- What is an "Agunah"?
It is a Hebrew word that literally means 'anchored' and which is used in Jewish
to describe a Jewish woman
who is essentially chained or "anchored" to her marriage
against her will.
The core of the problem:
For a Jewish divorce to be effective, Jewish law requires
that a man grant his wife a Get (a Jewish writ of divorce) of his
own free will.
If he chooses not to grant her request, or if he sets conditions, even if there
is probable cause, the court cannot grant the Get in his stead.
- Why is a Get
It is important particularly for women as without a Get a woman
cannot remarry and any children she might have with another man, even if he is
single, would be considered a Mamzer (a child born as a result of a
forbidden relationship) and as such the child is barred from marrying another
fellow Jew forever!
It is important to note that men too need their wives to agree to receive the Get
before the divorce can be final, but in their case there are loopholes that
enable them to remarry that are not available to women such as a "heter
100 rabbanim" (a special permit of 100 Rabbis that allow a man to
marry without his wife having agreed to receive the Get ) in addition to
the fact that any children a married man would have with a single woman are not
considered a Mamzer or illegitimate in any way.
- Why is the issue of a Jewish divorce relevant
All Jewish women – and men - who marry traditionally,
according to Orthodox Jewish Law/ Halacha, both in Israel and throughout
the diaspora must have a Get to end their marriage in the eyes of Jewish
Law, a civil divorce – where it exists – is not considered a divorce.
- What is a
prenuptial agreement to minimize Get refusal?
This is not a financial agreement although it can be part of a financial
prenuptial. This is an agreement signed before marriage that was developed in
order to create a financial incentive to give (and receive) the Get,
thus minimizing the occurrence of Get
refusal. According to this agreement, if the husband refuses to give the Get,
he is obligated to pay increased spousal support to his wife until he gives her
a Get (and if the wife refuses to accept the Get she too can be
obligated to pay her husband a monthly sum until she agrees). This type of
agreement obligates the couple both in a contractual-legal manner and by
Jewish law as well as giving the Rabbinical Courts legal authority to act as
arbitrators in the case.
- Why do you need this
agreement if you have a Ketubah?
Indeed the original purpose of the traditional ketubah and the prenuptial agreement to
avoid Get recalcitrance are similar –to protect the traditionally weaker
partner in the marriage – the women. The Ketubah was a bulwark against men
hastily divorcing their wives as it entitled the woman not only to financial support
during the marriage but also to a significant lump sum post-divorce. Today,
this document no longer protects women's modern financial rights- as they are bread
winners in their own right - and it is not relevant when women initiate the divorce
Throughout Europe, although religious marriage is not obligatory,
most Jewish couples marry in a traditional Orthodox ceremony. The
problem is that in the diaspora, the Orthodox Rabbinical Courts have no
jurisdiction on the issue unless the couples contractually agree to give them
authority. This prenuptial agreement gives the Rabbinical court authority
whereas the Ketubah does not.
- What is in this prenuptial agreement?
The prenuptial agreement is a monetary
agreement, designed to both speed up the process of a Jewish divorce and avoid Get
refusal as well as basing the process on values of mutual respect, fairness and
Some of the main points of this agreement are:
(1) The obligation to pay the monthly sum only starts running after
one spouse seeks a divorce and informs the other in writing and a period of X
months pass without the granting of the Get.
(2) The monetary component of the agreement adopts the legal
arrangement of equitable distribution of property. This takes effect regardless
of whether or not the Get is refused.
(3) Some agreements also encourage marriage counselling.
- What barriers might
exist to couples signing such agreements?
-We do not need this
agreement because we love each other;
- We do not want this to spoil
-My boyfriend/his parents
will think I don't trust him to do the right thing;
-We will never hurt each
-It is not legally/Halachically
- Why should we sign this
It is a form of insurance, like
a seatbelt, that we might not necessarily make use of, but which demonstrates
the safeguards to protect the partners of a marriage from each other in the
case of separation resentment.
Couples who sign the
prenuptial agreement to avoid get recalcitrance are less likely to reach the
point of Get recalcitrance at the time of divorce.
The signing of this type of
agreement is a declaration that your marriage will be based on the principles
of equality, love, trust equality and mutual respect.
Education – you may not
need it – but if you turn it into a norm, others that may need it will also
- Why is the prenuptial
agreement only a partial solution?
-A financial agreement does
not resolve the issue of the personal status of the couple. Giving the Get is
still dependent on the good-will of the man.
-Where the recalcitrant
spouse is insolvent – the agreement does not provide an incentive;
-The agreement does not
resolve the plight of the classic Agunah – the woman whose husband is
unable or incapable to give her a divorce (in a coma, mentally unfit, etc.) or
his whereabouts are unknown;
- How do you choose a prenuptial
-Ask your Rabbi;
appropriate legal advice;
-Turn to non-profit
organizations that provide assistance;