Conference promotes prenuptial agreement

Bar-Ilan conference discusses multi-layered approach to solve problem of men who refuse to give wives bill of divorce.

By JEREMY SHARON
PRENUPTIAL AGREEMENT 370 (photo credit: Thinkstock)
PRENUPTIAL AGREEMENT 370
(photo credit: Thinkstock)
The Rackman Center for the Advancement of the Status of Women at Bar-Ilan University on Wednesday held a conference on promoting the use of prenuptial agreements compatible with Jewish law.
The agreement presents a multi-layered approach to solve the problem of men who refuse to give their wives a bill of divorce, or get, thereby conferring upon them the status of an aguna – and preventing them from getting remarried and having children.
The agreement allows for a marriage to be ended without requiring the agreement of both parties. Although the Chief Rabbinate and the rabbinical courts system do not recognize this kind of arrangement, proponents of prenuptial agreements argue that there are reliable rabbinic sources for the idea and it is well-founded in Jewish law.
According to Jewish law, a man must grant a get to his wife of his own free will before they can be considered divorced. Without the document, women cannot remarry and any children they might have would be considered mamzerim, a status within Jewish law that prevents them from marrying Jews who do not also fall within the same narrow parameters.
Rabbi Michael Broyde, an expert on the issue from the US, has devised what he terms a tripartite prenuptial agreement, designed to provide a solution to the problem of agunot.
Broyde, a professor of law at Emory University in Atlanta and the academic director of its Law and Religion Program, presented his prenuptial agreement at the Ramat Gan conference.
According to this agreement, if a married couple live separately from each other for more than 15 consecutive months, their marriage is retroactively annulled without the need for a husband to give a get or the mutual agreement of the partners, both of which are required by Jewish law.
Broyde’s prenuptial agreement is based on three concepts, including the notion of conditional marriage whereby the union can be conditioned on the fulfillment of certain requirements. According to him, conditional marriage was an accepted practice for many centuries to prevent the application of levirate marriage, in which the brother of a married man who dies is obliged to marry his brother’s widow.
Broyde cites the opinion of Moshe Isserles (the Rema), an authoritative rabbi of 16th-century Poland who endorsed the use of conditional marriage to prevent the imposition of levirate marriage, and says it is possible to take this concept and apply it to the agunot issue as well.
Yet in an interview with The Jerusalem Post on Tuesday, Broyde said the concepts and foundations of his prenuptial agreement “require examination and contemplation,” and advised caution in its application.
He also commented that he has never advocated its use in the US, since in his opinion the prenuptial agreement endorsed by the Beth Din of America is sufficient.
Broyde refrained from commenting on whether his agreement could or should be used in Israel.
According to a Rackman Center report published last year, the average time it takes for a woman in Israel to receive a get after proceedings are initiated in a rabbinical court is 642 days.
Between 1995 and 2007, in 12.5 percent of the cases more than four years elapsed before a get was granted, and 28.4% took at least two years.
Officials in the rabbinical courts system, which has exclusive jurisdiction over all matters of marriage and divorce, claim that there are only 200 or so cases open in which men who refuse to give their wives a bill of divorce.
However, the Rackman Center and other divorce rights groups argue that this figure is not representative of the actual numbers, since the rabbinical courts only consider a woman to be a mesurevet get (a woman whose husband refuses to grant her a get) after the court has issued a particularly stringent ruling against the husband that in practice are rarely handed down by the rabbinical judges.
Rabbinical courts are generally worried that these stringent rulings will effectively force recalcitrant husbands into giving the get, thereby invalidating it and potentially causing the man’s wife to give birth to children who will have the status of mamzerim.
In the overwhelming majority of cases, the courts issue more lenient rulings against the husbands and do not consider the women to be agunot. Because of the preponderance of such cases, the Rackman Center and other divorce rights groups say that there are in fact several thousand women in Israel whose husbands are refusing to give them a get.
The state comptroller has rejected the figure presented by the rabbinical courts.
According to Mavoi Satum, a divorce-rights lobbying group, men often refuse to provide the document to their wives, as a bargaining tactic for more favorable terms in the divorce settlement for division of assets, custody of children and other similar issues.