Can prenuptial agreements prevent ‘agunot’?

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 (youngisraelrabbis.org.il/prenup).

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 Zimbalist.

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.

The writer, online editor of Tradition, teaches at Yeshivat Hakotel and directs the Tikvah Israel Seminars for Post-High School Students. facebook.com/shlomo.brody