A Long-Term Solution To The Agunah Problem
Tue, 11/08/2011
Rabbi Shlomo Weissmann
Rabbi Shlomo Weissmann

An Opinion piece, “Religious Courts Are Treating Agunot Unfairly” (Oct. 28), raised a number of disturbing allegations, but failed to mention a notable exception to the practices attributed in the article to some batei din in the United States. 

The Beth Din of America, the rabbinical court affiliated with the Rabbinical Council of America and the most active rabbinical court in North America, employs policies designed to ensure that the rights and dignity of all participants in the Jewish divorce process are preserved, and that the get (religious divorce) is not improperly utilized as a tool for abuse or extortion. Unlike the practices described in the article, arbitration sessions at the Beth Din of America are recorded and comply with published rules and procedures (available at www.bethdin.org), and decisions issued by the Beth Din are subject to an internal appeal process.

Decisions of the Beth Din regarding child custody and visitation are made using a “best interests of the child” standard, and are only made in consultation with psychologists and other experts, who typically sit as members of the panel of arbitrators. And as a rule, the Beth Din of America will not issue a seruv (contempt citation) against a woman seeking a get for refusing to litigate in beit din unless the husband first demonstrates his good faith by granting her a get. 

The Opinion piece and an Editorial in the same issue, “Agunot: 462 Too Many,” that cited a study highlighting the prevalence of agunot, unfortunately demonstrate that this crisis remains unresolved and continues to leave too many women “in an emotional, legal and financial black hole.” The Editorial rightly attributes the successful resolution of many potential cases of agunot by the Beth Din of America to the use of “an RCA-approved prenuptial agreement that, going forward, has been a Salk vaccine, of sorts, inoculating young couples against this conundrum that has haunted Jewish divorce through the ages.” 

Indeed, since its introduction in the mid-1990s, the Beth Din of America prenuptial agreement, commonly referred to as “the prenup” and available at www.theprenup.org, has been used by thousands of couples. It has essentially eliminated the risk of get recalcitrance for those who have signed it.

The key element of the prenup is a provision that if, at any point during their marriage, the couple ceases to share a residence, the husband’s obligation under Jewish law to financially support his wife becomes legally enforceable at an appropriate, predetermined daily rate (indexed to inflation), for so long as they remain married under Jewish law. Practically speaking, this means that once the couple has separated and the wife has requested support, the husband becomes obligated to support his wife at the predetermined daily rate until he gives her a get. This is only logical. If a husband wishes to remain married to his wife, especially if she does not, she should be entitled to reap some of the financial benefits of that relationship.

But more importantly, the husband’s financial obligation provides a strong incentive to arrange the Get early in the divorce process. At the Beth Din of America, we have witnessed scores of cases in which the existence of a prenup has averted the use of a get as an improper tool for bargaining leverage or extortion.

Notwithstanding its success, some have argued that encouraging the use of the prenup is improper. They are worried that the joy and tranquility of a young couple on the cusp of marriage may be marred by discussions that touch upon the ugliness of divorce and the agunah problem. But such an approach is as shortsighted as avoiding discussions with new parents about the importance of obtaining life insurance, or vaccinations for their infants, because of a well intentioned desire not to ruin a joyous occasion with talk of orphanhood or disease. Such an approach threatens to prevent the widescale implementation of the most promising solution available to a problem that has proven intractable for so long. 

To the contrary, the prenup presents a valuable opportunity to teach couples a critical lesson about healthy marital relationships.  In its essence, the agreement represents a commitment to selfless behavior, a promise from a prospective husband to his wife-to-be that he will treat her with dignity not only when it benefits him, but always. By signing the prenup, a man communicates to his mate that even in the worst of circumstances he will not act indecently to exploit advantages he may possess. 

In a society where marital strife affects too many households and where divorce is an epidemic, this is a worthwhile message. There is no better time to sign a document that provides the basis for a marriage that is grounded in love and respect than in the period preceding a wedding.

The prenup represents a creative, halachic mechanism that has been approved for use by a wide range of contemporary poskim (Jewish law authorities). It is a long term, valid and viable solution to the agunah problem. Its success, like all “vaccine”-type solutions, depends on the willingness of rabbis, communities and individuals to use it.

Rabbi Shlomo Weissmann is director of the Beth Din of America.
 

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