The plight of agunot: The pen vs the chains

As halachic prenuptial agreements pick up speed in Israel – and Tzohar publishes its own version – many disagreements remain among activists.

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October 4, 2015 12:46
 ‘Gett: The Trial of Viviane Amsalem.’

A scene from ‘Gett: The Trial of Viviane Amsalem.’. (photo credit: COURTESY MUSIC BOX FILMS)

Though she’s happily married with three children, Shira Zwebner still regrets not signing a halachic prenup at her wedding.

She got married eight years ago in the US, and her husband’s family rabbi flew in from Jerusalem to perform the ceremony. Despite her mother’s demand that she sign one – even begging her to call off the wedding without one – the officiating rabbi was dead set against it. Zwebner reluctantly opted to “not rock the boat” by signing a halachic prenup, an agreement designed to prevent agunot – women “chained” to marriage because their husbands refuse to provide them with a get, a halachic writ of divorce.

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“He basically said that you should not enter a marriage if you’re even considering and thinking about divorce,” she told The Jerusalem Post last month. And, she recalls him saying, “having a halachic prenup is thinking about divorce.”

Looking back, however, “I’m very upset that I didn’t push it,” she said. “Now that I’ve been living in Israel eight years, had it happened today, there was no way I would have gotten married without it.”

She and her husband have discussed signing a postnuptial agreement, which has much the same effect, but simply haven’t gotten around to it.

“I want to do it because I think it sends the right message to my children,” she said. “I have two daughters and a son, and I want them all to have one; it’s very important for me.”

More and more Jewish couples – in Israel and abroad – are signing halachic prenuptial agreements. Not all the documents are the same, but most impose ongoing financial penalties on a man who refuses to give his wife a get until he acquiesces. In Jewish law, when the man refuses, the woman has no recourse to obtain a halachic divorce, and will not be able to remarry.

THE PLIGHT of agunot has gained traction in the Orthodox world as of late – and even in popular culture.

The 2014 film Gett: The Trial of Viviane Amsalem won international acclaim, and was even nominated for a Golden Globe Award.

In the US, the most common and widespread agreement is the prenup from the Beth Din of America – the judicial arm of the Rabbinical Council of America.

The RCA, in fact, heavily pushes its member rabbis – more than 1,000 Orthodox spiritual leaders across the country – to impress upon couples the importance of signing the agreement. In 2006, the RCA passed a resolution declaring “that no rabbi should officiate at a wedding where a proper prenuptial agreement on get has not been executed.”

It is unclear, however, how much the resolution is enforced. In 2013 the RCA pledged to “investigate in great detail all aspects of usage and attitudes… to precisely determine the reasons, both halachic and otherwise, for some members’ hesitation to use such agreements.” And in 2014 it announced that “80% of RCA rabbis officiating at a wedding require or strongly advocate the signing of the Halachic Prenuptial Agreement.”

The London Beth Din in the UK offers its own halachic prenup. It is not widely publicized.

IN ISRAEL, however, the story is completely different.

For years the Chief Rabbinate has remained staunchly opposed to any such agreements. Even prominent national-religious rabbis have spoken out against efforts to persuade couples to sign such documents.

Much of the objection is centered around the fear that a divorce granted after such financial sanctions were imposed would be considered a get me’usa, a coerced divorce, which is invalid. The concern is that if she later remarries, children from her second marriage would be considered mamzerim – children born of adultery with a lower halachic status.

Rabbi Moshe Sternbach, head of the Eda Haredit’s rabbinic court, said such agreements would lead to a great many more divorces in Israel and “undermine matrimony in Israel.” He said signing such documents would “destroy family life,” since women can force their husbands to divorce in cases where they otherwise would have remained married.

Prominent national-religious Rabbi Shlomo Aviner called such agreements “empty proposals” that “throw sand in the eyes of the institution of marriage. Aviner, rosh yeshiva of Ateret Cohanim in Jerusalem, added that the documents “undermine family life and harm women’s rights and status.”

Despite this, the movement in Israel gained a significant boost earlier this year, when Tzohar – a national- religious rabbinical organization that seeks to challenge the Chief Rabbinate’s monopoly on religious life in Israel – announced its own version of a halachic prenuptial agreement, called Heskem Me’ahava (Agreement from Love).

Jerusalem Chief Rabbi Arye Stern has expressed support for the idea of halachic prenups and for Tzohar’s draft in particular, though he has noted the reluctance of the Chief Rabbinate to do so.

In the last Knesset, a joint committee was established with representatives from the Religious Services and Justice ministries, the Prime Minister’s Office, the Chief Rabbinate, and the rabbinical courts to reach a consensus on the issue. Since the 19th Knesset was dissolved, the issue has not returned to the forefront.

Tzohar’s document, which it drafted in coordination with the Israel Bar Association, is based on the financial penalty method. The agreement stipulates that a couple seeking a divorce has 180 days to try to resolve their differences through counseling. If, after that period, they do not reconcile, and either spouse refuses to grant or accept a divorce, they will be obligated to pay NIS 6,000 a month – or half their salary, whichever is higher – to their partner until the divorce is finalized.

WHILE TZOHAR officially announced its initiative six months ago, the concept is not a new one to Israel.

For decades different versions have circulated, the most prominent being the Heskem L’kavod Hadadi, the Agreement for Mutual Respect, published in 2000 by Rachel Levmore and rabbis Elyashiv Knohl and David Ben-Zazzon.

Levmore is a rabbinical court advocate and the coordinator of the Agunah and Get-Refusal Prevention Project for the International Young Israel Movement in Israel and the Jewish Agency. She is also a member of the Committee for Appointing Rabbinical Judges.

Levmore literally wrote the book on halachic prenups: Spare Your Eyes Tears: Complete Guide to Orthodox Jewish Pre-Nuptial Agreements (Hebrew), published in 2009 by Mosdot Ariel.

That book, Levmore said, “was sent to 1,000 rabbis – all the Tzohar rabbi members at the time, marriage registrars, all the roshei yeshivot of hesder mechinot, midrashot, as well as all the judges in the Family Court, in the Supreme Court, ministers and members of Knesset and professors and university libraries.”

But for nine years before that, the Agreement for Mutual Respect was disseminated “from the bottom up,” she said.

“It was publicized, put up on the Internet and it worked,” she told the Post, noting that couples were able to decide autonomously if they wanted to sign it, and many did.

“We knew that this was completely halachic – we had taken it quietly to two dayanim [judges] in the Supreme Rabbinical Court,” Levmore said. But she and her two co-authors knew that, at least back in 2000, Israel’s most prominent rabbis “are inherently conservative with a small ‘c,’ and they wouldn’t relate to the question from a pure halachic stance.”

At the time, Levmore recalls, she said she knew – somewhat presciently – that it would take 15 years “to make its way into the rabbinic establishment, that it will recognize and do something about it – and I was right.”

So the effort continued for years as a grassroots project; Levmore lectured widely “in any venue, all over the world,” to spread awareness.

“Young people started signing it, and as a result they started talking to their rabbis who were organizing their weddings,” she said. “At first the Israeli rabbis were extremely... – “reticent” is a mild word, because they didn’t understand anything about it, and they didn’t know anything about it.”

The tide started to turn, she said, as her book gained a wider audience, and more couples were bringing along prenuptial agreements to their rabbis.

In 2009, Tzohar embarked on the journey to create its own document.

“Many, many Tzohar rabbis were signing couples on the Heskem L’kavod Hadadi,” Levmore said. “But Tzohar is an organization that is not only concerned with solving problems like this – they’re also concerned with it having the imprimatur of rabbinical approval. They said it out loud – that they wanted to design an agreement which would get the approbation of the dayanim, the rabbinical court judges.”

SARAH LAVIN, a Jerusalemite who got married last summer, said she was surprised when the Tzohar rabbi she and her husband met with ahead of their wedding didn’t suggest a halachic prenup.

“We thought they would say something about it, and they never did,” she said. “We had to ask about it.” And the response they got was: “Oh, we’re not sure; we’ll look in the computer,” Lavin recalled.

Lavin, a New Jersey native, assumed the halachic prenup would be a more common thing in Israel.

“We both knew it was important to us, we just didn’t know very much about it,” she said. “You would think it would be something that would be more on the table, especially considering [we dealt with] Tzohar… but it was never really presented to us; we had to really chase it down.”

But Lavin and her now-husband, Shai Abelman, persisted in their search and ended up signing a version from the Kolech Religious Women’s Forum, which they located online.

Today, according to Tzohar, its rabbis will suggest that every couple that approaches them sign a halachic prenup.

Though it first announced its prenup in March, it started presenting it to couples only a few months ago, said Rabbi Uriel Ganzel, director of Tzohar’s legislative branch.

“It took longer than we thought on every level,” said Ganzel, who worked on the agreement over its six-year drafting process. “It’s very difficult to convince people to sign something like this, which is why there were so many different ideas on how to approach this.... We took some time to go through internal training within Tzohar to decide how to present this.”

The agreement took six years to draft, Ganzel said, because “there was an attempt to build a consensus between rabbis and judges and officials, and the many different opinions suggested.” Though previous agreements existed, “the goal of the new agreement is to draw legal and halachic conclusions from all the existing agreements, and to try and find the common ground and address the criticisms of some of the earlier agreements.”

Ganzel lamented the fact that, despite the input of many religious court judges and rabbinate members, none would publicly support the agreement.

“There’s an element of fear,” he said.

Now, every couple that gets married with any Tzohar rabbi – about 4,500 a year – will be recommended to sign the prenup.

“We don’t force them to do it, but we try to explain to them how vital and significant it is,” Ganzel said.

Before, he said, only if a couple came to them and requested one, would they have such a discussion.

Esti Schloss Palmer, a New York native now living in Jerusalem, was likely one of the earliest adopters of the Tzohar agreement. She and her husband, who got married in March, downloaded it from the organization’s website before their wedding.

“It was always obvious to me that I would sign [a halachic prenup],” she told the Post. “It was definitely something that I grew up hearing about – probably starting in high school.”

She recalled being taught that “you sign it – not necessarily because you think you’re gonna need it, but because you want to set a precedent... that it becomes a thing that everyone does.”

DESPITE THE prominence and publicity Tzohar has given the halachic prenup, many of those who have worked in the field for years are less than thrilled with it.

Though Levmore worked with rabbis from Tzohar on the draft, she says the final version is “OK, it’s not the best, but it’s OK” and certainly better than the organization’s earlier drafts.

When Tzohar announced its agreement, Susan Weiss, executive director of the Center for Women’s Justice, told Haaretz that “if a client came to me, I’d probably recommend a different type of prenuptial agreement. But if the choice is between this and nothing, I’d tell them to sign this.”

Levmore’s primary objection with Tzohar’s document is that it “refers all the issues mentioned in the agreement to an arbitrator, as opposed to a court of law. The arbitrator is not determined at the time the agreement is signed and may prove to be a totally untrained individual when appointed.” This, she said, “leaves a wide opening for a potential get-refuser to resort to manipulation and subterfuge against the unwitting arbitrator and thus add suffering to the victim of get-refusal.”

Batya Kahana-Dror, director of Mavoi Satum (literally: Dead End), an NGO that seeks to help women trapped in marriages, says she was deeply disappointed in Tzohar’s “big, dramatic announcement.” She said the organization’s draft is simply a “downgraded” version of Levmore’s Agreement for Mutual Respect.

“It just isn’t anything new; it simply strengthens the regular halachic marriage, where a woman has an inferior stance to a man, and she’ll always be reliant on him giving her a get,” said Kahana-Dror. “With this approach, we’re putting on a Band-Aid but we’re not solving the inherent – huge – problem.”

Though she credited Tzohar with “a lot of goodwill” in approaching the problem, “at the end of the day they have just strengthened their own organization, to get people to come and sign with them – in my eyes there isn’t any other advantage. If they wanted to make a real breakthrough, they would have to support agreements with conditional kiddushin.”

Prenuptial agreements with conditional kiddushin – marriage sanctification – invalidate a halachic marriage if the stipulations specified in the document are not upheld.

Such an agreement – like the Contract for a Just and Fair Marriage, published by Weiss’s Center for Women’s Justice – declares that if a couple does not live together for 18 months, or if one member of the couple requests a divorce, the marriage can be declared retroactively null and void.

“The other agreements – they’re based on financial sanctions, and they don’t help if the man is very wealthy, or if he disappears, or if he goes crazy,” said Kahana-Dror. “They also don’t fix the unequal nature of marriage – because at the end of the day the woman is still dependent on the get, still coming into the marriage in an inferior position.”

But an agreement that makes the marriage vows conditional, she said, “really equalizes things.”

Kahana-Dror recognizes, however, that this approach is not widely accepted.

“The biggest problem with these versions,” she said, “is that the mainstream rabbis don’t accept them… but I think retrospectively, if a woman [whose husband refuses to give her a get] comes after the fact and she’s signed it, they would accept it.”

Rabbi David Stav, the director of Tzohar, has come out strongly against such agreements, and most mainstream Orthodox rabbis question their halachic nature. They are also resoundingly rejected by the Israeli rabbinical courts.

Still, Kahana-Dror recommends to all couples who approach her – particularly if they’re not getting married through the Chief Rabbinate – to sign a conditional- marriage prenup.

“I think that to get married today according to Halacha without a serious safeguard like the conditional kiddushin is simply a tragedy,” she said. “[It should be] forbidden to do so.... We had a young woman come to us – her husband was hurt in a car accident, and he’s in a coma, and she’s stuck. We don’t know what could happen during married life, and Halacha has no solution.”

While Levmore realizes the Agreement for Mutual Respect doesn’t solve 100 percent of aguna problems, she sees it as the best current solution.

“What the Heskem L’kavod Hadadi does is that it brings the couple to communicate,” she said. “If you get married in Israel without a prenup and you end up getting divorced, the legal and halachic situation in Israel encourages strife and encourages lack of communication.”

But with the Agreement for Mutual Respect, she said, couples are required to “talk to each other – one process is through marital therapy and the other is an impending negative monetary incentive. It makes the couple talk to each other and negotiate either a dignified divorce or a reconciliation.” 

The Agreement for Mutual Respect is available in five languages at iyim.org.il/prenup/ The Tzohar Agreement from Love is available in Hebrew at tzohar.org.il/heskemeahava/ The Contract for a Just and Fair Marriage is available in Hebrew and English at cwj.org.il/prenup/


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