Woman writes halachic treatise on prenuptial agreements that she hopes will prevent thousands of 'aguna' cases

Halachic book on prenups seeks to prevent thousands of 'aguna' cases.

By MATTHEW WAGNER
August 19, 2009 22:21
Woman writes halachic treatise on prenuptial agreements that she hopes will prevent thousands of 'aguna' cases

rachel levmore 248.88. (photo credit: )

The plight of agunot - women "chained" in failed marriages - is in Rachel Levmore's bones. That's why she wrote a book on prenuptial agreements, which she believes could help prevent such cases. "Here in Israel, where most rabbis tend to be so cloistered, it is not a coincidence that a woman had to write this book," said Levmore, a rabbinic court advocate, who pointed out that hers is the first Hebrew-language halachic treatise on the subject of prenuptial agreements. "Only a woman could have the drive to devote so much energy, because only women are so deeply affected by a recalcitrant husband who refuses to give his wife a get [halachic divorce]." Levmore's book, Spare Your Eyes Tears: Prenuptial Agreements for the Prevention of Get Refusal (Hebrew title: Min'i Einayich Medima) might represent a new trend in female Torah scholarship. As more Orthodox women obtain high-level Jewish education that includes plumbing the depths of Talmudic arguments and learning the massive body of rabbinical literature, they are beginning to encroach on what was once an exclusively male field. Orthodox women are specifically becoming more activist in areas of Jewish law that directly affect them, such as family purity, divorce, or birth control. Levmore's burning passion has been to find ways to prevent agunot. In Israel, where there is no separation between religion and state, all Jewish marriages and divorces are performed in accordance with Halacha, which dictates that neither the man nor the woman can remarry until a divorce is completed. For women, however, the prohibition against entering into a new relationship without a get is more stringent and the possible consequences more severe: any child born to her from a man other than her husband would be considered a mamzer, who is banned for life from marrying anyone other than another mamzer, or a convert. In some cases husbands or wives use their agreement to divorce as a bargaining chip to extract higher or lower alimony payments, better child visitation rights or a more favorable split of assets. Though wives can also be recalcitrant, in these conflicts the husbands tend to have the upper hand, since it is they who ultimately must issue the divorce, and withholding it for a lengthy period can affect the woman's future childbearing prospects. Prenuptial agreements have been used to break such deadlocks in divorce negotiations by setting a clear time limit of between six and nine months to arrange a divorce. The agreement sets in motion certain economic sanctions if one side refuses to finish the divorce within this time period. Sanctions begin at $1,500 a month, or half of the recalcitrant side's monthly income, whichever is higher. During the six to nine months, the two sides are expected to visit a marriage counselor at least three times to attempt to save the marriage. Both sides sign the agreement before a rabbinical court at the time of their marriage. The Jerusalem Post met with Levmore, who made aliya from New York in 1976, at the administrative headquarters of the state's rabbinical court system. Here Levmore has worked with the support of the Jewish Agency and Young Israel rabbis to try to help resolve difficult divorce cases that could not be settled by the rabbinical courts. From her extensive work with couples in the process of divorce, Levmore has learned the importance of a signing a prenuptial agreement which could prevent unnecessary delays in divorces due to the recalcitrance of one of the sides. So far, female scholars, including Levmore, have restricted themselves to increasing their erudition in their specific fields and have shied away from encroaching on the core of male hegemony - actually ruling on halachic matters. "My purpose in this book is to bring to the attention of rabbis and rabbinical judges the halachic basis for prenuptial agreements," said Levmore. "I hope to bring about change by increasing consciousness and educating people who have the power to implement prenuptial agreements." Levmore, with the support of the Young Israel Rabbis and Ariel Institutions, distributed the book to 1,000 rabbis, rabbinical judges and others. Not all rabbis were comfortable with the idea that the book was authored by a woman. "A rabbinical judge in Tel Aviv who read the book told a female friend of mine - a rabbinical court lawyer - that 'he could not believe a woman wrote it,' said Levmore. "He was convinced that I plagiarized the thing." However, Chief Rabbi of Haifa She'ar-Yashuv Cohen, who wrote the foreword to Levmore's book, said that there was rabbinic precedent for women teaching rabbinical judges how to rule. "According to Tosfot [rabbinical authorities from the Middle Ages] the biblical figure Devora was called a judge, not because she actually served as a judge but because she gave advice to male judges," said Cohen. "So there is no reason why women should not learn Torah. We need to encourage it, too," he said. Rabbi Eli Ben-Dahan, administrative head of the rabbinical courts, said that Levmore's book was important for publicizing the issue of prenuptial agreements. However, he was skeptical about it being accepted by rabbinical court judges. "Some of the judges think prenuptial agreements are forbidden by Halacha," said Ben-Dahan, explaining that there were two main reasons for rabbinic opposition. One group of rabbinic judges thinks these agreements have no legal weight, because the sides never honestly took into consideration at the time of signing the possibility of divorce. A conditional commitment or promise that a person makes, but has no real intention of keeping, is known in Halacha as an asmachta and is considered invalid. Another group believes that a husband who gives his wife a get in order to avoid the economic sanctions detailed in the prenuptial agreement is being coerced to give the divorce against his will, which makes the get null and void. Rabbi David Stav, spokesman for the Tzohar group, a rabbinic organization that became famous for, among other things, offering to officiate at weddings pro bono, said that rabbinical judges' opposition to the use of prenuptial agreements is the main reason why his organization has not adopted them as a mandatory part of the marriages they conduct. "We cannot recommend that couples use them if we cannot be sure that these agreements will be upheld in a rabbinic divorce court," said Stav. "If we did, we would be fooling the couples." However, Levmore said that the only way to find out if the courts would uphold the prenups was by encouraging their use and forcing the rabbinical courts to express their opinion on the agreements. Ben-Dahan said that even if prenups were used, they would solve only a fraction of the cases. He added that there were about 180 cases in which one of the sides in a divorce waited longer than two years for the get to be issued. About 10,000 Jewish Israelis divorce annually. "If prenups were used, I'd say that about 10 to 15 percent of these cases would be solved," said Ben-Dahan. Levmore, however, is convinced that 90% of delayed divorces could be speeded up by prenups. "I've seen it work in action. All we have to do is convince people to use them," she said.


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