Hebrew websites in Israel have reported that two rabbis, both public servants, oppose signing a prenuptial agreement to prevent a husband from refusing to grant his wife a divorce, or get, should one be needed. One, a municipal rabbi and the other a Rabbinical Court judge, reportedly made unsubstantiated claims in a derogatory manner.
The use of rabbinically endorsed prenuptial agreements originated in Morocco. When the issue of aguna – a Jewish woman “chained” to a dead marriage – arose, the 1953 annual convocation of the Rabbinical Council of Morocco passed a resolution requiring all grooms to sign prenuptial agreements. Simply stated, the groom undertook an obligation to support his wife as long as they remained married under Orthodox Jewish law, even in the case of a civil divorce.
Rabbis in the United States followed suit with the development by the Rabbinical Council of America of what is now known as the Beth Din of America’s “halachic prenup.” The venerable Sephardi Chief Rabbi of Jerusalem Shalom Messas himself, originally from Morocco, traveled to the United States to the 1984 RCA convention, where he recommended the use of a prenuptial agreement for the purpose of preventing agunot. Based on the reasoning of Ashkenazi Chief Rabbi of Jerusalem Yaakov Betzalel Zolty, the RCA agreement was phrased by Rabbi Mordechai Willig of Yeshiva University, and was endorsed by leading Israeli rabbis including Rabbi Ovadia Yosef and Rabbi Zalman Nehemia Goldberg.
In Israel, the realization that there was a dire need for a prenuptial agreement as a preventative solution to the problem of get-refusal did not arise within the official rabbinic establishment. Rather, three individual rabbinic leaders – Rabbi Elyashiv Knohl, Rabbi Dr. David Ben Zazon and this writer as a Rabbinical Court advocate – joined together and authored the Heskem L’kavod Hadadi – the Agreement for Mutual Respect – while consulting with experts in civil law, Jewish law, psychology and social change. The Heskem L’kavod Hadadi was made available to the public in 2000.
The reaction of the State Rabbinical Court to the Agreement of Mutual Respect in actual divorce suits was brought to light in 2008 by Rabbi Eliyahu Ben-Dahan, then director of the Israeli Rabbinical Courts. Rabbi Ben-Dahan stated publicly that the Rabbinical Courts have arranged gittin (divorces) on the basis of the Agreement of Mutual Respect. He repeated this statement shortly thereafter as reported on these pages by Matthew Wagner (“Rabbinic Court head supports use of prenuptial agreements,” June 2, 2008).
RABBI BEN-DAHAN was quoted as saying, “Prenuptials can be very helpful in expediting divorce procedures. Especially in cases where it is clear that the couple’s divorce is unavoidable, but where halacha does not give the Rabbinic Court judges the power to obligate the husband to give a get.” Experience has shown that this continues to be the case.
Thousands of couples have since signed the prenuptial Heskem L’kavod Hadadi. It has proven to bring about dialogue between spouses in crisis. The spouses reach agreement through the dual mechanism of spousal support, preventing get-refusal, together with a mechanism of marital therapy. The couples themselves agree to divorce or to achieve reconciliation. This has proven so successful that community rabbis all over Israel urge marrying couples to sign the agreement, and various organizations have copied the mechanisms in presenting their own agreement. Reports have surfaced of cases where there was initial get-refusal (by a husband or wife), lasting until the agreement was presented. Agreement to divorce was immediately reached and a get was issued forthwith.
In juxtaposition to the above, it is illuminating to note that the two rabbis attacking prenuptial agreements this week are part of the Chief Rabbinate of Israel. The Rabbinical Court judge reportedly said, “Wise men of Chelm thought, ‘Come let us make a prenuptial agreement,’” referring to the foolish sages of the legendary Chelm. He added, “These changes are not practical. They have no benefit.”
The Mishna in Pirkei Avot 5:17 says, “Every dispute that is for the sake of heaven will in the end endure, but one that is not for the sake of heaven will not endure.” As one of the authors of the original Israeli community-wide prenuptial Agreement for Mutual Respect, I can say unequivocally that it was created in the tradition of rabbinic authorities who cared for the resilience of the Jewish home and community – and for the sake of heaven. It has endured in Israel for more than 20 years and, with heaven’s help, will continue to succeed in preventing agunot.
The writer, director of the Agunah and Get-Refusal Prevention Project of the Young Israel Movement in Israel and the Jewish Agency (iyim.org.il/prenup) and member of Beit Hillel – Attentive Spiritual Leadership, is one of the authors of the Israeli prenuptial “Agreement for Mutual Respect.” She holds a PhD in Talmud and rabbinic law, and is the first female rabbinical court advocate to sit on Israel’s Commission for the Appointment of Rabbinical Court Judges.