No More Agunot: Halakhic Prenups for All Couples

Soon we begin the festivities of Purim. The streets of Jerusalem will come alive with colorful characters of all different styles, and savory hamantaschen of a variety of fillings. The contagious excitement is inescapable to passersby of all different stages of life, as we celebrate the salvation of the Jewish people from the evil decree of Haman. Prior to these celebrations, we fast in commemoration of the Jewish nation who once fasted together with Esther just before she risked her life in hopes of saving the nation from the devastating decree of annihilation. Today, this fast day of Esther holds another meaning; one that hits home in the Jewish world today.

In 1990, Ta’anit Esther, fast on the eve Purim, was established as an international Agunah day to identify with the multitudes of Jewish women all over the world who are chained to a loveless marriage and live in fear of their spouses. The Fast of Esther was chosen because Esther, although for a greater self-sacrificial purpose, was chained to a marriage and lived in fear of her husband, King Achashverosh. Just as the people united in fast for three days prior to Esther’s daring act of approaching the king without permission, we once again unite, but this time in festivity, all over the world to celebrate Purim. Agunah day is another opportunity for the Jewish nation to unite behind the women of Israel and to stand up against the devastating decree of get refusal, in hopes that one day the suffering of agunot will be a distant memory.

After being “chained” as an agunah for almost ten years, Tamar Epstein’s unconventional annulment of her religious marriage to Aharon Friedman and remarriage to Adam Paul Fleischer have riled up the Orthodox world. Divorce rates have risen for years in modern society, but divorce in the Jewish world could have serious societal and communal consequences if not executed in accordance with Jewish law. The halachic status known as Agunah – whereby a woman is religiously “chained” to marriage due to her husband’s refusal to grant her a get – is no farfetched phenomenon either. Yet, no one seems too unnerved by all the young, happy, Jewish couples bonding in holy matrimony without having signed a prenuptial agreement that could prevent such tragic situations as that of Tamar Epstein and many other “chained” Jewish women.

In the event that a husband refuses to give his wife a get, divorce papers required by Jewish law, the woman becomes “chained” to her marriage and cannot remarry until she receives those papers. Were she to remarry regardless, Jewish law would not recognize the marriage, and any children from the marriage would be considered Mamzerim – bastards who would be unable to marry within the Jewish world. Signing a prenuptial agreement legally entrusts a Beit Din to render a binding decision regarding the giving of a get. This agreement also sets up rules in the form of required monetary provisions so that negotiating a divorce in a civil manner is in the interest of both spouses and prevents the possibility of a get refusal. This type of agreement is a fairly modern solution to the Agunah problem in the Jewish world. As recently as 2006, the Beth Din of America passed a resolution that every officiating rabbi should require every couple to sign a proper prenuptial agreement prior to the wedding ceremony.

It is intolerable that the Jewish world has yet to establish the institution of a prenuptial agreement as a societal norm. The halachic prenup, which protects a couple going into their marriage from the harshest of possible outcomes, should be just as common at Jewish weddings as is white bridal gowns. The reality is that some of us will inevitably go through divorce. Hopefully, no one will have to suffer bitter years of refusal to receive a get from her former spouse, or, likewise, the acceptance of a get from his spouse.

It comes as no surprise to me that young, happy couples are not too inclined to sign a prenuptial agreement. In a world of Instagram and Facebook, everyone is looking to portray the dream life come true – the happy smiles, the fun and free-spirited friends, the perfect vacations, and the charmingly romantic significant other. The bitter reality of a prenuptial agreement has no place in that world, the reality of today’s younger generations. “It won’t happen to us” is the thought that crosses through any couple’s mind while in the honeymoon phase. “Young-and-in-love” is a beautiful and exciting phase to be in and signing a prenuptial agreement should not be perceived as staining that.

No one thinks that vaccinating one’s child against life-threatening diseases is a disgrace or a negative statement about their child’s wellbeing. Quite the contrary—just as vaccinations were a breakthrough preventative measure against life threatening-illnesses, so too prenuptial agreements are a breakthrough solution to the devastating reality of religious divorce refusal. We, as a community, have the obligation to protect our children, family, and friends by creating a world in which every couple shows their undying love for one another in the truest of ways – by signing a prenuptial agreement to ensure that they never take away the other’s right to pursue happiness. In contrast to the untraditional and widely unaccepted loophole presented to Tamar Epstein, the prenuptial agreement is a recognized and approved solution by all halachic authorities that could prevent ever reaching a situation such as hers. Tamar and many other “chained” men and women could have been freed long ago had we, the people, ensured that they signed prenuptial agreements.

About the Author
Miriam Moshovski is student at Shalem College in Jerusalem.
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