How to Prevent a Modern Day Agunah

How to Prevent a Modern Day Agunah
  • Welcome to our impressive panelists and to our 'listeners.' Please read the bios of our diverse panel above and feel free to submit questions throughout this conversation by using the link above.

    While there is much to say on the subject, I'd like to begin by offering a few starter questions. Firstly, how effective is the halakhic prenup? Does its enforce-ability and effectiveness vary based on locale?
  • Shalom to all from Israel.

    It is an honor to participate in this blogcast. I begin in the hope that this medium will prove to support a deep discussion of the very complex subject of resolving the Agunah problem. For there is no pat answer, as is evidenced by the myriad of conferences, study groups, academic courses and dissertations as well as individual searches for solutions held over the years and are still ongoing.

    In order to establish a basis for this discussion of "how to prevent a modern-day agunah" with the emphasis on prevention, I'd like to say at the outset--it is obvious that a pat answer (which has been suggested) could be "don't get married in a halakhic manner". The way I see the issue, that answer clearly is not part of this discussion. We are here to talk about prevention from within Orthodox halakha.

    For those who interpret the title to include resolving the situation of an agunah which already exists, meaning one who find herself in that situation, I refer you to the fascinating discussions on a systemic solution which were held at the "Agunah Summit" on June 24, 2013, co-sponsored by JOFA and NYU. A list of the proceedings, together with source sheets, can be found here. A quick glance will demonstrate how lengthy such discussions can be.

    I would prefer to interpret the title of this blogcast in a more practical manner: A guide to the various options of preventing a woman from becoming a modern-day agunah. I look forward to sharing my experiences in doing just that and learning from the experiences of others.
  • Hi to all. First, thanks to Sharon and Jofa and everyone else who made this blogcast possible. Second, thanks for including me in it.

    I think Sharon's question of "how enforce-able are the halakhic prenups" is a very important one. And I think the answer, in short, is: "not very."

    In the Diaspora, the RCA Prenup is an arbitration agreement which gives authority to the RCA Beit Din (BDA, Beit Din of America) to determine if the "Increased spousal support" that lies at the heart of the RCA Prenup will be imposed in the first instance. Only if the BDA first makes an arbitration award can a woman go to civil court to then enforce that award. The most recent version of the RCA Prenup consolidated what was once 2 documents (the 1993 version) into 1 in order to specifically prevent enforcement directly in civil court, as was done in the 2012 Light case—the only case on record in which a woman actually enforced the RCA increased spousal award amount. Rabbi Willig, the author of the RCA Prenup, states clearly that the BDA does not really want to award the increased spousal amount suggested in the RCA prenup. The increased spousal support provided in the RCA Prenup, according to R. Willig, is an "incentive," ie: meant to "prevent agunot" in first instance, but not to be actually awarded and certainly not enforced. Underscoring that the BDA is not inclined to award the promised increased spousal support, he writes:" …Since the intent of the prenuptial agreement was to serve as an incentive for the husband to deliver a get in a timely fashion, the husband cannot be obligated to pay the daily sum in a case where the husband has acted in good faith, even if the plain language of the document may imply otherwise." (at 14, emphasis mine). In short, a woman can only enforce the RCA prenup after an arbitration award has been issued by the BDA. And the BDA does not like making those awards.

    In Israel, the recent Tzohar Heskem Ahava arbitration arrangement, also places "breaks" on enforcement requiring arbitration. A woman cannot go directly to civil, family court to enforce the agreement. Instead she must arbitrate the prenup in front of an arbitrator with broad discretion as to whether or not to award the "increased spousal award" promised under the Heskem Ahava. The Agreement for Mutual Respect is vague as to where enforcement should take place. If a woman (or man) should attempts to enforce the Agreement for Mutual Respect in an Israeli Rabbinic Court, I think she would find herself in trouble. Similarly, if the recalcitrant spouse raced to the rabbinic court house and "attached" the matter of the prenup to be adjudicated there, rather than in an Israeli family court, that would also serve to impede enforce-ability of the Agreement for Mutual Respect.

    For all the above reasons, the Agreement of a Just and Fair Marriage drafted by the Center for Women's Justice states clearly that enforcement of the increased spousal support should be in the family court, and not in the rabbinic court. I personally oversaw enforcement of a prior iteration of CWJ's agreement (Prof. Ariel Rozen-Zvi's Agreement) that was in fact enforced by the Israeli District Court (precursor to Israeli family courts).

    But perhaps the above discussion on enforce-eability is indeed premature. Perhaps it should indeed be prefaced by the statement that all the halakhic prenups on the market today --with the exception of CWJ's that includes a condition, an agency, and authority to dissolve a marriage-- is not a "solution" for a woman whose husband would be unmoved by the threat of having to pay increased spousal support. An agunah whose husband is missing, incompetent, very rich, or very poor, or willing to pay the increased spousal support will not be helped by these prenups.

    Also, IMHO we in this blogcast cannot ignore those of us Jews in Israel and Disapora who are choosing to solve the agunah problem by not marrying with kinyan. Indeed this is a halakhic issue that needs and must be addressed since avoiding kinyan is a systemic, halakhic solution to the problem of the agunah. See, for example the proposition by Rabbi Meir Simcha Feldblum, adopted by Rabbi Noam Zohar of the Hartman Institute.
  • Thanks so much for including me on this! While I can definitely understand the desire to obtain damages for victims of get refusal, at the end of the day getting damages and getting a get are two different goals. In an ideal world people would get both, but in the real world that is not always possible.  As an organization, our goal in resolving the agunah crisis is to assist people in obtaining a get, not to pursue financial restitution. 

    In our experience working on hundreds of contested get cases, the Prenup (we use the Halachic Prenuptial Agreement from the Beth Din of America)  has been 100% successful in securing a get in cases of recalcitrance. Ultimately, the Prenup may work in only 99% of cases, in which case we can look to alternative solutions to resolve the remaining small minority of situations.  With regards to abrogating halachic marriage by doing away with a kinyan, that is so far outside the reality of marriage attitudes in nearly every segment of the Orthodox community that it is extremely unlikely to succeed on any widespread level.
  • Thank you, Sharon and JOFA for arranging the blogcast and inviting me to participate.

    Regarding the effectiveness of prenups, a number of points need to be made:

    1. Prenups are only effective if they are used.  We still have a long way to go before they are the standard in the Modern Orthodox community, let alone all of Orthodoxy.  We owe the RCA and the BDA a big debt of gratitude for instituting the prenup in a way that it is effective according to halakha and secular law, and that is being used quite often.  That being said, I believe a recent internal poll of the RCA showed that it was only being used 50% of the time (perhaps I am mistaken, and it was 50% of the rabbis).  This figure might be somewhat inaccurate, but the bottom line is is that there is no excuse for it not to be used 100% of the time.  The RCA can easily make it a requirement for membership, and they have chosen not to.  This, of all things, is not the place to be pluralistic!  If rabbis are required to use it, then it will be non-negotiable at every wedding ("I'm sorry, my rabbinic organization does not allow me to forgo this, even though you the groom may not want it"), and the strength of the moral statement behind it can help it to become a standard outside of MO.  I should mention that YCT requires all of its rabbis to use a prenup, as does the IRF.  As I said, we are deeply indebted to the RCA for the prenup, and it is critical for them to take the necessary step and make it required.

    2. Failure to secure payment for the terms of the prenup is not just a financial issue (although there is the reality of pain and suffering that is not being compensated for) - it is an agunah issue as well.  In this reality, there is no incentive to give a get sooner - why not just schlep it out?  Heck, I won't have to pay anything as long as I deliver a get in the end.  The husband thus continues to exercise power and control over his wife throughout the process.  While a get will - God willing - result in the end, the basic power imbalance and abuse continues.

    3. This brings me to the final point about prenups - the argument that it is 100% effective.  I believe that that is true - that it has always resulted in a get, and - as stated - we require all of our rabbis to use them.  That being said, they do not change the power dynamics, and this means that a lot of compromises, not just the waiving of the payments of the prenup, are being made along the way.

    Let me share with you a story.  A few years after my mother aleha ha'shalom died, my father began to date again.  Every time he would take out a divorced woman, he asked her if there had been any problems with the divorce or around the gett.  Every single woman responded that she did not fight her husband on anything - custody, support, etc. - because she did not want the gett to become an issue.  My father said to me that it was at that stage that he realized that every woman who has been through a divorce is an agunah.  As long as this tremendous power imbalance remains, a woman will always concede more than she would, will always act in fear that the gett could be used as a weapon, even if it hasn't been brought up at all.

    It is thus critical to prevent a protracted gett process, and to neutralize the tremendous power imbalance that undermines the fairness and justice of every case of religious divorce, that we work to find other solutions to be used alongside the prenup that will make the process of religious divorce as fair and equitable as the process of secular divorce is.

    I will post later to add to these thoughts.

  • How does the prenup differ based on region? Do you feel differently about different prenups?
  • I'd like to relate directly to Sharon's two questions.

    1. How effective is the halakhic prenup?
    There are two halakhic prenups which have been signed by thousands of couples - In the US it is the Binding Arbitration Agreement of the Beth Din of America, and in Israel it is the Heskem l'Kavod Hadadi -The Agreement for Mutual Respect.

    In the US, Keshet has noted from ORA's experience that the BDA prenup has been 100% successful in securing a get in cases of recalcitrance. I can add that I have heard Rabbi Yonah Reiss, formerly of the Beth Din of America and now of the Chicago Rabbinical Council, say repeatedly in various public forums: "the prenup is 100%effective. in every case where the prenup has been signed a get was delivered in a timely manner."

    In Israel, from experience gathered in the IYIM, the Agreement for Mutual Respect has saved a number of women. In fact it is so successful, that in each case once an initially recalcitrant husband was reminded that he signed the prenup, the get was arranged within a few weeks. There was never even a need to begin implementing the agreement. It is so well drafted and airtight that its very existence neutralized get-refusal.

    2. Does its enforce-ability and effectiveness vary based on locale?
    In the US there are various State laws. I leave it to the American experts to expand on this. In any case you can see that there is a unique version for use in California on the site

    In Israel we have the Agreement for Mutual Respect as an "international version". It is the standard version (enforceable in the Israeli Courts) with an additional clause through which, in the case that one or both of the couple are abroad, the couple is viewed as having signed the BDA halakhic prenup as a legally accepted binding arbitration agreement. In that manner we have tried to "cover" the various locales.

    I will also mention that we have drawn up a version of the "Prenuptial Agreement for Mutual Respect for use in England", which has its own unique laws. You can see it and get a detailed explanation in the article "The Prenuptial Agreement for Mutual Respect, Get and English Law".
  • One other question to consider- what happens when one of the parties relocates?
  • I am thrilled to hear that in Israel the presence of the prenup has led to almost immediate compliance by the husband.  My sense is that in the U.S. this is far from being the case.  We must on the one hand recognize how powerful and effective the prenup has been and demand its use at every wedding, and at the same time stop hiding behind the "100% effective" statistic which hides the often prolonged and agonizing nature of the process, and the profound power imbalance which leads to so many concessions along the way.

  • Some statistics and facts from my side of the table as an Israeli divorce attorney who has overseen hundreds (if not thousands) of Jewish divorces : Most Jewish men WHO DO NOT SIGN HALAKHIC PRENUPS will (eventually and at some price) give their wives a get. Ipso facto, most Jewish men WHO DO SIGN HALAKHIC PRENUPS will (eventually and at some price) give their wives a get. Saying that 95% of the (good) men who sign prenups will (eventually and at some price) give a get simply does not say much at all in favor of those prenups. We probably don’t need halakhic prenups for the good men who agree to sign them. And we don’t need prenups just to bring couples in front of Rabbinic Courts. Israeli reality confirms that. If Rabbinic Courts were enough, why do we need prenups in Israel at all?

    In my opinion, we need halakhic prenups to prevent extortion; to accelerate the get so that it is given within a reasonable time; to provide solutions for women whose husbands are missing or comatose or insolvent; to bypass the need for halizah; and, in my mind, also to solve the dilemma of mamzer. In short, IMHO we need prenups to acknowledge the problems inherent in halakha with regard to Jewish woman and divorce-- the power imbalances, the injustices, and, moreover, the issue of kinyan. The current prenups fall far short of all that. My colleagues may not agree with me on all of this. But, at the very least, we should be able to agree that the current prenups which provide for increased spousal support in the case of separation without a get must be "enforceable"-- in fact, and not in theory. If the support obligation is not enforceable, it will not be effective against bad men, and it will not even have a chilling effect against those with bad inclinations once they realize that the obligation is tepid and unenforceable. And since rabbinic courts – whether in Israel or the Disapora—won't "enforce" such agreements for payment of increased support, halakhic prenups that rely on increased spousal support to prevent aginut must state clearly that they are meant to be enforced in CIVIL COURT, not rabbinic court. (As I noted in my previous pose, Rabbi Willig has more or less stated that the RCA Prenup is not really meant to be enforced at all. And the Agreement for Mutual Respect does not state clearly that enforcement is meant to be in family court and not in rabbinic court. This lack of clarity allows for the effective evisceration of the effectivity of the Agreement for Mutual Respect if it is brought before a rabbinic court in Israel for enforcement. )

    Regarding change of venue, all prenups, whether halakhic or otherwise, have to be signed in the appropriate, legal manner according to the jurisdiction in which it was signed in order to be enforce-able. So, if a prenup was signed before a notary in Israel before the marriage, it is "enforceable" in any jurisdiction upon relocation. So, if an Israeli man agrees, in a proper notarized document, to pay increased "spousal support" in the event of separation without a get, that agreement to pay support could be enforced in any civil court in the world. It is a contract for money.
  • This begs the question, what does it mean when we say that the current prenups work? It might be helpful to understand the measure of success. Does it mean that the gett is issued within a month? Within six months? How do the statistics compare to those who do not sign a prenup? What are methods and tools are implemented in addition to the prenup to get the gett or is the prenup alone sufficient.

    Bottom line: it might be helpful to offer a comparison between the general experience of women who have and have not signed the prenup.
  • To clarify Rabbi Linzer's comment--

    The Agreement for Mutual Respect does not allow any "wiggle room" and thus it is so effective. It is not dependent on the "will" of the court (any court), actually leaving no room for compromise. The conditions stated therein are absolutely clear, so that when it is implemented and thereafter brought to court (if it ever become necessary) it is on "automatic pilot". A letter of notification is sent by either spouse; after 180 days the recalcitrant spouse must pay the one willing to end the marriage a set amount of high spousal support until the marriage is over according to the "laws of Moses and Israel". The obligation to pay is not contingent on any conditions, demands or the like. The inability to get away with stalling of any kind is what brings initial get-refusers to immediately agree to give a get, since they realize that they will be paying the wife (that left them) high monthly payments at the end of the 180 day period.

    There is a major difference between the Agreement for Mutual Respect and the BDA prenup in that there is a 180 day period after the initial notification is sent in the mail. This period allows "the message to sink in" without opening any file in any court. There is no one else involved other than the two spouses who are forced to communicate, with representation if they choose, and in reality they are both interested in reaching a divorce agreement on their own. That is why the get is given in a matter of weeks, by filing a joint request for its arrangement in the Rabbinical Court. So far experience has shown. that no court has ever been called upon to implement the conditions set forth in the Agreement for Mutual Respect. When each couple appeared before the Rabbinical Court in order to arrange the get and the Rabbinical Court was informed that the husband agrees to the get due to the fact that he signed the Agreement for Mutual Respect, the rabbinic judges immediately arranged the get. There was no challenge made to the agreement. This is a demostration of 100% efficacy. 

    In the article Preventing Get-Refusal: From the Beth Din of America to the Israeli Agreement for Mutual Respect, I compared the two halakhic prenups--that of the Beth Din of America and that of the Agreement for Mutual Respect. I refer you to that article in order to understand their respective effectiveness in depth.

    After the Agreement for Mutual Respect was made public, over 15 years ago, it took some time but other prenups were suggested by various bodies, including one recently by the Rabbinic organization Tzohar. Indeed the Tzohar agreement has "wiggle room" since it is a binding arbitration agreement where the ultimate arbiter is unknown at the time of signing. That arbiter may not only be inexperienced, but is granted the authority to "compromise". It is definitely recommended that couples sign the Agreement for Mutual Respect - which appears in five languages on the IYIM site.

    Without a prenup, a woman is left exposed to the husband's will - to give or not to give, under what conditions or "justifications" to give, to enter into vindictiveness or to finish amicably. It is totally out of her hands or control, as Rabbi Linzer's father discovered.

    All that being said I want to clarify that all of the discussion until now of halakhic prenups referred solely to financial contracts whose aim is to prevent get-refusal. The purpose of these contracts is not to prevent the classic case of iggun. That requires a completely different halakhic mechanism which is more complex. More on that later.
  • This question came in last week before our online conversation had commenced. Is there any instance in which it would be advisable for a woman to refuse to accept a get? Is there any scenario in which it would be advisable for a man to refuse to issue a get? Do exceptions exist?
  • A few thoughts in response to Rabbi Linzer's eloquent points:

    1. First, as a point of clarification, in cases where the Prenup has been signed and executed properly and a spouse is recalcitrant, we at ORA have seen nearly immediate compliance with the Prenup. Women who have signed the Prenup do not have to make concessions in exchange for the get because it is given before the situation comes to that point. Of course, there are many cases we deal with at ORA where the Prenup has not been signed and extortion is part of the Get process--however, that is exactly what the Prenup can and does avoid.

    2. While we still have a ways to go before Prenups are fully standardized in our communities, we have come a long way even in the past five years alone in spreading the use of the Prenup. If this growth continues over time, we will realistically be looking at a world where the Prenup is standard in the Modern Orthodox community and gaining traction in the Yeshivish community. Required usage of the Prenup would indeed be helpful, and part of how we can get there is by sending a unified message as advocates. After all, if those of us who deal with these issues professionally are arguing that the Prenup is ineffective, why would rabbinic organizations require it?

    3. In a case of recalcitrance where the Prenup was properly signed and executed, the get should be given in a timely fashion, making damages nearly irrelevant--any accrued damages would likely be minimal and the true goal of the Prenup is to avoid incurring these damages at all. After all, there is no greater incentive than to be offered a clean slate, with no damages to pay as long as the get is given. Damages claims may be a viable tool in resolving years-long agunah cases where no Prenup has been signed, but that's dealing with a different situation entirely.

    4. I completely agree with you about the issues of power imbalance involved in the divorce process, but I truly feel that the Prenup is a powerful means of rectifying that imbalance within the confines of normative halacha. When a couple choose to sign the Prenup, they are effectively telling one another that "I love you, and I always want to treat you with dignity and respect, no matter what happens in our relationship." That commitment--both at the time of marriage and if necessary, at the time of divorce--makes a powerful statement as to how we want power dynamics to play out in Jewish families.
  • I'm throwing out a few more questions, but please feel free to pose your own questions or share information that you think should be included in this conversation.

    How do we make sure that prenups are used 100% of the time? At this point in time, it seems unlikely. What about women that don't have the prenup?
  • Thank you, Keshet.  I first want to reiterate that we all must be strong advocates for the prenup and that YCT (and the IRF) absolutely mandate it for its rabbis.  It is enormously effective and we must constantly underscore and proclaim this fact.  The question is – do we stop there?  Have we fully solved the problem?


    I think the real point of disagreement here is whether the reality in the US is as you describe it.  From what I’ve heard and seen, the picture is not so rosy.  Even with the prenup, these matters can take years, and women feel abused throughout the process, and do wind up making concessions that they would otherwise not have.  I would love to hear from those who are in the trenches about what they have seen.  Has the prenup in the US not only produced a gett in the end, but also created a parity between the parties and led to a quick resolution of the issue?


    I think that additional work is clearly needed, that we can be strong advocates for the prenup while we continue to look for additional strategies and solutions.   There are still two areas that need to be worked on within the world of prenups:


    1.       Making the prenup even better than it is.  This is in line with what Rachel Levmore was describing is the reality in Israel with the Agreement for Mutual Respect – a document with no discretion and no wiggle room.  I see no reason why the prenup in the US cannot be modeled after that.   


    2.       Making it required – and I would encourage ORA, JOFA, and other organizations to actively advocate for that to be the policy in all rabbinic organizations.  I also would encourage shuls to make it a requirement of the rabbi and to put it in the contract.  Perhaps JOFA can start a list of rabbis who require prenups and shuls which demand that their rabbis use prenups.  The modelling and publicity could be very good for the community and the cause.



    Other additional solutions are more drastic but, in my mind, need to be explored.  These include the Tripartite Agreement suggest a few years ago by Michael Broyde, but actually suggested a hundred years ago by great rabbis working to solve the agunah problem.  It is a way of bringing together all the possible devices – hafka’at kiddushin, tnai bi’kiddushin, and minuy get – so that even if any one of those solutions can be critiqued, their combined force should definitely be effective.  For those who want to see an overview of some of those solutions, you can see a source packet the I prepared on this topic.    Rav Yoel Bin Nun, who recently penned an impassioned piece on the culpability of the rabbinate for not coming up with a satisfactory solution, has advocated a similar approach focusing primarily on pre-assigning a get.


    Recently, a powerful added component has been added, that of da’at and mekach ta’ut.  This new document states that if these solutions – tnai, hafkaah, etc. – are deemed to be non-effective, then the couple fundamentally does not want to enter into a halakhic kiddushin, and the whole kiddushin is b’taut.  I believe that for a lot of people there is a deep truth here – that they do not want to enter into a halakhic kiddushin that does not fully neutralize the agunah problem.   


    It is my understanding that there is a growing number of people who are using the Tripartite agreement, or some variation of it.  I have heard from multiple sources that Rabbi Riskin uses some version of it, although I have not verified those reports.  It should be noted that using a Tripartite Agreement can be done in conjunction with the standard prenup – these do not have to be seen as being in competition.


    I understand those who feel that these solutions are too radical or dangerous.  To them I would say – fine, then at least beef up the current prenup, as discussed above.  But don’t be complacent.  As long as one woman is still suffering, as long as we have not achieved total parity, we cannot allow ourselves to think that our work is done.   I would also add, that even for those who are not happy with the halakhic devices used in the Tripartite Agreement, its presence will do a lot to level the playing field.  The same way the presence of the gett – even when the husband has not threatened to withhold it – can serve to change the power dynamics of the couple in the middle of a divorce, the presence of something like the Tripartite Agreement, even if it is not used, can do a lot to reestablish balance in those dynamics.


    End of the day –if  you totally reject searching for other strategies, at least don’t sleep easy at night until the use of the prenup is required by every rabbi and until the provisions of the prenup are strong enough to truly create parity between the parties.

  • While there are certainly "good men" who sign the Prenup, there are also plenty of "bad men" who do, as well--whether because their rabbi requires it, or their in-laws demand it, or whatever reason. I have dealt with a number of situations involving domestic abuse, including physical violence, in which the Prenup worked effectively. By effectively, I mean that the get was received within about a month (at most) from the request, with NO extortion or game--playing. In one recent case, a husband who had signed the Prenup explicitly stated that he wanted to use the get as leverage for custody, but the process simply did not allow for that. The husband went into the Beth Din of America with a team of four attorneys planning to argue that he needed to use the get as leverage for custody because his wife was a terrible mother, etc. He walked out two hours later with a get given. If you know of specific cases where this did not happen, I would be very interested to hear.

    The agunah issue is not just a theoretical one, but a practical concern. For that reason, when we examine solutions we must look not only at the theoretical concerns ("Could a husband potentially do XYZ"?) but at the practical reality of what really happens. With regards to some of the proposals for radical solutions, fundamentally a solution that no one uses is not a solution. Even if it works "on paper," it has to work on the ground and conform with social realities to serve as a genuine possibility for resolution.
  • The Coen Brothers in their film "Intolerable Cruelty" have already proven that there is no such thing as a completely foolproof prenuptial agreement. So it just cannot be that the RCA Prenup, the Agreement for Mutual Respect-- or the CWJ Agreement for a Just and Fair Marriage for that matter-- is 100% effective. Indeed, the picture is not all rosy. From what I understand from fellow activists, the RCA Prenup has not created parity or resulted in quick resolution of the get. Many years pass. And concessions are made. Susan Aranoff has written extensively about this in her book the Wed-locked Agunah.

    Also, the fact that the Israeli Rabbinic Court will oversee a get when the couple agrees to divorce even though they signed the Agreement for Mutual Respect, does not mean that the rabbinic court will enforce the Agreement for Mutual Respect if both parties do not agree to divorce and one of the spouses looks for help on the basis of the agreement. There is still a lot of wiggle room in the Agreement for Mutual Respect as it is now written because it does not make it clear that enforcement of the increased spousal support undertaking, if necessary, should be in family court and not in rabbinic court.

    Indeed I agree with Rabbi Linzer that adopting a version of R. Broyde's tripartite agreement, as we have done at CWJ, goes much further in creating parity in Jewish marriage than do the more popular prenups in use. However, it too relies on a Beit Din for enforcement. And while I believe that even mainstream rabbinic courts will make use of the tripartite prenup in extreme cases (for example, if a husband is kidnapped by a terrorist organization and is almost for certain dead), I don't think most rabbinic courts will rely consistently and reliably and regularly on such a prenup to bypass a recalcitrant husband to end a failed marriage without a get.

    In order for real parity to occur in Jewish marriage, in order to neutralize the agunah problem, women must have full capacity to betroth their husbands, divorce them, and get on with their lives without having their children stigmatized as mamzerim. Rabbi Linzer, what halakhic arrangement, in your opinion, would best serve that end?
  • Realistically, both kinds of prenuptial agreements are necessary.

    The more straightforward, halakhically speaking, financial prenuptial BDA agreement or the Agreement of Mutual Respect will solve the common cases of get-refusal in a halakhic manner which is mainstream and has been working for several decades.

    However, for the cases, which unfortunately do arise, of PVS (permanent vegetative state), captured by the enemy, disappearance, etc. indeed a much more complex halakhic preventative solution is needed. Rabbi Michael Broyde's Tripartite Agreement has been translated into Hebrew -- הסכם החוט המשולש -- with additional clauses, with my assistance. It is to date, in my opinion the conditional preventative solution that has the best chance of withstanding rabbinic scrutiny when the need arises to implement it. Rabbi Broyde's article "A Proposed Tripartite Agreement to Solve Some of the Agunah Problems:A Solution Without any Innovation" is available online.

    At the moment the Hebrew agreement is available through personal request from Rabbi Broyde in the US or through me in Israel. We both require that the couple first sign the financial prenup before instructing them in the use of the הסכם החוט המשולש -- for it is vastly preferable to make use of a more simple halakhic mechanism than to venture into halakhic difficulties and possible disputation.

    Although the Tripartite Agreement has been used by individual couples for several years, thank G-d, it has never needed to be implemented. As a result it has never been "tested". It does indeed function only when the wife turns to a Beit Din of her choosing and requests a "get" on the basis of the conditions included in the document.

    There have been rabbis in Israel who have officiated at weddings with the הסכם החוט המשולש and the demand of couples is increasing.
  • Though I have already said this in previous posts, I would like to reiterate here: There is no halakhic prenup that does not have wiggle room that would allow for get abuse or might result in a classic agunah. Or, without the double negative: ALL HALAKHIC PRENUPS HAVE WIGGLE ROOM.

    When a couple comes to sign a prenup at the Center for Women's Justice, we explain to them the lack of parity in halakhic marriage today and the resulting legal problems. We also explain how different prenups try to address those problems and often recommend our prenup as the best solution. CWJ's Prenup combines the mechanism of increased spousal support--that lies at the heart of the RCA Prenup, the Mutual Respect Prenup, and the Tzohar Prenup—together with a version of R. Broyde's tripartite agreement. In addition, our prenup includes clauses that try to ameliorate the problem of halizah and mamzer. And yet, even if a couple signs our prenup, we still warn them of the wiggle room that remains. Today, we are working on yet another version of our prenup. It too will have wiggle room.

    A prenup is a legal document. Full and accurate information must be given as to the implications and risks of that document.

    No woman who marries kdat moshe veyisrael can be 100% sure that she will not be an agunah, or that her husband won't hold her up for a get, no matter what prenup she signs. I think the Orthodox community has an obligation to warn its children of the possibility of agunah and the lack of parity in Jewish marriage. We have to tell our daughters that when she marries kdat moshe veyisrael: if her husband dies, G-d Forbid, before they have children, she will be unable to marry again until her husband's brothers "release" her –"halizah"-- from their obligation to marry her. If her husband becomes comatose, is abducted, or otherwise goes missing, she will remain married indefinitely--an "agunah"-- since her husband is unable to physically deliver a get to her. If her husband turns out to be the wrong choice, she will also remain married to him indefinitely until he agrees, of his own free will, to deliver a get. This could take years and she might have to pay for her freedom. He might never agree. If she decides to have a child with another man while waiting for her get, that child will be stigmatized as "mamzer" who cannot marry another Jew (unless that Jew is also a mamzer).

    Unless we acknowledge the problems, we won't be able to correct them. And we have to be humble about the extent to which our attempts at correction actually work.

    For the record: All the women who work at CWJ are married kdat moshe veyisrael.
  • The following questions were sent in by a woman who was an agunah for a number of years:

    1. How are communities working with Bet Din's to get them to write Gets? In my experience I had a prenup went to the "local" Bet Din with a willing husband and they refused to write the Get because we had not been married long enough. It took me a year to find a Bet din that would write the GET and by then my husband was less interested in doing it. I had to resort to finding someone who owed him money to get him to act. I know of a similar situation in Israel where the man had to effectively threaten to leave on a long term business trip to get the Bet Din to write the Get in a timely fashion. These types of delays are very serious and can lead to longer term issues.

    2. You can't dismiss all those who chose not to get married. It is becoming more and more popular in both Israel and the US, it is happening and will keep happening. What can or should Rabbi's do to support this as a solution to "traditional" marriage.

    3. Eventually most women get Gets. It is important to get that Get sooner than later particularly if the woman wants to be able to have a children when she remarries. Are there statistics around how long it takes to get the gett?
  • Regarding those who chose not to get married: At CWJ we have a special prenup for those couples. In it, the couple declares their intention NOT to marry with kinyan and what should happen if a rabbinic court nonetheless imputes that their relationship is kdat moshe veyisrael, requiring a get. (It too has wiggle room. See last post).
  • I will reply to the last of the three questions by pointing out that in-depth studies are sorely lacking. There has been one survey conducted in the United States (on which the questions are centered) which attempted to determine how many agunot there are -- Results From A Study of Agunot, October 2011.
  • As our conversation will be coming to a close shortly, what should people be doing? What should responsible clergy be doing? What should those getting married to do better the situation? What should parents do? What should laypeople do? Please share your thoughts and any other closing words.
  • With regards to the first question posted, the facts seem very strange--I would need to know more about which Prenup was signed, at what time, etc.

    In terms of closing thoughts, I want to stress that we need to remember that the Orthodox world encompasses a broad spectrum of communities, all with varying religious interpretations and social norms. If we truly seek to serve the Orthodox community at large by eliminating abuse from the get process, we need to focus our efforts on solutions that have a chance of succeeding across the board, rather than only in the far-left leaning segments of the frum world. Otherwise, we might be making ourselves feel better, but we won't be effectuating real change.
  • I’d like to make some final comments about the strategies that go beyond the prenup.

    I agree with Keshet that the prenup has been enormously effective and has proven the test of time. Our #1 priority has to be making this the standard and an absolute requirement for all rabbis officiating at a wedding. And our #1b priority has to be in changing the provisions that allow for wiggle room, and in particular the lack of real financial consequence which allows for the man to schlep out the process without any disincentive or negative consequence.

    That being said – and I fear that I am repeating myself – there is definitely a need to continue to explore alternative strategies.

    1. First, I disagree with Keshet that doing this will somehow undermine the prenup or its acceptance. As long as we continue to mandate the prenup, I don’t see how this will detract.

    2. Second, let’s be honest, this is never going to become a standard in the entire Orthodox community. It is my understanding that it is currently is rejected by most of the Charedi/Yeshivish communities and I see no hope of that changing anytime soon. There are many reasons that it is rejected by large swaths of that community. Some of their poskim rule that it is halakhically unacceptable, and (I am speculating a bit here) the very fact that it is an innovation, that it requires the backing of secular courts, that it “admits” that there is a problem, and that it can be seen as an ayin harah, all combine to lead to a strong resistance which I do not think is going to change. We should not reject options just because they won’t be endorsed by everyone.

    3. Third, as Rachel wrote, these strategies can be of help in extreme cases, like PVS. So why not use them alongside the prenup? They couldn’t hurt.

    4. Fourth, and certainly not least, as Rachel also reports, they are being used li’maaseh, by a growing number of people, particularly in Israel. Many of these people would refuse to do halakhic kiddushin if they only had a prenup. If we can offer these options, and make them as robust as possible, we create more avenues for people to stay within the structure of kiddushin. The argument could be made that this will be counterproductive as it will just encourage the desire to use them, but – as I wrote – I don’t see why the greater use of these is a problem if used in conjunction with the prenup. When the time comes to use them, if these aren’t effective, the wife can just pull out the prenup and use it. We also need to recognize that a growing number of rabbis are using them. This means that if and when they ever get utilized, there will be rabbis prepared to rule based on them.

    I want to say one last thing about this, which also relates to the growing phenomenon- particularly in Israel – of people choosing to forgo halakhic kiddushin altogether. There is of course no way that I can endorse that decision. But this phenomenon might have the effect of increasing pressure for the rabbinic establishment to come up with solutions that create true parity. This could also be true of those who are using the Tripartite Agreement. The more this is done, the more the rabbis who reject its validity will feel the pressure to find additional solutions that they are comfortable with and/or to make the prenup even stronger than it is now.

    For those who don’t believe that such a dynamic is possible, especially in the world of gittin and personal status, I would point you to the source sheet that I have compiled, which in one of the early sections cites the Geonic enactment – ruled as halakha by Rambam – to force a husband to give a gett to his wife when the wife said she no longer found it tolerable to live with him. With a beit din prepared to use force, as there was in that time, this basically allowed the woman to be just as much an initiator of the divorce as the man. In other words, it created true parity.

    What was the reason for this ruling? Simply that women who were in marriages that they could not get out of would convert to Islam to be freed (by their new religion) from their previous marriages. This created enormous pressure on the rabbis to come up with a solution that would be so effective that women would want to stay within the fold. It will be interesting to see how a similar – if lest drastic - phenomenon will play out in today’s day and age.
  • For two decades, in lectures I have delivered about prenuptial agreements in general and the Agreement for Mutual Respect in particular, I would end off many presentations by saying: A couple who signs on the Agreement for Mutual Respect accomplishes three goals in one signature--
    1. A type of tikkun olam for Jewish society. For if you sign others will sign and eventually everyone will be covered. We cnnot prevent divorce but we can erase get-refusal as a blight on our society.
    2. Personal insurance just in case one would fall into the statistics of divorce. 
    3. Opening the hearts and minds of the rabbis by demonstrating to them that the Jewish family unit is not crumbling with the thousands of couples signing such preventative agreements. The rabbinical establishment will itself slowly open up to finding solutions to the agunah problem, solutions which are deeper than a financial agreement.

    Indeed, both in Israel and in the US, it is recognized that the signing of prenuptial agreements has only helped resolve cases of get-refusal and has had not brought about the demise of the Jewish family unit. At least in Israel more and more rabbis are willing to come out publicly in recommending that the prenup be signed at every wedding. In fact, in an historic step and in cooperation with the IYIM Agunah and Get Refusal Prevention Project (, the Efrat Religious Council has commenced distributing to all couples registering for marriage in their offices, the Agreement for Mutual Respect - Heskem l'Kavod Hadadi - accompanied by a letter encouraging the couples to ratify the agreement in the presence of the Marriage Registrar. The letter is signed by the four local rabbinic leaders: Rabbi Shlomo Riskin; myself and Rabbi Elyashiv Knohl (two of the team of authors of the agreement); as well as Rav Baruch Gigi.

    The same can be said about marrying on the basis of the Tripartite Agreement. If disseminated carefully and properly, machloket (dispute) can be minimized even though this is a much more complex halakhic issue. As its use spreads and as the years go by, the rabbinic world will adjust.

    On an individual level, every couple who marries כדת משה וישראל should at the very least, sign a financial prenup. Beyond that, it would be best if every couple would also make use of the Tripartite Agreement.

    All parents should be instilling in their young children--this is the minhag of our family. All rabbis should be inspiring their communities to declare -- this is the minhag of our community, thus joining together in protecting all the children of the community.

    Although this is an historic process which can take years to complete- we can take effective action right now -- sign an halakhic prenuptial agreement! Better yet--sign two!
  • Thanks again for Sharon Weiss-Greenberg and Jofa for getting the conversation going about prenups to prevent the modern day agunah.

    On a final note, I would like to point out that there are many variations on the prenup theme. Anyone contemplating a halakhic wedding should have one. But bride and groom must know that they have different options, and they should pick the prenup that best reflects their understanding of how they would like to live togehter as man and wife.

    When picking a prenup, don't forget to check out Rabbi Lookstein's, as well, of course, the lastest version offered by the Center for Women's Justice
  • This has been an interesting conversation, and a number of ideas and themes emerged. We all seem to agree that a prenup should be utilized. At the same time, we have to acknowledge that after a number of decades, many or most do not sign any form of a halakhic prenup. There are a variety of other avenues to consider exploring for those who are unlikely to marry with a halakhic prenup or for those who are in a waiting hold even with a prenup having been signed.

    There is no great way to close the conversation. I am hopeful that this conversation will become irrelevant in the coming years. That will only happen if we continue to fight the fight.

    Thank you to our esteemed panelists. Thank you for sharing your wisdom and your valuable time.