A Jerusalem rabbinical court is making the already complicated divorce process even more inconvenient for couples who sign prenuptial agreements, according to the Hebrew website Srugim.
The Jerusalem Regional Rabbinical Court has refused to grant a divorce to a couple who signed a prenuptial agreement until the operative clause in it has been voided. The clause, put in place by the couple’s lawyer, requires the man to pay a penalty for each month he withholds a get, or Jewish writ of divorce, should the woman ask for one.
The Jerusalem Regional Rabbinical Court ruled that the clause constitutes coercion and that they are halachically unable to grant the divorce even if both parties were satisfied with the prenuptial stipulation.
Jewish law requires the man to present his wife with the divorce document, which must be both given and received voluntarily. A woman is not allowed to initiate divorce proceedings.
“If the husband shall not grant a get within 120 days of the date of the wife’s demand, the husband shall be obligated to pay alimony to the woman of NIS 10,000 a month from the date of her demand for the divorce until he gives a divorce in practice, regardless of the woman’s income from work, assets or any source whatsoever,” reads the clause.
The court’s ruling drew on both ancient and modern precedents and authorities. It states that “the parties must submit a signed agreement to the court according to which the aforesaid article is null and void, and after the approval of the agreement, there will be no further impediment to their arrangement for the get.”
The rabbinical court’s decision was only a matter of time. In July, 44 rabbis signed a proclamation stating that prenuptial agreements are a non-starter for divorce. Among them was the head of the Jerusalem Regional Rabbinical Court, Rabbi Uriel Lavi, who despite his stringent ruling in the case at hand, in 2014 granted a divorce to a woman on behalf of her comatose husband at a great political and professional sacrifice.
“This [prenup] agreement is contrary to the fundamentals of halacha and may lead to serious problems of divorce and adultery, as well as the destruction of the sanctity of family life. Such an agreement has already been rejected by the Chief Rabbinate of Israel,” wrote Rabbi Dov Lior, the former head rabbi of Hebron and Kiryat Arba, on the proclamation against prenup agreements.
Rabbi David Stav, chair of the Tzohar organization, which advocates for prenuptial agreements between soon-to-be-married couples, told The Times of Israel that many of the signatories of the proclamation were not presented with the full facts when they signed the document, and that many would likely not be opposed to halachically-oriented prenups such as those provided by Tzohar or the Rabbinical Council of America.
Still, he said, he can understand why the Jerusalem rabbinical court found this particular case problematic.
“This agreement, signed by this lawyer, was not done by a rabbi, and was actually against a few halachic principles with which some Orthodox rabbis don’t agree,” said Stav.
Ideally, a man provides a woman with the get when she requests it. However, in some cases men withhold the writ, leveraging it to extort beneficial financial and child custody agreements. In the most extreme cases, it is held hostage as an act of emotional violence with no tangible benefit at all.
“Marriage and divorce laws in this country are a major human rights violation,” Center for Women’s Justice director Dr. Susan Weiss told The Times of Israel. “Women aren’t treated equally as men – women can be in a position where they’re never divorced if their husbands don’t release them.”
Weiss advocates on behalf of women in Israel, who tend to enter divorce negotiations at a disadvantage compared to their partners. Marriage and divorce fall exclusively under the purview of the chief rabbinate, and civil divorce is not an option. The rabbinate operates according to the religious statutes outlined in the Bible and Code of Jewish Law.
There are situations in which the woman refuses to accept the get and the man is unable to divorce. However, the halachic implications for a man entering a relationship with a second woman while still technically married are significantly milder.
To circumvent all such situations, in recent years many Modern Orthodox institutions in Israel such as Tzohar and Itim, as well as women’s rights groups including the Center for Women’s Justice have endorsed the signing of prenups before couples stand beneath the marriage canopy.
These prenuptial agreements can provide additional security for the woman should she desire to exit the marriage.
Wives who are not presented with a divorce are called agunot, or chained women, and are unable to marry or enter relationships. Any children born while a woman is still chained are considered mamzerim, or illicitly conceived, and are not allowed to marry most other Jews.
In 2006, the Rabbinical Council of America (RCA), one of the largest Orthodox rabbinical organizations in the world, passed a resolution that “since there is a significant agunah problem in America and throughout the Jewish world, no rabbi should officiate at a wedding where a proper prenuptial agreement on get has not been executed.”
In Israel there is much pushback for this idea. The chief rabbi of the Old City, Rabbi Avigdor Nebenzahl, was among the 44 signatories of the rabbinical injunction against the prenups.
“A person who incites to sign such an agreement is not an Orthodox rabbi, and his halachic rulings can not be relied upon,” he wrote.
His words were reminiscent of recent comments made by ultra-Orthodox Shas MK Aryeh Deri that Modern Orthodox Jews seek to “destroy” the rabbinate and that they are “borderline Reform.” He directed his comments at Tzohar in particular.
“They [do] everything for free, [are] welcoming, lenient and all that, but we all know the truth,” said Deri.
A spokesperson for Nebenzahl told The Times of Israel that Nebenzahl was aware of the details regarding both the RCA and Tzohar agreements, and that while he could abide by the former, he rejected the Tzohar prenup out of hand.
“Rav Nebenzahl is in general against prenuptial agreements,” the spokesperson said, “but he can accept in practice the RCA prenup. Not the Tzohar agreement, which applies financial penalties without the couple going to rabbinical court,” he said.
“Our agreement and the RCA agreement rely on the same principle,” said Stav. “But we do not require the couple to go to the rabbinical court, nor is there any halachic requirement for this. This proves that Rav Nebenzahl’s opposition is purely political.”
“It’s easy for them to agree with the RCA after being called out, and to continue to oppose Tzohar,” Stav said.
It is not clear if the 44 rabbis proscribing prenuptial agreements have come up with an alternate solution to the problem of agunot.
Although data is scarce due to the informality surrounding many situations of agunah, a study showed that between 2006 and 2011 there were 462 cases in the United States and Canada. An exploration by the Wall Street Journal in 2011 claimed there were 10,000 cases, while Agudath Israel said there were 180.