Why Prenups Don’t Work, And What To Do About It

Last year, the issue of agunoth or “chained women” — women who are unable to remarry — hit popular culture in the form of a movie, “Gett: The Trial of Viviane Amsalem.” The Israeli film, nominated for a Golden Globe and selected as the country’s contender for the Oscar’s Best Foreign Language film category, follows the drawn-out legal battle of an Israeli woman trying to secure a get, or bill of divorce, from her recalcitrant husband. According to Jewish and Israeli law, only the husband can divorce the wife.

Eventually, she is able to obtain a get, but only on the condition that she promise never to be sexually involved with another man. Many of us have encountered women who, like Vivianne, have paid dearly for the price of their freedom to remarry. Some of these are women we know, others are women we’ve encountered online and fewer still are those we’ve read about in cases that have been fortunate enough to garner local and national media coverage. In response to greater awareness of the plight of agunoth, there has been increasing social pressure on observant couples in the United States to sign the Rabbinic Council of America’s “Halakhic Prenup”. But the prenup doesn’t work.

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On a practical level, the agreements try to impose financial penalties, usually in the form of a daily fine, if the husband fails to appear at the rabbinic court, or beth din. Note that he does not need to give his wife a get once he turns up. Since a get must be freely given, rabbis are hesitant to apply too much pressure to the husband. For this reason, appearing before the court is enough to halt the financial penalty. Of course, if the husband is wealthy, the fines will not compel him, never mind the difficulties that arise if he moves to a different country.

What’s more, these prenuptial agreements serve to expand the authority of rabbinic institutions such as the Rabbinic Council of America. The Rabbinic Council of America’s prenuptial agreement empowers the rabbinic court to “arbitrate all issues relating to a get, as well as any issues arising from premarital agreements.” Some of the expanded versions of these agreements even transfer issues like child custody, visitation rights, and property rights, from the secular courts, where women have more rights, to the religious domain. In fact, some men make the inclusion of these secular issues a condition of their signing the prenuptial agreement. When that happens, rabbinic courts have the option of pressuring agunoth to forfeit some of the rights that might be accorded them in a secular court, like the ability to live with their children, in exchange for a get.

All this means the Rabbinic Council of America and similar prenuptial agreements give women a false sense of security that they are immune to either get extortion or becoming an agunah. They fail to correct the imbalance of power in divorce proceedings, and offer palliative solutions that are contingent on following the will of the courts. Rather than confronting the problem, they simply mask the source of it, and further compromise the rights of women.

Real reform should begin, interestingly, not with the Rabbinic Council of America, but with finding solutions in the documents and acts that constitute Jewish marriage itself. Traditional Jewish law allows for “conditional marriage,” which requires that certain conditions be fulfilled for the marriage to be valid. Similarly, Jewish tradition also allows for a conditional get, which would empower the wife to divorce the husband if certain conditions were not met such a longer-than-expected absence by a merchant spouse, indicating that he had probably died on a journey. Under this system, sexual relations would invalidate the get, so a modern version would require some adjustments.

But a similar [get] [get taluy bema’aseh] (http://www.mechon-mamre.org/i/4209.htm) could work today, and better than our prenups do. The groom would write and deliver a “potential” get, which would only take effect after a particular act from the bride in the future. This act would be one that the couple would determine together, such as the wife giving the husband a very specific object of worth or sum of money that would make clear her intent for divorce.

The text of the “potential” get would remain the same as the traditional get that empowers only the man. This document allows a woman to divorce her husband at any time, just as a man can divorce his wife at any time. It removes the imbalance of power from the institution of Jewish marriage. If the writing and delivery of this potential get is made a condition of betrothal, then the woman cannot ever become an agunah. Ironically, it is a return to the classical sources, rather than modern rabbinic institutions, that can better set the foundation for a loving partnership of equals.

Shayna Zamkanei holds a Ph.D. in Political Science from the University of Chicago.

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