30 Years After the Introduction of the Halachic Prenuptial Agreement: An Interview with Rabbi Michael Broyde

In 1994, Rabbi Mordechai Willig helped draft and circulate a monumental document in the Orthodox community to address the agunah problem, best known as the Beit Din of America’s halachic prenuptial agreement (BDA prenup). Rabbi Michael Broyde, Professor of Law at Emory University School of Law, was centrally involved in the project and published several articles about the document, helping the document gain greater acceptance.

Thirty years later, the halachic prenup is widely used in most Orthodox circles and, according to Rabbi Broyde, has made a significant dent in the number of agunot in the community.

I had a chance to interview Rabbi Broyde, who reflected on the origins of the document and how it evolved – and what the future may hold for the halachic prenuptial agreement.

Below is a transcript of my interview:

What prompted you and your colleagues to begin working on a halachic prenuptial agreement in the first place? Was there a particular case or trend of agunot that made you realize a formal document was needed?

This was not me or my colleagues, in all honesty. It was the hard work of Rabbi Mordechai Willig, who drafted the initial set of documents and got that letter endorsed by Torah giants in Israel and in America. This was done with the support of the Orthodox Caucus and Sheldon Rudoff, a great lay leader who passed away too young. It is all to Rabbi Willig’s credit, in reality. But the core of the idea – that a husband shall support his wife until a get is given — is not a new one, and it was not Rabbi Willig’s idea, either – the Nachalat Shiva notes this centuries earlier. His grand insight was to make that Jewish idea binding as a matter of secular law. It was the process used for centuries by rabbinical courts in ancient times. The abandonment of any structured community in America and any rabbinical court with real jurisdiction is what had created the agunah problem in America (along with secular divorce), and a binding agreement of any type solves this problem.

Can you describe the process by which the original halachic prenup took shape in the 1990s? Who were the main figures involved, and what halachic sources or precedents guided your work?

This is an old problem. The historical solutions were in the context of a beit din that has authority over the parties … and when it did not, to use support agreements. The support obligation is a way to give any bet din the tools to order the husband to give a get by ordering him to pay. The solution – a binding arbitration agreement to go to beit din and allowing the beit din to order the husband to pay until a get is given — is a very wise and interesting way to do this which is consistent with both American law and Jewish law and takes advantage of both the ability of the Federal Arbitration Act [FAA] and Jewish law to solve ritual problems with a contract. Jewish law tends to like to use contracts to solve ritual problems; consider heter mechira, the sale of chametz, prozbul, shtar Shabbat, and much more (https://michaelbroyde.com/wp- content/uploads/2023/08/oxford_con_law_journal_broyde_pna.pdf).

What were the primary halachic obstacles that had to be overcome to ensure the halachic prenup would be valid and enforceable within Jewish law — and how were those concerns addressed?

The halachic prenuptial agreement works by not ordering a get, but by ordering a payment as support until a get is given. To the extent that I had any novel ideas in this process, it was that by bundling these two ideas together, one could create a single agreement that requires support by the husband and submission to a beit din at the same time. The original agreement did not integrate perfectly, and this helped smooth out the integration process.

How was the prenup initially received within the Orthodox rabbinic world when it was first introduced? Were you surprised by the early reactions — either support or opposition?

Everyone wants a solution to the agunah problem, and this document changed the solution to the agunah problem by directing that the parties agree to a process before they are married, never mind before they are fighting about divorce. It was accepted quickly, and the sociology that opposes it does not do so on firm technical halachic grounds, but on social grounds – a fear that speaking about divorce will increase the divorce rate. Or just the fear of implementing anything new.

The halachic prenup has evolved since its initial version. What major changes or refinements have been made over the years, and what issues prompted those adjustments?

The grand change was the integration of the support agreement and the binding arbitration agreement. That was very important, and it was designed to make both agreements more effective. Other small changes have been introduced as well, including an agreement designed to work uniquely in California and more, but none were as major as the integration of the two original documents.

The Rabbinical Council of America and the Beit Din of America have strongly endorsed the prenup. What role did these institutions play in legitimizing and disseminating it across the Orthodox community?

Very important.

From your perspective, how successful has the halachic prenup been in reducing the number of agunot cases? What evidence or data best illustrates its impact?

I think it works very well in nearly all cases, and everyone should use it or some form of it. It does not work in cases where the husband is incapacitated or missing, which is a weakness. But on the whole, it is a powerful agreement that everyone should use. The groups that oppose the use of the halachic prenup do so either because they are ideologically searching for a perfect solution that solves the equality problem or because they think that imbalanced divorce is good since it deters woman from seeking divorce. Neither are part of the Modern Orthodox ideal. Indeed, to a great extent, there is no (or virtually no) agunah problem in the community that uses the Beit Din of America’s halachic prenuptial agreement.

There’s still some resistance to the prenup in parts of the Haredi world. What do you think are the main theological or communal reasons for that hesitation — and do you see a path toward broader Haredi acceptance?

I am not sure. The brutal truth is that opposition to the halachic prenup empowers a few different camps, none of which I really want to be part of: (1) those in the community who want to torpedo the prenuptial agreement and not permit any effective solutions to the agunah problem since igun deters divorce. (2) those in the community who claim that pre-nuptial agreements don’t really solve the real and true problem since established poskim refuse to accept any progressively minded solution to the agunah crisis, (3) those who claim we need a wholesale change in the halachic process and we should not seek a consensus solution.

Have similar halachic or legal mechanisms been adopted in Israel or other countries? If so, how does the American version differ in its structure or application?

Israel does not need an agreement of this type at some level, since there is no secular divorce in Israel. Other nations have different arbitration laws that make such agreements harder. This might be an American solution to an American problem relating to secular and Jewish divorce.

What are the halachic and legal implications of a halachic postnuptial agreement? Can it have the same power and effectiveness as a prenup, or is it simply a way for married couples to show support for the halachic prenup?

In most states, a postnuptial agreement is a valid arbitration agreement. In some states (Ohio, I think, and a few others) it is not, and in some states, it is only valid if signed in situations of marital stress. This is a technical question of American law about consideration in marital contract law. A postnup is certainly binding as a matter of halacha.

What would you tell an engaged couple who have reservations about signing a halachic prenuptial agreement because it’s unromantic?

I would say one, or two, or three or two things, depending on the couple. First, in our modern American society, where divorce is common, it is unwise to not consider the possibility of divorce when one marries. Second, even if you think your marriage could never end in divorce, it is valuable for the Torah community to have all sign. Third, if you are asking me to do the wedding, I do not perform weddings for Americans without a halachic prenup.

What are your thoughts about the Rackman Beit Din and Krauss Beit Din that utilized non-traditional methods to invalidate kiddushin and free an aguna?

Attempts to end some number of marriages through the tool of “kidushai taut” is a good idea in theory and was used by Rav Moshe Feinstein, zt”l, and his leading students, such as Rav Nota Greenblatt, zt”l, and others, including Rabbi Gedalia Dov Schwartz, zt”l, the late great av beit din of the Beit Din of America. It should be used in some cases to solve some situations of igun. My experience (which is just anecdotal and might be wrong) is that only about 5% of marriages that end in divorce had a serious and unknown defect in the man present. I outline that approach in this article (https://www.broydeblog.net/uploads/8/0/4/0/80408218/error_in_the_creation_of_marriages_in_modern_times__2003_.pdf), and I fully endorse that approach when it is factually correct in the context of any particular situation and a get cannot be given.

Four conditions must be met to have an effective kidushai taut:

1) The woman must discover a serious defect, one that she certainly would not have married her husband with, to be present in her husband after they have been married;

2) The defect must have been present in the husband at the time of the marriage;

3) The woman must have been unaware of the defect at the time of the marriage; and

4) The woman must discontinue marital relations with her husband either immediately or very soon after the discovery of the defect, so as not to ratify the defect as acceptable.

It is complicated in practice, for sure. In cases that meet these conditions, the marriage is void under Torah law, and if a get cannot be procured, it is possible that the woman can remarry without a get. These are not simple cases, and attempts to expand this to include cases where the defect developed after the marriage started and were not present at all at the time of the marriage are inconsistent with halacha. A serious posek is needed for such matters.

Rabbi Rackman was a great man who was a role model to me on many matters. No one is correct all the time, although Rabbi Rackman was always a perfect human being in his middot, a brilliant person, and a model of stellar Torah next to stellar madda. He was also and an exceedingly nice man who modeled chesed (https://hirhurim.blogspot.com/2008/12/on-death-of-giant.html).

In the case of a recalcitrant husband who did not sign a halachic prenup, what do you recommend that rabbis, communities, and individuals do to force this person to give his wife a get?

Anything they can do that can potentially be effective. This is also a teaching moment to remind people to sign a prenup . As I wrote many years ago, “The PNA is the vaccine against the agunah problem. But, like all vaccines, it has to be used before one has the illness – taking your vaccine after the fact never works…. When every marriage is vaccinated against the possibility of the woman or man being an agunah, agunah matters will go the way of smallpox – it will functionally disappear as a problem even as we actually have no cure. A well-done vaccine is as good as a cure. We all know this. Marriages without such agreement produce cases of agunahs – no different than children without vaccinations get polio.”

I should add that this is not the same as a case where a couple does not have a prenup, and the husband agrees to give a get when the civil divorce is done, which I view as a reasonable view given the absence of a halachic prenuptial agreement.

Do you recommend those getting a divorce to get a civil divorce before a get is signed, or vice versa?

I think that if both parties agree that the marriage is over and they both want to be divorced as a matter of halacha and secular law, they should do both as soon as they can. In almost all real-world situations, a second halachic marriage should not be done until the first marriage is ended, as a matter of halacha and secular law.

What do you envision for the next stage of the halachic prenup movement? Are there new legal models or communal initiatives that might further strengthen protections for women seeking a get?

This is a complex question. The current document is driven by both an understanding of Jewish law that will not change (and which is correct!) and by American arbitration law that might change. I am very worried that changes in American arbitration law will make the Beit Din of America’s halachic prenuptial agreement less valuable, but who really knows. American arbitration law might be changing. Who knows. Writing a better agreement halachically is almost impossible. Any agreement that runs independent of American law will be on weaker halachic grounds, for sure, absent a firm chief rabbinate with quasi-governmental authority, which is exceedingly unlikely to happen in America. But if American arbitration law changes enough, that would be very bad for the halachic prenup. I see no better real solution for America now. Could we imagine a restructured community with a different solution? Maybe. But it’s not likely.