demands marital therapy, the other must comply up to three visits; the community property law of the State of Israel is accepted as halakha for those that sign the agreement.
The Council of Young Israel Rabbis in Israel, in cooperation with Rabbi Yonah Reiss and Rabbi Professor Michael Broyde
Michael Broyde
Michael J. Broyde is a professor of law and the academic director of the Law and Religion Program at Emory University. He is also a senior fellow in the Center for the Study of Law and Religion at Emory University. His primary areas of interest are law and religion, Jewish law and ethics, and...
, both of the Beth Din of America, translated the Agreement for Mutual Respect into English. A clause is included which assigns jurisdiction to the Beth Din of America in the case where the Agreement for Mutual Respect itself would prove to be unenforceable for any reason in the State of Israel or "in the jurisdiction that the parties reside in at the time that either one of them seeks enforcement of its provisions". Under those circumstances the Agreement for Mutual Respect converts into a binding arbitration agreement with the Beth Din of America assigned as the arbiter. This same agreement has been translated into French and Spanish.
In the United Kingdom, the London Beth Din
London Beth Din
The London Beth Din is the Ashkenazi Beth Din of the United Synagogue, the largest Ashkenazi synagogal body in London, England. In its capacity as Court of the Chief Rabbi, it is historically the supreme halakhic Authority for Mitnagdim Ashkenazim several Commonwealth countries and additionally is...
offers a prenuptial agreement which is in essence a generic arbitration agreement appointing the London Beth Din as arbiter "in the event of any matrimonial dispute, they will both attend the Court of the Chief Rabbi, the London Beth Din … when required to do so and that they will comply with the instructions of that Beth Din, including co-operation in any mediation recommended, in seeking to resolve all problems arising out of or in connection with their Jewish marriage."
The prenuptial agreement is a form of insurance which is reliable for the common problem of get-refusal, but is not effective in all cases of agunot. Orthodoxy has yet to develop additional solutions which, added all together, would resolve the “agunah problem" in its entirety.
International and Israel
- Council of Young Israel Rabbis in Israel
- ICAR (International Coalition For Agunah Rights)
- Center for Women's Justice