Home Perspectives Opinions 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.

Yael Machtinger is a professor of law and society at the John Jay College of Criminal Justice in New York and studies intersections between law and religion. She is currently under contract for a book on the first comprehensive, qualitative study of Jewish divorce-refusal and the first comparative study between Toronto and New York. She can be contacted at [email protected]