Can prenuptial agreements prevent ‘agunot’?
Considerable effort has been made to relieve the modern problem of Agunot.
Solving the agunah problem Photo: Mavoi Satum
Over the past several decades, considerable effort has been made to relieve the
modern problem of igun, in which one member of a divorcing couple (usually, but
not always, the woman) may not remarry because his or her recalcitrant spouse
refuses to divorce. This article will focus on the most promising solution: a
prenuptial agreement to mandate continued financial support by the recalcitrant
spouse, as proposed in the arbitration agreement of the Beth Din of America
(theprenup.org) and the “Agreement for Mutual Respect” employed in Israel
The ketuba (marriage contract), which
is still used today, was the first prenuptial agreement enacted to ensure an
appropriate divorce settlement.
This contract, which obligates the
husband to provide a financial package upon divorce, ensured basic financial
sustenance to the wife.
However, the financial arrangements of a ketuba,
as declared in its standard formulation, were largely neutralized because of an
important medieval development.
According to talmudic law, a man had the
power to divorce a wife against her will and was also entitled to take multiple
wives. Around the year 1000, Rabbeinu Gershom decreed that both polygamy and
divorcing a woman against her will were prohibited. Over the centuries these
decrees became universally adopted so that a man was only permitted to override
the polygamy ban in limited circumstances following the written consent of 100
rabbis (heter mea rabbanim).
Accordingly, a divorce document forced upon
either side (get me’useh) is deemed void except in rare cases when talmudic law
allows a court to administer coercive measures until the recalcitrant spouse
declares a desire to issue a get (halachic divorce).
As such, the
economic premise of the ketuba was vacated since Halacha demanded mutual consent
for divorce – which presumably would not occur without each side consenting to
the financial settlement. For this reason, Rabbi Moshe Isserles postured that a
ketuba remains unnecessary, and while Jewish law continues to require the
signing of this contract, its real-world monetary value is frequently left
undetermined since it has minimal practical impact.
The now well-known
problem of recalcitrant spouses emerged in the modern era with the advent of
civil divorce, the stripping of punitive powers from ecumenical courts in the
Diaspora, and rising divorce rates. Most commonly, a couple will divorce in
civil law but the husband will refuse to issue a get until he receives favorable
financial or custody arrangements, thereby preventing the woman from remarrying.
(Because of the potential use of heter mea rabbanim following a civil divorce,
the phenomenon of recalcitrant women occurs much less frequently.) Medieval
scholars debated whether financial penalties could be imposed on a husband to
give him an incentive to issue a get. While some permitted this measure since
the husband would ultimately consent of his own accord, others worried that
imposing a fine constitutes illicit coercion, even as such a divorce would
remain valid post-facto. To circumvent this disagreement, Rabbi Mordechai Willig
drafted a prenuptial agreement in the 1980s, largely based on a formulation
found in a 17th-century compendium of marriage documents, which removed any
reference to compelling divorce or financial penalties.
Instead, at the
time of marriage, the husband accepts upon himself to continue to provide
appropriate financial support (mezonot) if the wife moves out of the house, as
long as the couple remains halachically married. This agreement is consistent
with the husband’s obligation to support his wife upon marriage and creates no
problem of coercion when he agrees to grant a get, since it is analogous to a
prosaic case in which a husband decides to get divorced simply because he no
longer wants to support his wife.
Because the Beit Din (religious court)
serves as a recognized court of arbitration, the financial provisions of this
agreement may be further enforced in secular courts. This agreement, which has
proven itself to successfully prevent cases of agunot, received approval – at
least for use in America – from leading scholars, including Rabbis Ovadia Yosef,
Zalman Goldberg, Asher Weiss, Gedalia Schwartz, Herschel Schachter and Chaim
Within Israel, rabbinical courts have the exclusive right to
issue divorce documents and may coerce recalcitrant husbands (when halachically
mandated) by revoking passports or professional licenses and through
imprisonment. For various (and disputed) reasons, including the allegedly slow
process to impose coercive measures, these powers have not succeeded in
eliminating cases of agunot.
To address this problem, the prenuptial
“Agreement for Mutual Respect” obligates, under Halacha and general Israeli law,
a recalcitrant spouse to pay additional support payments once the other spouse
has initiated the divorce process and efforts toward marital reconciliation (if
so desired) have failed. While it invokes the same halachic mechanism as the
American prenup, it has not yet garnered the same widespread support, in part
because some fear it undermines the rabbinical court system by providing a
halachically acceptable incentive via civil law for the recalcitrant spouse to
agree to the divorce. Its advocates, however, believe that it represents the
best opportunity, under the current circumstances, to prevent the suffering of
an aguna and the concurrent desecration of the Torah’s reputation.
writer, online editor of Tradition, teaches at Yeshivat Hakotel and directs the
Tikvah Israel Seminars for Post-High School Students. facebook.com/shlomo.brody