RCA ‘Prenup’ Mandate Draws Mixed Reactions

The early-September arrest of a rabbi and another member of the Satmar community in Orange County for allegedly conspiring to kidnap, torture and kill a man after he refused to grant his wife a religious divorce suggests a disturbing message — that some Jewish women, driven by desperation, may view violence as their last hope for marital salvation.

Jewish law gives full authority to the husband to grant a document of divorce, called a get; if he refuses, the wife is an agunah, Hebrew for “chained woman,” and unable to remarry.

The recent adoption of a resolution by the Rabbinical Council of America, the largest organization of Orthodox rabbis, seeks to change this status quo. Two weeks ago, the RCA announced that its 1,000 member rabbis must require couples to sign a prenuptial agreement before getting married. The agreement includes a pledge on the part of the husband to aid in the “timely and unconditional issuance of a get” should the marriage fail.

“Our hope is that those types of things [violent incidents] can be avoided altogether if we have legal recourse that is legally legitimate and halachically legitimate,” said Rabbi Mark Dratch, executive vice president of the RCA.

The prenuptial agreement, commonly referred to as a “halachic prenup,” requires men to pay their wives $150 per day (or more depending on their financial position) from the day the couple ceases living together until the day the husband provides the divorce document. It is enforceable by both civil and religious law, so men who fail to adhere to its stipulations can be sued in civil court.

“It is a positive step towards combatting the issue of get refusal,” said Orly Kusher, a matrimonial attorney for Sanctuary for Families, where she serves Orthodox clients who are victims of domestic abuse. She said that refusing to provide a woman with a get is “a form of domestic violence” because it puts the wife at an unfair disadvantage in divorce negotiations.

While many RCA rabbis already require the use of a halachic prenuptial agreement, the decision to make the procedure mandatory was done to remove any perceived stigma associated with signing the agreement. Some couples view halachic prenups with the same skepticism that many would view the conventional secular prenuptial agreement, arguing that divorce should not be considered at such a promising point in a couple’s relationship.

“The reason why I feel that this resolution is so important is it provides a tool for rabbis in communities to standardize the use of the halachic prenup,” said Rabbi Jeremy Stern, executive director of ORA, the Organization for the Resolution of Agunot, a nonprofit dedicated to eliminating abuse from the Jewish divorce process. “Now it becomes a part of the professional standard, and the rabbi can say ‘this is not about me … this is a requirement of my professional conduct, I’m required to do this.’”

According to Rabbi Stern, an RCA survey conducted several years ago revealed that approximately 80 percent of RCA members were requiring or strongly encouraging the use of a halachic prenup. The RCA has been endorsing the use of the halachic prenup since 1993.

Rabbi Dratch explained that it took more than two decades to make the procedure mandatory because it took the rabbinic community time to “feel comfortable with the prenup” and for the community to “evolve over time so that more and more young people getting married are interested in this.”

Rabbi Dratch declined to say how many member rabbis voted to adopt the resolution.

Rabbi Yerachmiel Seplowitz, a member of the RCA’s executive committee, said he heard from many RCA members who voted against the prenup.

Critics of the policy say that not all rabbis believe that Jewish law allows for the use of a halachic prenup. Some authorities feel that the Sages of Israel have already instituted the ketubah, and that it is inappropriate to add new documents beyond their original guidelines. Some believe that forcing a man to give a get by way of the prenup can result in an invalid divorce, since the get needs to be voluntarily given. Furthermore, some fear that couples who don’t want to sign the agreement will turn to non-Orthodox rabbis to marry them. There’s also the possibility that “not-yet-Orthodox” couples working with an Orthodox rabbi might be so turned off by the requirement that they decide not to have an Orthodox wedding, or even reject Orthodox Judaism altogether.

“And therein lies the eventual failure of this resolution,” Rabbi Seplowitz said. “While some rabbis will give couples an ultimatum and refuse to perform a wedding without a prenuptial agreement, I have heard from respected members of the RCA who, while they strongly encourage the use of the RCA prenup, will not insist upon its use.”

Despite these criticisms, RCA leaders are still hopeful that the new resolution will help solve the agunah crisis.

Rabbi Stern, the director of ORA, the nonprofit that helps agunot, called the policy “a really important step in the right direction.”

“We are doing everything that we can,” he said, “to put ourselves out of business.”