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Women's rights group pushes halachic pre-nup
By JEREMY SHARON
06/07/2012
Says that using private rabbinical court instead of a state one even more effective solution to avoid "agunah" scenario.
 
A women’s rights group in the vanguard of the struggle to help Jewish women whose husbands refuse to give them a bill of divorce has opened up a new front in its battle.

The Mavoi Satum organization is promoting a new “Sign and Wed” scheme, which advocates for couples to sign halachic prenuptial agreements designed to prevent one of the partners from refusing to give or accept a bill of divorce, or get. Under traditional Jewish law, a woman who wants a divorce from her husband must be given a get from him.

The organization, whose name means “dead-end,” conducted a seminar for young adults on the issue on Wednesday night at the Hebrew University in Jerusalem to promote the program, during which rabbis, lawyers and activists gave lectures addressing aspects of civil and Jewish law on prenuptial agreements.

Mavoi Satum director Batya Kehana said that marriage without such an agreement “removes all control a woman has over herself, which is why we are encouraging women to take responsibility and protect themselves.”

The Agreement for Mutual Respect was drafted by rabbi of Kfar Etzion Elyashiv Knohl, Rabbi David Ben Zazon of Kibbutz Ein Tzurim, and Dr. Rachel Levmore, a legal advocate in the rabbinical courts system.

In Jewish law, a woman must obtain the bill of divorce from her husband before she is able to marry again. According to women’s rights groups, there are several thousand open cases of men refusing to give their wives a get, using it as a tool to extort more favorable terms in the divorce settlement.

A woman may refuse to accept a get from her husband, thereby preventing completion of the divorce, but a man is halachically permitted to live with another woman and have children in such a situation, whereas a woman cannot.

Mavoi Satum is promoting what it calls the “Agreement for Mutual Respect,” a document which, if the couple signs, legally obligates a partner to pay $1,500 a month or half his or her salary, until he gives or she accepts a get. The penalty terms would begin six months after one party requests the request for divorce.

Shani and Avi, a newlywed couple who got married on Sunday, spoke with The Jerusalem Post on Wednesday about their decision to use a halachic pre-nuptial agreement.

“The issue of ‘agunot’ is very worrying and threatening,” said Shani, using the Hebrew word for a Jewish woman who is “chained” to her husband since he refuses to grant her a divorce. “I didn’t want to marry in a religious ceremony at all, but because my husband’s parents would not attend a non-Orthodox service I agreed to it.

“But I wanted something to give me security, and a way to give me control over myself within a religious marriage, which in general, women completely lack.”

Avi said that although he personally felt that the agreement was unnecessary, as he would never use a get as a tool in divorce proceedings, in principle he agreed with the idea.

Speaking with the Post, Rabbi Shlomo Daichovsky, director of the rabbinical courts system, said that if done correctly and according to Halacha then the use of prenuptial agreements, such as those advocated by Mavoi Satum, could be an effective tool in reducing the number of new cases of agunot.

Daichovsky is however considered a moderate on this and other similar issues, and he acknowledged that while some rabbinical courts are open to implementing such agreements, others reject them since many rabbis consider them to be problematic within the strictures of Jewish law.

According to Halacha, the husband must give the bill of divorce must be given willingly for it to be valid. If he grants it under duress then the get is invalid and the couple is not considered divorced.

Any subsequent children the woman would have without a valid get would be categorized as mamzerim, and unable to marry any other Jew apart from those with the same status.

Some rabbis consider the implementation of the terms of a prenuptial agreement constitutes coercion, thereby invalidating a divorce obtained in this way.

In addition to these complications, almost all Orthodox rabbis, according to the group, outrightly reject the stipulation in Mavoi Satum’s pre-nuptual agreement that civil family courts and not rabbinical courts deal with issues of child custody and division of assets. A senior official in the rabbinical courts system could not confirm this claim.

Mavoi Satum insists on the use of family courts because women’s rights advocates claim that rabbinical courts do not protect the rights of women in these matters, and so the benefit of the financial penalties clause could be obviated if the civil courts do not deal with these issues. The type of court – civil or rabbinical – that deals with these issues is determined by where one of the parties files the case first.

For this reason the organization is going one step further than the Sign and Wed program, and advocates circumventing the rabbinate marriage system altogether, by advising couples to marry privately, without registering with the rabbinate.

In so doing, couples can then utilize what is known as conditional marriage, in which the marriage is conditioned on the willingness, if so requested, of either partner to give or accept a get.

If either partner refuses to permit the divorce, the marriage would be retroactively annulled.

Because couples marrying in this way cannot register with the rabbinate, they would not be considered officially married by the state, despite the fact that they would be considered married under Jewish law, provided that the ceremony was conducted in accordance with Halacha.

The state would recognize their union as a common-law marriage, in which a couple is entitled to almost all the rights enjoyed by those marrying through the rabbinate.

Although Kehana admits that this solution is radical, she insists that it is the best solution to the agunot issue, as women are no longer dependent on receiving a get at all.

The Chief Rabbinate and the rabbinical courts in Israel do not recognize conditional marriage as valid within Jewish law, although Orthodox advocates of the idea insist that the idea is well-founded within Halacha.

The Rackman Center for the Advancement of the Status of Women at Bar-Ilan University held a conference last month on this issue, where Rabbi Michael Broyde, a rabbinic judge of the Beit Din of America spoke about a conditional marriage agreement he has drafted.

However, the national-religious Tzohar rabbinical organization, which provides free marriage services in Israel and takes a generally moderate stance over many issues relating to marriage, is opposed to the use of private rabbinical courts.

Tzohar Chairman Rabbi David Stav told the Post that although the idea of circumventing the rabbinate may sound good, anyone doing so would also have to divorce through a private rabbinical court which do not have the powers the state rabbinical courts have to persuade recalcitrant husbands to grant a bill of divorce.

Stav added that Tzohar has also been working intensively to draft its own halachic prenuptial agreement, which he said was being done with in conjunction with some of the most senior Torah scholars and rabbis in the country.

“If at the end of the day, the rabbinical courts won’t accept a prenuptial agreement then it’s worthless,” he said.

“We hope that the final draft of our agreement will be effective in persuading recalcitrant husbands to grant a ‘get,’ although it may not meet every demand of the women’s rights groups campaigning on this issue. It will be more moderate than that but will be effective without creating the problem of a coerced ‘get.’”

This article has been corrected to say that men can halachically live with another woman even if their wife has not accepted a get, and not necessarily re-marry, as a previous version of the article stated.
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