Ending the Agunah Problem as We Know It

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Prenuptial Agreement

One of the great challenges facing our community is the problem of the modern-day agunah: women who remain trapped in marriages that have already functionally ended, because their husbands refuse to grant them a get, a Jewish bill of divorce.

But over the course of the past 20 years, one particular solution – the Beth Din of America prenuptial agreement – has emerged as the most promising preventative solution to the agunah problem.  It has been so successful that it carries the promise of effectively ending the agunah problem as we know it.  This article is an attempt to explain the importance of the prenuptial agreement, and argue for its wider adoption among all segments of the observant Jewish community.

The Agunah Problem

Until relatively recently in our history, the agunah problem was limited to cases of women whose husbands were lost at war or at sea, and who could not remarry without halachically acceptable evidence of their demise.  Today the term “agunah” has come to refer, more often, to women whose husbands refuse to give a get, a Jewish bill of divorce, even after their marriage has functionally ended.

Although a get is ultimately delivered in the vast majority of divorces in our communities, in many instances the giving of the get itself becomes a contested matter between a divorcing couple.  While it is true that a get may also be withheld by a woman (as we shall see), because of a number of sociological and halachic considerations, the vast majority of cases in which a get has not been forthcoming have involved recalcitrant husbands, rather than wives.  Without a get, a woman may not remarry and the children born from any subsequent unions bear the stigma of mamzerut (offspring of a relationship forbidden by the Torah).

The anguish experienced by spouses who are not assured their husbands will cooperate with the get process is heartwrenching.  Some women in this position were victims of domestic violence in their marriages, and despite their best efforts to the contrary, remain wedded indefinitely and against their control to their abusers.  They are robbed of the autonomy and freedom necessary to begin new relationships and attempt to rebuild their lives.

But the plight of the modern-day agunah should capture our attention not only because we have a responsibility to ameliorate the suffering of long-term agunot and prevent the occurrence of more such cases going forward, but also because the potential for get recalcitrance dramatically affects the balance of power in quite a number of divorce negotiations.

Divorce is a messy prospect.  Two people who, until now, had ordered their social and economic affairs based on the proposition that they would remain together, are forced to negotiate a separate existence.  Ideally, a husband and wife wishing to separate negotiate an agreement with the help of their rabbis, their lawyers, or a mediator, that involves mutual compromise and allows both of them and their children to move on with their lives.  But that does not always happen, and sometimes the parties engage in a protracted and highly litigious ordeal (ideally in beit din, a rabbinical court but, too often, in a secular court), with each spouse fighting intensely over money and child custody and visitation arrangements.

In the very worst cases, a recalcitrant spouse may put a price tag on a get and use it to extort large sums of money.  But even short of that, a husband might threaten to withhold a get until his wife meets certain demands that he genuinely views as reasonable.  Sometimes, the get becomes a potent tool to extract financial or other concessions in divorce negotiations, beyond those that a disinterested third party would judge to be reasonable.  A woman may be so desperate for a get that she will consider agreeing to an unfair financial settlement, or custody and visitation terms that are not in the best interests of the children.  In some extreme cases, safety concerns may require supervised visitation arrangements, and the use of a get to obtain unsupervised visitation can be downright dangerous.

Halachic Attitudes Regarding Get Recalcitrance

On a practical level, a husband who can threaten to withhold a get possesses unfettered control in determining the outcome of his divorce dispute.  This lack of balance is untenable, and stands diametrically opposed to the Torah’s vision of how irreconcilable conflicts must be resolved – through the determination of impartial dayanim (judges) in a system of conflict resolution that is entirely neutral.  No civilized society, let alone a Torah society founded on a keen sensitivity for due process and justice, can tolerate a system where one side of a dispute gets to call the shots.

This means that, notwithstanding the supreme importance of shalom bayit (marital harmony) and preventing marital conflict and divorce, when a marriage has failed beyond any hope of reconciliation, and a wife unambiguously expresses her desire to be divorced, the husband has a moral obligation to deliver a get to his wife.  Rabbi Yosef Eliyahu Henkin, one of the foremost halachic decisors in the United States in the 20th century, put it this way:  “One who withholds a get because he desires money for no just cause is a thief.  Indeed, he is worse than a thief as his conduct violates a sub-prohibition (abizrayhu) related to taking a human life.”

Throughout the ages, Chazal have interceded and introduced rabbinic solutions when people have sought to take advantage of the halachic system of marriage and divorce.  At the most basic level, Torah law grants a husband full control over the divorce process.  He is free to unilaterally divorce his wife, and a get may only be given by a husband “meritzono hatov,” of his own free will, and may not be coerced.

So to protect women from the sudden dissolution of their marriages with no economic protection, the rabbis (and in some cases, the Torah itself) provided a financial incentive to prevent unilateral divorce, in the form of the ketuba.  In the tenth century of the common era, Rabbeinu Gershom altogether removed a husband’s power to divorce a woman without her consent.  And various Rishonim, such the Rambam and Rabbeinu Tam, discuss rabbinically sanctioned methods which batei din may utilize in certain circumstances to compel a husband to divorce his wife, such as social ostracism and, sometimes, even physical compulsion.

But if Chazal were successful in curbing many of the potential abuses of the system, some of their methods simply cannot be implemented in today’s open society.  In pre-Emancipation Jewish communities where authority was centralized and individuals could not easily relocate, social ostracism was a harsh punishment, and a recalcitrant husband could not easily escape the consequences of his bad acts.  Today, we suffer from a multiplicity of batei din and a lack of communal cohesion.  If one shul denies privileges to a recalcitrant husband, he may be welcomed by the shul down the block.  If not, he might move to another community.  In too many cases, unfortunately, he is simply immune from communal pressure because he has left the observant community altogether.

In a nutshell, this is the problem of the modern-day agunah:  a husband’s unilateral ability to deny a divorce to his wife, combined with a lack of communal authority to regulate the behavior of individuals who violate Torah norms and the frequency and contentiousness of divorce in our contemporary society, creates a perfect storm that can result in the use of the get as an improper tool for leverage or revenge.

The Prenup

Prenuptial AgreementWhile numerous solutions to the agunah problem have been proposed, only one has received the backing of many prominent halachic authorities and consistently lived up to its promise of preventing situations of get recalcitrance.  This is the Beth Din of America prenuptial agreement, which was first developed in the early 1990s by Rabbi Mordechai Willig in consultation with halachic and legal experts.  It consists of a mechanism that authorizes a beit din to determine when a get should be given, and empowers the beit din with the necessary tools to ensure that its rulings will be followed.

The prenup, which is available at www.theprenup.org, is signed by a couple prior to their wedding, and provides that in the event of an impending divorce, either spouse may require the other to appear before the Beth Din of America.  Under the agreement, if the couple no longer lives together, the husband becomes obligated to provide monetary support to his wife at a fixed, daily rate (which adjusts for inflation) for so long as they remain married under Jewish law.  The default daily rate is $150, which comes to approximately $54,000 per year, but may be adjusted by a couple at the time they sign the agreement to reflect their actual standard of living.  Once the beit din orders the daily support to be paid, it becomes a legal obligation, enforceable in secular court.

The solution is as elegant as it is effective.  Under the terms of the prenup, a husband is not fined or forced to give his wife a get (either of which could potentially harm the validity of the get as a matter of halacha).  The husband is free to decline to give a get and to remain married to his wife for as long as he wishes, provided he financially supports her pursuant to the prenup until he is prepared to end the marriage.  The agreement provides a clear incentive for the husband to give the get once it is clear the marriage is over, but is not halachically overreaching.

What is most remarkable about the prenup is that it actually works.  It has been utilized in scores of cases before the Beth Din of America, and has consistently prevented the use of the get as a tool for improper leverage or extortion.  It has worked dramatically to produce a get even in highly contentious cases, where couples have bitterly litigated all the other issues on the table.  Most often where there has been a prenup in place, the Beth Din has not even needed to begin formal proceedings to award support under the arbitration provisions of the agreement.  The mere existence of the prenup, and the husband’s knowledge that it is an enforceable document, has convinced the husband that he has nothing to gain by delaying the delivery of the get.

The Challenge Going Forward

In my position as menahel (director) of the Beth Din of America, I speak regularly with women seeking gittin from their husbands.  Their stories span the spectrum of the modern-day agunah experience.  Some already obtained their civil divorces, but their husbands are withholding gittin for better financial or custody deals, or simply out of spite.  Others are in the midst of ongoing, bitter divorce contests, and live with the uncertainty of when or whether they will receive their get, or have been explicitly told by their husbands that the get will be an issue.

While the marriages of some of these women predate the introduction of the prenuptial agreement in the early 1990s, many do not.  They had either not heard of the prenup, or they dismissed it as unnecessary.  But in each one of these cases, the simple act of signing the prenup would have averted the potential for tremendous human suffering, not to mention the chillul Hashem (desecration of G-d’s name) that results from their terrible stories.  All the time, I hear women tell me that they wish they had insisted on signing the prenup.

So why is it that this solution, 20 years after its introduction, has not been universally adopted?  To be sure, the most important prerequisite to any solution to the agunah problem is its halachic viability.  A halachically problematic solution to a halachic problem is no solution at all.  In particular, any mechanism that incentivizes the giving of a get must not unwittingly create gittin that are invalid because they have been improperly coerced.  But the prenup has been unconditionally approved by a wide range of rabbinic authorities, particularly because it was intentionally structured in a way that poses no risk of improper get coercion.

Among others, Rabbis Ovadia Yosef, Zalman Nechemia Goldberg, Gedalia Dov Schwartz, Asher Weiss and Chaim Zimbalist have all endorsed the use of the prenup.  In 1999, a group of leading roshei yeshiva at Yeshiva University, including Rabbi Hershel Schachter, issued a statement endorsing the use of halachic prenuptial agreements like the Beth Din of America prenup.  In 1993 and 1998, the Rabbinical Council of America passed resolutions encouraging the use of prenuptial agreements such as the prenup, and in 2006 the RCA passed a resolution declaring that rabbis should not officiate at a wedding where a proper prenuptial agreement has not been executed.

For the most part, the obstacles to wider adoption of the prenup have consisted of cultural and practical concerns.  Some are reluctant to advocate the use of new tools, particularly in the context of the age-old and sacred traditions that surround the Jewish wedding.  Others have argued that the joy of a young couple about to be married should not be upset by conversations about divorce and the agunah problem that would inevitably result from discussions about signing the prenup.

But surely the promise of preventing situations of <em>get</em> recalcitrance justifies the introduction of this modest innovation in Jewish life.  And even at the happiest times of our lives we are duty-bound to plan realistically for the future and to address contingencies that we do not anticipate happening.  At a wedding we sign a ketubah, even though it is an economic document that addresses worst case scenarios such as death and divorce.  When we buy a new house we purchase homeowner’s insurance, even if we do not ever expect our homes to burn down, Heaven forbid.  New parents buy life insurance and vaccinate their babies, even if they do not want to think about topics like death or disease, r”l.

Consider, also, that the claim that signing a prenup disturbs the joy of premarital planning is overstated.  When I got married, I knew that the vast majority of my friends had signed a prenup prior to their weddings, and my wife and I treated it as just another pre-marital task that needed to get done.  As time goes on, and as the prenup becomes accepted among more and more segments of the Orthodox Jewish community, the argument that it conjures negative associations will become increasingly less compelling.  Signing a prenup will become as routine and expected as signing a ketubah, buying insurance, or vaccinating our children.

Introducing the prenup to couples prior to their weddings carries one more advantage: it provides a valuable opportunity to teach them a critical lesson about healthy marital relationships.  In its essence, the agreement represents a commitment to selfless behavior, a promise from a prospective husband to his wife-to-be that he will treat her with dignity not only when it benefits him, but always. By signing the prenup, a chattan (groom) communicates to his kallah (bride) that even in the worst of circumstances he will not act indecently to exploit advantages he may possess.  In a society where marital strife affects too many households and where divorce is an epidemic, this is a worthwhile message.  There is no better time to sign a document that provides the basis for a marriage that is grounded in love and respect than in the period preceding a wedding.

For those who have felt compelled to take action to address this tragic problem, but who have sat on the sidelines until now because no ready solution appeared possible, the 20th anniversary of the introduction of the prenup is a good time for a reassessment of its virtues.  An idea that two decades ago may have seemed like a fine scheme in theory has now withstood the test of time and represents an effective, long-term solution to the agunah problem.  To the extent that the prenup is signed by more and more couples and eventually becomes a prerequisite to marriage in our communities, we have the opportunity to virtually obliterate this problem from our midst.

This article is reproduced with permission from Viewpoint Magazine, National Council of Young Israel, Spring, 2012. It is part of a larger feature section on Jewish marriage, which may be accessed at www.youngisrael.org.

For more information about the prenup and for printable forms of the prenup, go to: www.theprenup.org.

The Beth Din of America is a rabbinical court that serves the entire spectrum of the Jewish community.  Its services include arranging Jewish divorces, arbitrating and mediating commercial and communal disputes, and the resolution of halachic personal status issues.

Rabbi Shlomo Weissmann is the Director of the Beth Din of America.

The words of this author reflect his/her own opinions and do not necessarily represent the official position of the Orthodox Union.