It is inexcusable that many women who want to get divorced are faced with their spouses’ recalcitrance and must sometimes wait for years until they obtain a get (Jewish writ of divorce). The reason for this is that many rabbinical courts are still not willing to use all the methods they have at their disposal to free them from their chains.
As a result, women’s organizations, and lately also certain organizations that include rabbis and academics, are making efforts to find a systemic solution that could solve most of the problems, instead of relying time and time again on case-by-case solutions that are effective in resolving only a certain woman’s situation.
One possible solution is to have conditional marriages; if the condition is redacted appropriately, this measure could free almost every agunah.
Three conferences (in Israel and the US) took place over the past year focusing on the search for a systemic solution. Most participants were Orthodox men and women, including a large number of rabbis, who suggested various solutions including conditional marriages. I.C.A.R.
(The International Coalition for Agunah Rights), that includes a wide range of organizations (27, from secular to National Religious ones, including the Schechter Institute), decided to advance this solution in the coming year, since an absolute majority of member organizations agree that it could be the ultimate systemic solution.
One of the organizations, the Center for Women’s Justice, has been getting couples to sign this kind of document for several years.
The core of a conditional marriage Couples would have to willingly sign a prenuptial agreement in the presence of witnesses (in order for it to have stronger validity it should preferably include the signatures of a rabbinical court) that determines that under certain conditions the marriage is considered retroactively invalid and the couple as two single people who cohabitated. In such a case, their children, if any, would be considered children of single parents and not mamzerim, or children of unions forbidden by Jewish law.
Such conditions have existed since the 15th century, although they were originally suggested as a way to annul marriages when the husband died and the couple had no children. In ancient times, levirate marriages were mandated (i.e., the husband’s brother (or levir in Latin) would marry the widow in order to continue the family line). In time, halitzah (releasing the widow so that she could remarry) was preferred.
However, in certain cases the husband’s brother would not or could not do so (for example if he was an apostate, had disappeared, lost his memory, etc.). In cases in which there was a concern that the brother would not fulfill his duty, the condition would include a clause determining that if the husband died before the couple had children, the betrothal would be retroactively annulled; it would be as though they were never married and hence halitzah would be unnecessary.
Some rabbis proposed, beginning in the early 20th century, that couples should sign a prenuptial conditional marriage agreement to prevent cases in which the wife might become an agunah.
This solution does not require active intervention on the part of rabbinic courts. At most, they will have to ensure that the condition was fulfilled and confirm that the marriage is to be annulled. It is possible that many rabbis oppose this solution precisely for that reason, since their authority would be diminished.
The Committee on Jewish Law and Standards of the Conservative Movement redacted a condition that would retroactively annul a marriage already in 1968. According to that condition, if the husband did not give his wife a get six months after a civil divorce, the Jewish marriage would be annulled. This clause is irrelevant to couples who get married in the State of Israel, therefore the condition in this country should determine that if a couple is separated for a certain period of time (suggestions range between 12 and 18 months), the marriage is annulled.
Such a condition would even cover cases in which the husband cannot give a get for reasons beyond his control, such as being in a vegetative state, and thus living in a hospital or hospice and not under the same roof as his wife.
In my opinion every couple should sign such a prenuptial conditional agreement, to ensure that women do not find themselves in the agunah predicament. Thus, should they decide to start a new chapter in their lives after a failed marriage, they would not be considered adulterers and their children would not be mamzerim according to Jewish law.
This is even more necessary in the State of Israel in two specific circumstances: firstly, when a couple gets married according to Jewish law but does not register it in the Ministry of Interior and the wedding was valid according to Jewish law (a private, non-official, Orthodox ceremony or a wedding performed by a rabbi committed to Jewish law, such as a Masorti rabbi). In such a case, if the marriage should fail there would be no way to enforce a divorce.
Second, when one of the spouses is a convert and the rabbinate does not recognize the conversion (it may be an Orthodox conversion by a rabbi whose authority is not accepted by the rabbinate or a non-Orthodox conversion). In such cases the rabbinate may decide that the marriage is invalid since the converted spouse is not considered Jewish in their opinion. Hence, they may allow a woman who married according to Jewish law to remarry without a get.
I strongly recommend that anyone who performs a marriage ceremony in Israel according to Jewish law, but not through the rabbinate (and especially in the two situations described above), should require that the marriage include a conditional prenuptial agreement. If s/he doesn’t do so, s/he may contribute to adultery and mamzerut within the Jewish people.
The author, a rabbi, is a graduate of the Schechter Rabbinical Seminary, directs the Mishlei Bet Midrash/ academic program at the Bet Midrash and is senior researcher at Schechter’s Center for Women in Jewish Law. Rabbi Villa represents Schechter at I.C.A.R. (International Coalition for Agunah Rights) and is an active member of its steering committee.