For many potential agunot halachic prenups indeed break their chains

There was a polio scare recently in Israel. Following the discovery of the deadly virus in the sewer system of several cities, thousands of parents were encouraged to boost their children’s immunity through the administration of the oral inoculation. Indeed, cooperation was sweeping and no cases of infection were reported. No voices were heard that the polio inoculation was ineffective since 100% of the population did not use it. There was no mistaken conclusion due to the presence of the virus that the polio vaccination is ineffective.

In juxtaposition to the healthy reaction to the need of prevention of the polio disease, in a recent article by Talia Lavin of the JTA faulty reasoning was employed to give the impression that since many marrying Jewish couples do not choose to protect themselves from the agunah blight by signing a prenuptial agreement, it does not work. Lavin’s writing is disappointing, to say the least. Instead of encouraging all Jewish communities to employ the only preventative solution to date that has proven to be effective, the result of her article is to leave Orthodox women without any protection.

Of course, deeper halachic solutions aside from the prenuptial agreement for the prevention of get-refusal have to be instituted. I, for one, surely am aware of that since I am actively engaged in such development and practical application. However, it is irresponsible, to say the least, and harmful to dismiss the widespread use of the halachic prenup. Both in the United States, in the form of the Beth Din of America’s Binding Arbitration Agreement (http://www.theprenup.org/), and in Israel through the Agreement for Mutual Respect – Hesekem L’Kavod Hadadi (http://www.iyim.org.il/agunot/?id=354), it has worked every time – a get was given by the husband after his initial refusal to do so, spurred by the agreement. Rabbi Jeremy Stern, an expert in the resolution of agunah cases as the Executive Director of the Organization for the Resolution of Agunot (ORA), provides an explanation of why it works in a response to the JTA article:

If one were to apply the logic of Talia Lavin’s article on halachic prenups (“For many agunot, halachic prenups won’t break their chains” Nov. 27 2013) to road traffic safety, one would conclude that airbags and seat belts are ineffective measures in preventing fatalities on the road. Just as some people got married before the invention of the halachic prenup and others continue to marry without it, so too some older cars were built without airbags and not everyone buckles up. So why tout the effectiveness of such safety measures?!

What Ms. Lavin did not include at all in her article, despite our extensive conversation on the topic when she interviewed me, was the fact that we at the Organization for the Resolution of Agunot (ORA), as well as the staff at the Beth Din of America, have found the halachic prenup to be 100% effective in assuring that a get is given unconditionally and in a timely fashion. While we have seen over 500 cases of get refusal, we have yet to see a case where a properly signed halachic prenup did not work, whereas we have seen several cases in which it did ensure the timely and unconditional issuance of a get. In almost all cases in which the halachic prenup is invoked the case never reaches the civil courts because the husband knows that he would be fighting (and paying for) a losing battle. That is undoubtedly a win. We do not need more test cases like Rachel Light’s to prove that the prenup works, because very few husbands are so self-defeating that they would challenge the civil validity of the prenup when they have every reason to believe that they will lose and pay dearly for it.

Ms. Lavin’s article argues that the halachic prenup is unsatisfactory as a solution to the plight of agunot because it is not utilized throughout the Orthodox world. The fight for Tamar Epstein’s freedom, which made international headlines two years ago, spurred widespread interest throughout the Modern Orthodox world in the halachic prenup. Now, in light of Gital Dodelson’s case, which has shocked the Orthodox world writ large, we are starting to see significant interest beyond the Modern Orthodox community in implementing the halachic prenup. Rather than be discouraged, now is the time to redouble our efforts in standardizing the use of the halachic prenup at every Jewish marriage!

Since Ms. Lavin did not include it in her article, I would like to delineate the reasons why we have seen the halachic prenup to be so effective:

1. As a binding arbitration agreement to the Beth Din of America, it eliminates the forum-shopping between different batei din which is a tremendous source of frustration and game playing when trying to determine where, under what circumstances, and under what conditions, a get is issued. At ORA, we have encountered countless cases where women spend years without a get because the two sides cannot agree on a beit din.

2. The enforcement mechanism creates a burdensome financial disincentive for a husband to refuse to give a get. Even for extremely wealthy couples, if they are battling each other in a contentious divorce (in which couples fight over nickels and dimes) then the obligation of paying his wife $55,000 per year will weigh heavily on a recalcitrant husband. I will note here that this financial obligation is above and beyond anything that the wife would otherwise be entitled to in Jewish or civil law. Thus, her waiving her rights to that money in exchange for the get is not extortion, but rather using the agreement to do what it is supposed to do: take the get off the table and ensure that all other contentious issues of the divorce can be addressed on their own terms.

3. With a halachic prenup, a woman is able to pressure her husband to give her a get early on in the divorce process, before he becomes entrenched in his stance of get-refusal, and before other contentious divorce matters are settled (when he may try to use the get to reverse settlements or decisions that are not entirely to his liking).

4. Putting aside the civilly binding element of the prenup and enforcement mechanism, with a prenup a groom signs his name that he will do the right thing and promptly give a get in the event of a divorce. Few people like to be called liars. Additionally, the psychological commitment that the husband has made at the start of the marriage may impact his attitude with its dissolution.

5. The refusal of a prospective groom to sign a halachic prenup can serve as a red flag to a prospective bride of controlling and abusive attitudes which her fiancé possesses. This should alert her to the fact that he may not be someone with whom she should bind herself in matrimony.

We may find that the halachic prenup will not work in every single case. But, so far, it has, and we anticipate that it will work in nearly all cases. While every agunah case is a tragedy, if we can prevent the vast majority of such situations we will have done a tremendous service to our community, and, most importantly, to our sisters, mothers, and daughters.

Rabbi Jeremy Stern

Executive Director, ORA