Celebrating our marriage by preparing my divorce

“Maybe his pupils aren’t responding because of the sedation.”

My blood ran cold. I was sitting in the cardiac intensive care unit of Shaare Zedek hospital, at my husband’s bedside. Two days earlier, he had suffered a sudden cardiac arrest after a game of squash. Multiple shocks had been necessary to restart his heart during a prolonged resuscitation and he was now recuperating, still ventilated and sedated.

A nurse had just shined a flashlight in Leonard’s eyes, but got no response. The nurse called for reinforcements. “Can you try?” he asked a more experienced coworker. She tried, but was unsuccessful. “Maybe his pupils aren’t responding because of the sedation,” she said. Maybe. She wasn’t sure.

It was Rosh Hashanah afternoon. I had spent the morning in fervent prayer. “Please let him live! God, please let him live!” Now I had the horrifying thought that my prayers may not have been specific enough. I had only been thinking about my husband’s heart; I hadn’t thought about his brain, which had been deprived of oxygen during the arrest.

What if he never wakes up? What if he does wake up, but has severe brain damage?

I kept my fears to myself.

The next morning, my prayers in the hospital synagogue were more specific. I was no longer focused on “Who shall live and who shall die?” Rather, I had a long list of requests: “Please let him live, and wake up, and understand, and be able to talk, and laugh, and love, and take care of his patients and their families.” I poured my heart into every one of them.

Sitting at Leonard’s bedside that afternoon, in a moment when fear was stronger than hope, I found myself wondering, “Could this be the rest of my life?” What would happen if my husband remained alive, but his brain no longer functioned properly? Might I never again hear his keen insights, marvel at his compassion, and enjoy his sharp wit? Might he never again be my trusted companion, my confidante, and my source of confidence and reassurance? For the briefest of moments, there was a flash of awareness that I might never experience such companionship from anyone else either, because in Jewish law, a man who is not cognitively intact cannot grant his wife a get (a bill of Jewish divorce). In such a situation, the woman may become an agunah — a woman “chained” in marriage against her will because her husband is not able to divorce her. I banished the thought immediately and focused only on my husband’s recovery.

By the grace of God, Leonard returned to full functioning and it emerged that there had been no reason for my fears. I was reminded of them, however, a few months later, when the Israeli news reported that a groom had fallen three meters (nearly 10 feet) from a raised table on which he had been dancing at his wedding, and had sustained a serious brain injury. I prayed both for him and for his bride, a young woman who might now find herself trapped as an agunah for years. This nightmare scenario reminded me of the need to protect women from such a fate.

For this reason, last week, on our Hebrew wedding anniversary, my husband and I marked 34 years of happy and fulfilling marriage… by arranging for our divorce.

It wasn’t the first time we had done such a thing. Four years ago, on our 30th anniversary, we assembled our closest friends and family and finally implemented something we had intended to do at our wedding: we signed a halakhic agreement that protects a wife from being chained in marriage if her husband refuses to grant her a religious divorce. Such a provision was imperative for me because in my youth, I had witnessed a close relative trapped in a loveless marriage because her husband refused to free her; as a result, I had promised myself that when I married, I would take steps to ensure that the same thing couldn’t happen to me. When the time arrived, although I was sure that the man I loved would never put me in such a situation, it was important to me as a matter of principle that my religious marriage incorporate some kind of protection against get-refusal. And it was important to Leonard as well.

In the late 1980s, however, protecting women from get-refusal was not a simple matter in the Modern Orthodox world in Israel. The “Lieberman clause” added to marriage contracts in the Conservative movement was not accepted in our community, and there were no easily found alternatives. When friends pointed us to a document by Professor Ze’ev Falk that was said to be halakhically acceptable, our officiating rabbi agreed in principle that the document would be signed at the groom’s reception before the ceremony. On the morning after the wedding, however, I discovered that the document had never been signed, because our officiant wasn’t able to figure out how to execute it in practice. “Are we actually married?” I asked Leonard in a panic, concerned that our nuptials weren’t valid because I had thought they were being conducted under a condition that was not met. A quick call to his rabbi assured us that we were, and we set out on married life.

Over the decades that followed, as Jewish women continued to be chained in dead marriages for prolonged periods of time, the suffering of agunot (the plural of agunah) continued to haunt me. When halakhic prenuptial agreements designed to protect women from get-refusal became more accepted in the Orthodox community, Leonard and I felt strongly that signing them should be required in all Orthodox marriages, and we regretted that we had never signed one ourselves. So on the eve of our 30th anniversary, we gathered friends and family in our garden, reaffirmed our love for each other, appointed witnesses, and signed a halakhic post-nuptial agreement in the presence of a lawyer. Although we knew that signing the agreement after marriage did not have the same force as signing it before, we signed it nonetheless, as a statement of our values and as a teaching moment for our sons. I had also planned to write about the experience in order to advance the cause. “Getting married? GET protected,” I would assert. “Are your children getting married? Make sure they sign a halakhic pre-nup,” I would implore. “Already married? Sign a post-nup,” I would advise. But life got in the way, and my earnest entreaties never made it into black on white. Until now.

The halakhic post-nup that we signed on our 30th anniversary was a version of the pre-nuptial Agreement of Mutual Respect, which has been in widespread use in Israel for years and has been adopted by the Rabbinical Council of America (a revised Hebrew version of that pre-nup can be found here). Usually signed before marriage, the document includes financial sanctions that are designed to prevent situations of sarvanut get (get-refusal), when a recalcitrant husband does not want to give a get, by making a marriage that continues long after one partner has asked for a divorce very expensive. (Similar mechanisms can be found in the pre-nuptial agreements of the Center for Women’s Justice, the Beit Din of America, and Tzohar.)

Financial incentives, however, cannot remedy the plight of an agunah who remains chained in marriage because her husband is not able to grant her a divorce because he is in a permanent coma, captured in war, intellectually or mentally incapacitated, missing, or presumed dead with no halakhic proof. For such situations, the Pledge of Compassion and Dignity was developed. In signing this halakhic bill of agency, a husband gives power of attorney to any three rabbis with ordination from the Israeli Rabbinate or the Rabbinical Council of America, enabling them to serve as his proxy, and grant his wife a get on his behalf if he is unable to do so himself. An initiative of the Center for Women’s Justice, this “Shtar Bitachon” (Bill of Security), which can only be signed after marriage, was formulated with the halakhic input of Rabbi David Bigman, Rabbi Yoni Rosensweig, and Eshet Halakha Malka Puterkovsky, and received the blessing of Rabbi Shlomo Riskin. (An extensive Hebrew explanation of the halakhic rationale behind this document by Rabbi Yoni Rosensweig can be found here.) It was this document that Leonard signed last week on our 34th anniversary.

While the signing of our first post-nup was at a festive affair, where we gathered friends and family and both signed a mutual agreement that we did not think would ever be needed, the signing of our second post-nup was a more sobering experience. This time, we were keenly aware of how close we had come to the tragic circumstances in which such a document could actually be needed. We quietly convened two kosher witnesses in the privacy of our dining room. They listened attentively as Leonard explained why he was signing the document, saying:

I believe that marriage should be an expression of a vibrant and interactive relationship between two partners. But sometimes life can take a tragic turn, and one of the partners can become physically or mentally incapacitated to the point of not being able to participate in that relationship in a meaningful way. A person might also go missing, fate unknown. In these circumstances, the other partner can find themselves trapped in a legal logjam, locked into the empty shell of a marriage that once existed, but no longer does. I believe that in such a circumstance either party should have the right to decide whether they want their married status to continue or to end, and that it is absolutely legitimate for one partner to decide that they want to rebuild a future for themselves by remarrying. I am a person who is bound by Jewish law and see my marriage as defined by Jewish law, and I think there should be a halakhic mechanism to deal with such a circumstance if it were to arise. As a man, I have access to such a mechanism – a “heter meah rabbanim” (a permit signed by 100 rabbis that allows a man to take a second wife). But my wife doesn’t have such an option. I am signing this document as a member of a halakhic community and out of a desire to strengthen that community, and hope that by doing so, and by Shira writing about it, other couples will become aware of the relevance and existence of this type of insurance policy, and other men — soldiers in combat units, men facing major surgery, and anyone who simply ventures across a street — may be inspired to sign it as well.

My two anniversary post-nups were signed in the spirit of love, camaraderie, peace, and friendship that are meant to characterize Jewish marriage. They were signed in the spirit of the ketubah, the traditional Jewish marriage contract, which celebrates marriage while including provisions for divorce. They were signed in recognition of the fact that a system that was once meant to protect women sometimes falls short of that goal and can be a source of great human suffering. Leonard and I hope that the clauses in our post-nups will never be relevant and that we will continue to celebrate our anniversaries in love and good health until 120. We can only pray that in our lifetime, consensus will emerge in the Orthodox world about a package of protection — whether in the form of pre-nups, post-nups, or any other solution — that will make get-refusal and the suffering of agunot relics of the past.

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It should be noted that The Center for Women’s Justice, Kolech, and Mavoi Satum recently launched a campaign promoting the signing of a “Bill of Conditions” (“Shtar Hatna-ah”) that is to be signed prior to marriage in addition to any of the existing halakhic prenups that prevent get-refusal, in order to address tragic situations in which husbands are not able to grant their wives a get because they are in a permanent coma, missing, captured at war, or have been declared mentally unfit to issue a get. That “shtar” should not be confused with the “Shtar Bitachon” described in this blog post (which can be found in Hebrew here and in English here), as the Bill of Conditions is signed by both partners prior to marriage rather than by just the husband after marriage, and it works on a different, more controversial, mechanism: it inserts a condition in the marriage (a tnai b’kiddushin) that voids the marriage retroactively if a couple does not live together for 18 months and one of the parties has asked a rabbinic court to execute the bill. The Bill of Conditions is endorsed by Rabbi Prof. Daniel Sperber, and is being presented as a solution for extreme cases of get-refusal as well.