Maybe you’ve seen the pictures. Women, looking somber, face the camera, holding a sign. One reads, “I am an agunah 2+ years and counting.” Another simply says, “14 years.” Some women show their faces; a redhead sits cross legged on the floor, looking bleakly into camera. Others don’t, and we see only the edges of a jean shirt, a sign that declares, “1 year, during which I gave birth, alone,” chipped turquoise nail polish on fingers that grip the paper. Each sign ends with the same words; #NoMoreChains.
These women are—or were—agunot; “chained women,” whose husbands have refused to grant them a get, the halakhic writ of divorce. Activist group Chochmat Nashim posted the agunot pictures on their Facebook page, stating in the description accompanying the photos that the aim was “to recognize their first-person narratives as valid, relevant and not shameful. The campaign literally puts faces to the stories and humanizes the statistics.”
“When a legal system has made an unintentional loophole which has enabled disgusting men to abuse the system, when we’ve reached that point, it’s up to the system to fix that problem,” says Sarah Robinson, a student in the Graduate Program in Advanced Talmudic Studies at Stern College. A solution to end the epidemic of chained women was indeed suggested; the halakhic prenup, but the document has remained stigmatized and faces a tough road to acceptance.
The halakhic prenup is “a binding arbitration agreement,” says Keshet Starr, a representative from The Organization for the Resolution of Agunot (ORA). Couples choose a Bet Din to mediate—should they need it—where they will iron out any issues accompanying the divorce, like custody. One of the most important features of the prenup is the financial per diem, typically one hundred and fifty dollars per day. This penalty stems directly from the ketubah itself, in which the husband promises, “I will…support you in the custom of Jewish men, who…support their wives faithfully.” Food, clothing, sex; all basic needs of the woman are “due… according to law.” This means that, even if a couple is separated, the husband still owes support to his wife, as stipulated by the marriage contract itself. The prenup pins a number and means of enforcement to this requirement; “I hereby now obligate myself to support my wife…at the rate of $150 per day…in lieu of my Jewish law obligation of support so long as the two of us remain married according to Jewish law.” Starr says this agreement creates a “financial disincentive” to withhold the get. The financial per diem doesn’t necessarily apply across the broad spectrum of cases; for wealthy men, the sum might be too small to really affect their bottom line.
Still, the prenup provides a means of enforcement that the Bet Din alone simply can’t provide. Since the prenup is, at its core, an arbitration agreement, the courts can become involved, taking over the distribution of assets to the wife, with the civil law of the land stepping in to enforce the halakhic obligation. Robinson says this is “just a product of what it means to be living in America, where the courts can’t otherwise get involved.” This is in contrast to Israel, where civil courts can uphold halakha; get deniers there can be thrown in jail.
A bigger problem than available assets, though, is the public perception of the prenup. Some have claimed that the prenup’s negative reputation is a sign of further disempowerment of women by the Orthodox establishment. Though it’s true that women are the face of the pandemic, Robinson says this is really “less of a feminist issue and more of a couple’s issue. It happens to be that in the majority of the cases it helps protect the woman, but this is protecting each other.”
Robinson feels that the negative views of the prenup are twofold; firstly that “there’s a huge stigma in acknowledging that something might not be perfect. It’s this image that everything is just so, we have our nuclear families and [it’s] mehadrin min hamehadrin. To say that there’s something scandalous about our community is anathema.” In addition to the desire for a white picket fence sort of public image, Robinson says the second concern is about “halakhic accuracy, the most supremely important thing to their lives.”
The public’s main concern seems to be that the halakhic prenup constitutes a forced writ of divorce (a get me’useh)—something which the Mishnah forbids, and which would render the divorce null and void. However, the prenup’s whole aim is to avoid this problem, not exacerbate it. The document itself is about separation, not divorce. The hope is that it will become too expensive to be merely separated, and the man will grant a divorce, but that the divorce comes from the man himself. Prior to that, he is merely fulfilling his obligation to support the woman who remains his wife, still chained to him.
One such shackled woman was Chaya Tal. When I spoke with her, she had returned that very morning from Israel, where she’d just been granted her get after two years. Tal says that one day, her husband just disappeared, “packed up the car and left. Things were so bad, that in some sense it was a relief to have him just gone.”
But, says Tal, when it came time to try to negotiate a get, her vanished husband had become a problem. Instead of appearing for his court date—mandated after he broke into their old home and attacked her—he sent a fax, which stated that he’d, “gone home to his real family.” Tal says this meant he’d fled the country, to Israel. A Bet Din there spent a year looking for him, with little success, until one day, he just showed up. Tal says she doesn’t know what prompted his sudden appearance, only that she got a phone call from the court asking if she could be in Tel Aviv by the following Wednesday.
Tal described receiving the get as, “really amazing—my personal geulah (redemption). I have my life back.” One element of the proceedings rankled; her ex-husband demanded payment in return for the get. The judge managed to talk him down from two hundred thousand up front to ten thousand payable over the next ten months. Tal says the judge told her, “‘He’s holding you captive, so this is like paying ransom,’” citing the importance of pidyon shvuyim, redeeming captives.
Tal is not in favor of the prenup; that is to say, she isn’t directly opposed, but she doesn’t favor it either. “I don’t think it’s going to address the crazies,” she says. For men like her ex, Tal feels that no prenup, not even one civilly enforced, could successfully prevail upon them to grant a divorce. Instead, Tal suggests, we should “modify the ketubah.” In fact, says Tal, if she marries again, she intends to make a “custom ketubah” that includes elements of the prenup within it.
In fact, such a variation on the ketubah already exists; Conservative rabbi Saul Lieberman developed what he called ‘The Lieberman Clause’ in the fifties, which was intended to amend the ketubah in just this manner. Rav Yosef Eliyah Henkin had actually raised the idea of adding an amendment to the ketubah earlier in the century. Some Conservative couples do still use it, but the majority of Ashkenazi Orthodox do not, after a halakhic ruling by Rav Moshe Feinstein in which he deemed it not legally valid. In the end, civil courts found the clause unenforceable anyway, due to the separation of church and state, rendering it useless, civilly speaking.
In 2013, the Rabbinical Council of America (RCA) issued a statement on the agunah crisis, which read, in part, “the Rabbinical Council of America declares that no rabbi should officiate at a wedding where a proper prenuptial agreement on get has not been executed.”
Despite endorsement by the RCA, it seems much of the Orthodox world is still balking, and has elected to shun anything new and different, opting instead for the mindset that how things have always been done must, by virtue of its enshrinement, be the correct stance.
However, the typical method of get extraction, a cherem, or complete exclusion of the get denier, no longer carries such effectiveness. Orthodoxy no longer resides in shtetls of the Old World, where the full force of community pressure and disapproval could be brought to bear on a get denier. Today, the world is far more vast. Communities—for the most part—are not as cloistered and interwoven as they used to be. A get denier can start over easily, or even leave religion altogether.
In the end, the prenup’s acceptance in the community is likely going to come down to changing the culture that surrounds it. Activism is important; Robinson advises all to “go to an ORA rally. It is a memory you will never forget. It’s one of the strongest forms of social justice.”
She also urges everyone to keep in mind the implications of marriage. “Of course marriage is about romance and finding the love of your life and living a Jewish life. It’s all of those things and more. But it’s also taking on a legal responsibility. Your future sanity and your health and safety are of supreme importance. No one can ensure your safety other than yourself.”
The wedding day is of course, important, the celebration of finding your soulmate, something the Talmud deems, “harder than splitting the Red Sea.” But, says Robinson, after the party is over, “what’s left? The documents. [One] that should be left behind is your prenup.”
Robinson says that she makes sure to ask engaged friends if they’ve signed a prenup. “When people know that their friends are curious, it changes the culture. Friends don’t let friends get married without a prenup—literally, truly, really.”