Because religiously observant Jews of any stream live in two worlds at once, when their marriages break apart they must get not one but two divorces.
The civil one might be contentious, but it is relatively straightforward. The Jewish one is more complex. Because halachah – Jewish law – demands that a man give his wife a get, and that she cannot remarry without one – the balance of power is tilted heavily in the man’s direction.
Women whose husbands – quite possibly their ex-husbands according to civil law – refuse to give them gittin are called agunot, or chained women. They are padlocked into a dead marriage, unable to move forward. (Men, too, can be chained, at least in theory, if their wives refuse to accept the get, but in fact overwhelmingly most of the chained former spouses are women.)
As interest in the plight of agunot has waxed and waned over the centuries, solutions have been devised, forgotten, and occasionally revived. Such solutions as threatening a recalcitrant husband with excommunication, beatings, or public humiliation until he gives a get, or trying to find something, some lack of proper Jewishness or laxity in religious observance, that might retroactively annul a marriage and therefore render a get unnecessary, have been tried. Some – the legal ones – are occasionally tried today.
In the Orthodox world, there has been a concerted push to try legal remedies, marrying halachah to civil law. Prenuptial agreements, where a husband promises his wife that if they divorce he will give her a get, and she agrees that if they divorce she will receive it, have been drawn up. They are enforceable in civil court and carry financial penalties. They are encouraged; in fact, rabbis who belong to the International Rabbinical Fellowship must demand that couples they marry sign them, and members of the Rabbinical Council of America strongly encourage their use. Conservative rabbis use what is called the Lieberman clause in ketubot, or marriage contracts, which demand that a get be given. The clause is accompanied by a second document, which the bride and groom must sign, stipulating that the clause is enforceable in civil courts; the bride and groom traditionally do not sign the ketubah itself.
Prenuptial agreements, however, do little to protect women who already are married and have not signed one.
Now, there is a new movement to encourage couples to sign postnuptial agreements, pledging to offer a get should the marriage end.
Teaneck’s Congregation Netivot Shalom is offering couples the chance to sign such an agreement publicly on Sunday, July 21, from 9 a.m. to 2 p.m. The signing is being held in conjunction with a blood drive, and is open to all married couples, members or not, Orthodox or not.
The postnuptial agreement “is a kind or arbitration agreement, and a message to the whole community that this is something important,” Nathaniel Helfgot, Netivot Shalom’s rabbi, said. “We want to make a stand that no one can use the get against each other. Even people who are happily married can sign it.”
Michael Rogovin, the shul’s president, agreed.
“We are a synagogue that wants to be at the forefront of these kinds of issues, in terms of modern Orthodoxy,” he said.
It is often hard to introduce the subject of a prenup; a postnup won’t necessarily be much easier. “People often don’t want to talk about divorce – if you are happily married, why would you? – but this isn’t about divorce. This is about the man showing respect to his wife, and respect for Jewish law.
“This is a way of a man saying to his wife, ‘I love you so much that no matter how bad things get, I would never do this to you. Not giving a get would be a violation of the principles that brought us together in the first place.’
“It is an important statement for us to make as a community, that fealty to halachah means covering every aspect of relationships, and being respectful to both the letter and the spirit of the law, and to each other as human beings.”
“Divorce is a terrible thing, but it happens,” Rogovin said.
“Someone might want to take advantage of the vulnerability that is created by Jewish law for personal spite or personal financial advantage, but that’s not what halachah is about. The fact that halachah creates this power imbalance doesn’t create an excuse for creating agunot.”
Signing either a prenup or a postnup, he said, “is an act of love between a husband and a wife – an act of love for each other and for the values of Torah.”
Helfgot said, “All of us in the Jewish community want to get rid of the scourge of igun” – that is, of chained women. “Unfortunately, there are people whose husbands or wives are using the get as a weapon. Their recalcitrance is making people’s lives horrible.”
He pointed out that although by a huge majority it is men who withhold a get from women, occasionally women refuse to accept it. “For the last thousand years, since the times of Rabbi Gershon, you can’t divorce a woman against her will,” he said. “There are isolated instances of women refusing, but the vast majority are husbands, who use it as a weapon.”
And at times they are egged on, he added. “Unfortunately, sometimes unscrupulous lawyers encourage their clients not to give a get. That is a terrible thing that the legal profession has to confront.”
Helfgot said that it is possible that the plight of agunot has become very visible, both in the United States and in Israel, because the term of the Ashkenazi chief rabbi is about to expire, and a new one will be chosen soon. Debate about the question of what qualifications the next one should have often brings to the surface a deep vein of unhappiness with the synagogue/state divide. Because there is no civil marriage in Israel, women who are agunot live in only one world, and therefore their chains are even tighter.
Judy Heicklen of Teaneck, the president of the Jewish Orthodox Feminist Alliance, said that her organization had joined with the New York University Tikvah Center for Law and Jewish Civilization for a summit on agunot on June 24. Although most of the discussion “focused on solutions that are not as obvious or accepted, so it was more edgy,” the consensus was strongly in favor of prenuptial agreements.
“We strongly encourage more usage of them, but it’s not groundbreaking,” she said. If it were to be discussed at the conference, “You would say yes, everyone should sign it, and then you would have another eight hours to talk. It’s kind of the obvious answer.”
She also thinks that postnuptial agreements are “certainly useful.”
“It’s like a vaccination. You get it before you need it, and if enough people have it, you get a sort of herd immunity,” she said.
Heicklen agrees that the question of agunot “is in the air. A number of social justice issues have bubbled up recently. Some of the issues about gays, the Defense of Marriage Act; it may be a social issue bubble. And then some of the news coming out of Israel, the exclusion of women – some of that keeps some issues on the boil.
“I would love it if everyone put this issue higher on their list and tried to work out potential solutions.”