Ask a Yoetzet
Golda Koschitzky Hotline
By Yardena Cope Bodenheimer
The Ketuba
Over the centuries, rabbinic leaders have instituted various legal enactments and devices to protect Jewish women in cases of divorce. In pre-modern times especially, women were uniquely vulnerable since they usually didn’t earn income or own property, and because, according to Torah law, a man is able to divorce his wife without her agreement.
The ketubah, the Jewish marriage contract, provides financial support for a divorcee or a widow, and disincentivizes impulsive divorce. Whether the ketubah is of Torah or rabbinic origin is a matter of dispute. Besides specifying the husband’s marital obligations, the ketubah contains a binding promise that should the husband divorce his wife (or predecease her), she receives a lump sum of money, presumably sufficient for at least one year of living expenses.
In the 11th century, Rabbenu Gershom further expanded the protections afforded Jewish women by forbidding polygamy and by making divorce contingent on the wife’s agreement.
In general, the ketubah has less of an impact today, and not only because Rabbenu Gershom’s enactments remain in place. Couples now generally share assets and women also own property and earn income, so unique concern for the woman’s status and sustenance post-divorce has diminished. Additionally, divorce settlements usually subsume the protection afforded by a ketubah.
Get Refusal
However, another challenge to divorcing couples persists and has, unfortunately, expanded – “get refusal,” in which a spouse refuses to divorce, or agrees to divorce only under extremely one-sided conditions. This is possible, since Jewish law requires that a get – a Jewish bill of divorce – must be given by the husband of his own free will and must also be consensually accepted by the wife (per the enactment of Rabbenu Gershom).
Refusing to end a marriage with a get means that the partner remains chained to the refuser, unable to remarry halachically. (There is a contentious workaround for men seeking to remarry, known as a heter meah rabbanim, which entails obtaining 100 rabbinic signatures approving the second marriage.) Get refusal is often used as a tactic to bargain for money, extort money, delay resolution, or even as a form of abuse, where the refusing partner essentially holds the keys to the freedom of his or her spouse.
Get refusal is even more of a threat when used by the husband, since a woman who remarries civilly without a get is halachically considered to be committing adultery, and her offspring from another man would be considered mamzerim (halachically illegitimate). Mamzerim are barred from marrying most Jews, and mamzerut status is automatically passed down to all offspring.
Need for a new rabbinic protocol to protect against “get refusal” has become more acute as Jews in the modern era no longer feel compelled to follow the directives of a bet din (a Jewish court of law), rendering any means available for compelling divorce less effective than in the past. In practice, a bet din cannot usually compel a recalcitrant partner to give or receive a get because the Jewish legal grounds for compelling divorce are limited, and compulsory no-fault divorce is prohibited.
Jews have also become less attached to established communities, which opens more possibilities for individuals to avoid the social consequences of get refusal.
Addressing Get Refusal
Most men and women don’t initially set out to cause pain and anguish to their spouses. However, the process of divorce can bring out the worst even in people who are usually well-intentioned, and there are also some malicious get-refusers. To counter this behavior and prevent get refusal, rabbis both in the U.S. and Israel have composed several versions of a halachic pre-nuptial agreement.
Couples sign a halachic prenup out of love and care for each other, in order to protect one another from the worst version of themselves (or against unforeseeable mental or other problems). Even if they personally wouldn’t consider acting in such a way, the blanket signing of a Jewish prenuptial agreement by all couples as a social norm helps ensure that everyone will sign, including those who eventually need it.
Couples who have not signed a prenup before marriage, which is preferred, are encouraged to sign a halachic post-nuptial agreement.
By signing a halachic prenup (or post-nup), the parties agree that if one or both want to end the marriage, they will act with dignity and treat each other with respect. Parties to a halachic pre-nuptial agreement consent to go to a bet din, to give or receive a get, and to reach a settlement, all within a reasonable period of time. (This agreement is different from a standard monetary pre-nuptial agreement, which is designed to divide assets and property in case of divorce, though a couple can sign both, and they can cross-reference each other.)
The more widely-accepted halachic prenups contain a financial disincentive to stall giving or receiving a get, which has proven effective in most potential refusal situations.
The incentive to divorce in a timely, cooperative manner is worded halachically in a fashion that avoids the problem of a “forced” get, which would be invalid, since a get must be given of the husband’s free will. The halachic prenup establishes that a refuser agrees to pay a significant monthly monetary sum (up to half of the refuser’s income) for as long as the get refusal persists.
To avoid being considered an invalid “forced” get, this sum is defined as “spousal maintenance” and is technically taken on as a legal obligation at the time of marriage. The payments are also deliberately defined as a reasonable sum of money so as not to be considered an invalid “penalty”.
This type of prenup is halachically recognized by many recent major poskim, including Rabbi Yaakov Bezalel Zolti z”l, Rabbi Chaim Zimbalist z”l, Rabbi Ovadiah Yossef z”l, Rabbi Gedaliah Dov Schwartz z”l, and Rabbi Zalman Nechemiah Goldberg z”l, as well as leading poskim of today, including Rabbi Herschel Schachter, Rabbi Mordechai Willing, Rabbi Shlomo Amar and Rabbi Asher Weiss.
Practical Resources
Most halachic prenups are formulated equally and bilaterally, since a woman, too, can be the perpetrator of get refusal. The agreements are also worded in a considered and balanced way so as not in any way to encourage treating divorce lightly.
It is crucial that the Jewish prenuptial agreement contain the proper halachic wording, and therefore one should use only a broadly recognized halachic prenup. We suggest not tampering with the careful wording without consulting a halachic specialist in these matters.
The websites listed below include links to the Rabbinic Council of America (RCA) prenup for the U.S. or Israel, as well as two prenups specifically for use in Israel. For other countries, please consult a qualified local halachic authority. For guidance in more complex residency cases or when signing a halachic prenup alongside a monetary prenup, please consult with a lawyer trained in this field and knowledgeable of the halachic intricacies.
Rabbinic Council of America
The RCA website includes several versions of the prenup, appropriate for couples planning to live in the U.S. or in Israel, and contact information for Canadian couples. There is also a postnup option.
Israeli Prenups
Because of the unique role of the batei din of the Israeli Rabbinate, there are different views about the best approach to the prenup in Israel. Before deciding on a course of action, each couple should consult their mesader kiddushin. Below are links to two widely used Israeli prenups. The Tzohar agreement includes a postnup option.
https://www.tzohar.org.il/heskemeahava2/en/homepage/ (English)
https://www.tzohar.org.il/heskemeahava2/ (Hebrew)
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Yardena Cope Bodenheimer became a Yoetzet Halacha in 2009 and a Nishmat fertility counselor in 2018. She currently serves as the assistant legal adviser in the Department of Jewish Law at the Israeli Ministry of Justice. In the past, she directed the Assistance Center at Itim, giving counsel and advocating before Rabbinic courts and Israeli state institutions on matters related to marriage, personal status, conversion, burial, proving Jewishness, ART (assisted reproductive technology), surrogacy and halakhic prenuptial agreements. Yardena has taught and lectured in Israel and around the world on a diverse range of subjects, and currently specializes in the interface between Jewish law and Israeli law. Yardena is the founder and former director of the Advanced Talmud Institute and Daf Yomi at Matan, Jerusalem and holds a degree in law from Hebrew University and master’s degrees from Tel Aviv and Northwestern Universities.
