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
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
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.
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.
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
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
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
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
, thereby invalidating it and potentially causing the man’s wife to give
birth to children who will have the status of mamzerim.
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.