Over the last few months there has been an acute awareness-raising campaign about the Agunah crisis in large part because of the ongoing work of ORA, a network of grassroots organizers as well as a group of “influencers” on social media who are using their platform and channeling their energy (as featured in a fabulous article in Vogue magazine) to bring attention to this issue. On the one hand, the results have been impressive as a number of women who had been held captive by their recalcitrant husbands finally received their get — freeing them to live as single women or providing an opportunity for them to remarry. On the other, the fact that social media and secular news sources are driving the cause and not the men who de facto remain in control and who should care most and/or who pretend this crisis doesn’t exist serves as a source of shame. But use of these forms of media shouldn’t have to become the default model to free women who a) have been waiting years to receive their get and b) have to agree to make a private matter quite public. It also isn’t necessarily a sustainable model and won’t result in systemic change on its own.
In past years there have been several Jewish legal approaches from across the Jewish denominations to ameliorate the plight of Agunot. Some are aimed at freeing Agunot (more accurately known as mesuravot get) such as the Reform Movement’s CCAR Resolution on Recalcitrant Husbands. More importantly, an independent group of Modern Orthodox community rabbis and community leaders established the International Beit Din (IBD) which offers the greatest hope to Agunot. Unlike other batei din, the IBD doesn’t tolerate extortion during the get process and utilizes halakhic tools to free women. Others, like the Conservative Movement’s Lieberman Clause and the Beit Din of America’s halachic prenup are trying to serve as preventative measures. In this essay, I want to focus on the halakhic prenup since it has gained the most traction and received the most attention across the Orthodox spectrum – and also because too many people erroneously believe that the halakhic prenup alone can serve as a remedy for Agunot.
When I got married in 1999, my husband and I signed the halakhic prenup to help create precedent and because it felt important. But now I find myself second-guessing the reliance on the halakhic prenup as a fool-proof preventative measure. Not because the prenup in and of itself is flawed — though I do recommend seeking an attorney’s advice before signing any legally binding document. Indeed, I know people who have availed themselves of its legal provisions. And as far as prevention goes, just having the conversation about signing the prenup can be both an indicator of a partner’s abusive behavior, and serves as an important tool to raise awareness about domestic violence that is synonymous with get abuse.
The second-guessing comes from a three-fold realization.
The first is that we have come to let the good be the enemy of the perfect. By standardizing the use of the halachic prenup, the Orthodox community has tacitly – and explicitly – agreed that it is ok, or even preferred, to rely on civil courts to help adjudicate something that has until now fallen squarely under the jurisdiction of religious courts. Orthodox Jews abide by a system where we are demanded to put our trust in (male) rabbis who have continually failed to explore and enforce halakhic provisions that are intended to protect and free women from abusive marriages. The halakhic prenup does not necessarily prevent a woman from being an Agunah and it does not help those who have not signed it at all. Accepting the halakhic prenup as a tool to help dissolve marriages has become “good enough,” instead of implementing systemic halakhic approaches to prevent a woman ever gaining Agunah status and/or to free Agunot.
The second is the realization that too many of our rabbis lack the will or the courage to implement halakhic thinking and apply halakhic tools to free women from abusive marriages. Halakha provides a number of loopholes to invalidate a halakhic marriage (which is seen as a transactional contract) to include lack of kosher witnesses under the chuppah, an officiant who is not Torah observant, and failure on the husband’s part to disclose a major flaw (mum gadol) resulting in a marriage under false pretenses (kiddushei taut). Any person can choose to be more stringent, but it takes a knowledgeable and creative legal thinker to be able to apply legal solutions to legal problems. It is a painful realization that by refusing to factor in any of these considerations, so many rabbis have walked away from the Jewish legal system they purport to uphold.
The third realization came about when I looked at the landscape. The unfortunate truth is that get abuse disproportionately negatively impacts women from Orthodox communities. The system that keeps women trapped in unwanted marriages is controlled by Orthodox men. In contrast, the organizations that work to free Agunot are for the most part, run by women professionals. To draw a comparison, just as it is neither fair nor efficient to have Jewish people address root causes to prevent antisemitism, the responsibility to find and implement solutions to bring an end to the Agunah crisis once and for all should not have to fall on women. And yet, all of the labor – emotional and intellectual – has fallen on women.
We have a halakhic system – one that must be executed properly to be fair and equitable. And those within the ranks of the Orthodox community who are shouting the loudest, those who say they care about halakhah and halakhic values cannot and must not continue to remain silent or feign helplessness while countless women lose out on the opportunity to live their lives freely.
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