Home Opinions Ideas What a halachic prenup is good for – and what it’s not

What a halachic prenup is good for – and what it’s not

Bogdan Migulski FLICKR

In a recent op-ed in The CJN, Arielle Wasserman highlights ongoing tensions around prenuptial agreements as a remedy to get refusal. I have illustrated in the first comprehensive study of get refusal in Canada and first comparing New York and Toronto that get refusal is domestic abuse and it persists unabated across all sectors of the Jewish community. However, two matters require clarification.

The halachic prenuptial agreement does not impose a penalty on get-refusing husbands as a punishment for their abusive behaviour. It does, however, enforce a husband’s halachic maintenance obligation based upon the ketubah (Jewish marriage contract) to provide food, clothing and shelter to his wife so long as they remain married and until the marriage is terminated by giving a get.

Framing the monetary aspect of the prenup as a penalty is inaccurate and dangerous. A get must be given of free will. Coercion or duress, which a penalty might elicit, makes the getmeuseh,” forced, and no longer halachic. This may seem like a minor technicality, but in law, words matter. A prenup with financial penalties against a recalcitrant husband is fraught with halachic concerns that invalidate it. In contrast, a prenup based on a husband’s fundamental legal obligations toward his wife, entered into with his ketubah contract, allows space for a prenup to simply enforce those obligations. This has proven very useful in inducing the issuance of a get in the event of get refusal and the halachic prenup has been tested and upheld in civil courts in the U.S., beginning in 2012 with Light v. Light.

This is a significant distinction that the Organization for the Resolution of Agunot, the Beth Din of America and leading rabbinic figures require in order to give prenups their “halachic stamp.” Moreover, proliferating inaccuracies regarding the role of halachic prenups only feeds the online trolls the author spoke of, who are determined to trample on the positive developments protecting agunot. Imprecise legal language is also fodder for Toronto’s beit din, which, despite the halachic approval of rabbinic giants, including rabbis Moshe Feinstein and Ovadia Yosef, have expressly and sadly not supported prenuptial agreements to date.

In fact, Rabbi Elisha Schochet of the Toronto beit din was quoted in these pages, in March 2015, stating the prenup is “one of the solutions we don’t use in Toronto for technical reasons as well as certain hashkafic reasons … the prenup is redundant because we have ketubot, which already are a written requirement that a husband support his wife and they are enforced in Jewish religious court, not secular court.” He failed to acknowledge the beit din’s non-enforcement of the ketuba maintenance payment in cases of get refusal or that the beit din has little enforceability in a secular framework.

Wasserman signed an American halachic prenup, which cannot be upheld in Canadian courts due to the ban on religious arbitration. To date, it is unclear whether a Canadian version might be effective. Rabbinic authorities have not publicly endorsed any, none have been tested in courts and no financial maintenance component is included. In other words, signing a halachic prenup in Canada is a social statement more than a reliable legal protection.

Nonetheless I echo the sentiments of the author: prenuptial agreements are important factors in preventing the abuse of get refusal. But we cannot rely solely upon them – we must embrace a “grab-bag” of remedies, including our civil get laws and “e-shaming,” among other tools. It is incumbent upon us to seek justice for agunot. Rabbis, rabbinic courts – and each one of us – must speak about get refusal more often, include women refused a get at our Shabbat tables and publicly advocate on their behalf.

Dr. Yael C.B. Machtinger recently defended her dissertation in socio-legal studies, titled, A Socio-Legal Investigation of ‘Get’ Jewish Divorce Refusal in New York and Toronto: Unstitching the Ties that Bind.

  • fabrent

    Dr Machtinger:
    Would you make the biggest and most important financial investment of your life in a business where you could not get your money out should the partnership sour?
    Would you honestly allow yourself to become involved in a venture where your personal freedom and financial risk relies on the goodwill of your ex-business partner (with whom you fell out) for compliance?
    Every time a woman stands under the chuppah, she is playing Russian roulette with her life.
    A pre-nup? How convenient that rabbis expect secular law to do their heavy lifting for them. What if a pre-nup is not recognized or enforceable in certain jurisdictions?
    A pre-nup is wallpapering a moral and ethical problem with Halacha that should have been remedied long ago. But it won’t happen. And I have long suspected the refusal to do so reflects rabbinic thinking that the current law is a deterrent to family breakdown. After all, a change to get law would mean giving women control over their own lives.

    • Jeff

      why not just change the laws, eliminate the get entirely…a divorce in court becomes a divorce in Jewish law

  • Rabbi Michael Whitman

    While I agree with much of what is written by Dr. Yael Machtinger (“What a halachic prenup is good for,” October 26, 2017), she inaccurately and unfairly disparages the Halachic Prenup for Canada. This document, available at http://www.adath.ca, is being used by and has the strong support of dozens of the most trusted and respected Rabbis across Canada. It has the approval of the highest Halachic authorities of the RCA (Rabbinical Council of America) such as Rav Gedaliah Schwartz, Rav Mordechai Willig, and others, who are recognized all over the world for their expertise in Jewish law. It also has the strong endorsement of experts in the field working on behalf of Agunot, such as Dr. Rachel Levmore and Rabbi Jeremy Stern. The text of this document is based on the opinion of Rabbi Moshe Feinstein, of blessed memory, whose stature in Jewish law is unparalleled. Because of this, this document avoids the controversy that applies to other versions. There are no rabbinic opinions who view the Halachic Prenup for Canada as a coercive document that could invalidate a Gett. It is true that this document has not yet been tested in a Canadian court. But it is the only document that has received the intense scrutiny of lawyers, law professors, and retired judges in Quebec and Ontario – and their consensus is this is the best document possible for Canada. And, so far, after being in use for 15 years, there is not a single case of Agunah in Canada where this document is used. There is no question that for a couple in Canada getting married (or already married and using the Postnup version), there is no more effective way to avoid and eliminate the tragedy of Agunah from modern Jewish life – all we have to do is use it.

    • fabrent

      You can rationalize the pre-nup six ways to Sunday but it lets you and your breathren avoid what is long overdue: amend the gett laws so that the freedom of a woman in the 21st century neither relies nor depends on the goodwill of another human being– goodwill that can hardly be expected to exist in a marital breakdown.
      It is nothing short of absurd (and a shanda to boot) that Jewish law, with its purported “respect” for women, continues to risk holding a woman’s freedom hostage when a marriage is over.
      It is not the pre-nup but Halacha, Rabbi Whitman, that is the the “coercive document” here, because it leaves women who wish to marry under a Chuppa no choice. Place your faith in us, it says. Faith and a $2 will buy you a cup of coffee.
      I truly hope that a pre-nup faces judicial scrutiny one day and is recognized for what it is: an attempt to use secular law to enforce a religious obligation.
      Fixing halacha puts an end to the tragedy of Agunot.

  • Rabbi Michael Whitman

    Please see the document we are discussing at http://www.adath.ca. It is not the regular RCA version, it a new RCA version for Canada.