Protected by the post-nup

The halachic prenuptial and newly, postnuptial agreements, are important weapons in the communal fight against ‘get’ refusal

By SHOSHANNA KEATS-JASKOLL

OCTOBER 25, 2017 16:30

‘Don’t worry, I’ll break his legs.’ That’s what my two-meter-tall then-rabbi told me when I suggested to him (on advice from my future mother-in-law) that I sign a halachic prenuptial agreement before my wedding. Reassured by his blasé manner, and knowing virtually nothing of the phenomenon of get (Jewish divorce) refusal, I quickly forgot about the prenup.

Nineteen years, an intense experience of personal advocacy for a relative who had been refused her get for more than a decade, and a great deal of knowledge about agunot (women whose husbands refuse or are unable to divorce them) later, I rectified this mistake when The International Young Israel Movement in Israel (IYIM) held its second postnuptial agreement signing in Jerusalem.

My motivation for signing was not concern for my marriage, but because with all that I have seen, and with personally knowing more than 10 women who were refused a get (not counting the women I met through my advocacy), I believe it is incumbent upon us to ensure that the halachic prenuptial agreement (or post-nuptial, as the case may be) become the default among Jewish couples, so that those who find themselves in need of protection, have it.

While there are several versions of a halachic prenup available in both Israel and abroad, the one my husband and I signed was authored by Rabbi Elyashiv Knohl, Rabbi David Ben-Zazon and Dr. Rachel Levmore, rabbinical court advocate.

They call their document, “The Agreement for Mutual Respect” (Heskem L’kahvod Hadadi), and it has been in use as a protection against get-refusal since 2000. It stipulates that in the event that either spouse wants a divorce down the road, and the other spouse refuses, that very refusal incurs an obligation to pay monthly spousal support in the amount of half one’s monthly income or $1,500, whichever is more, from six or nine months after the party who requests a divorce has notified the other. The agreement also stipulates that the party who does not want to divorce may demand a stint of marital therapy, again, for the protection of both parties.

The spousal support serves as an incentive to the refusing party to agree to the divorce. According to Levmore, this particular prenup “affords the spouses the maximum autonomy possible within Halacha. They don’t have to go to a rabbi or arbiter to implement the agreement or to get permission to enter into divorce proceedings if it is signed in a legal manner.”

The advantage of a couple being independent of rabbinic supervision is that they are not subject to the vagaries of the rabbinic courts. Every Israeli Jewish divorce proceeds through the rabbinical court system, and these courts have no set policies.

This means that any given case depends on the three judges who hear it, their interpretations of Jewish law, and possibly even their personal experiences of that day.

Moreover, the Israeli system requires that the spouse seeking divorce prove fault in his or her partner from a list of halachically acceptable reasons for divorce. Proving fault is no small feat, particularly when each judge upholds different standards for proof (as an example: one well-respected judge does not accept police or hospital reports as evidence of abuse, requiring instead two kosher witnesses to the abuse for it to be considered grounds for divorce; other judges do accept these reports as proof).

But with this prenup, both parties agree to divorce before getting to rabbinic court, and thus file jointly for a non-contested divorce with neither having to prove “fault.” Therefore, when the case is brought to the rabbinic court to arrange the get ceremony, chances are high that it will be finalized rapidly. Thus, the need to battle for a get from a recalcitrant spouse has been neutralized.

Crafted by experts who took every possible manipulation of Halacha into account, the agreement is watertight, according to Levmore, and the best way to protect a couple, the integrity of marriage and divorce, and the Jewish family – barring some future systematic means of resolving the aguna and get-refusal issues.

Recognizing the deviousness of some recalcitrant spouses, Levmore has added an international clause – developed with the Beth Din of America for use in the United States and Europe– in case the get-refuser flees Israel. The clause turns the signatures to the agreement into a binding arbitration agreement, and it has been effective in both the US and Europe (note that the agreement is available in five languages, on the IYIM website).

Procedure for using the ‘Agreement for Mutual Respect’

1. One spouse tells the other that the marriage is over and he or she wants a divorce.

2. If the other spouse disagrees, the initiating spouse sends an official notification of the desire to divorce, stating that the six-to-nine-month waiting period before any penalties kick in has begun.

3. The receiving spouse can either request and arrange for marital counseling, agree to the divorce, or refuse. In the event of refusal, he will owe monthly spousal support for every month after that six-to-nine-month waiting period, while they remain married.

The question, of course, is: Does the prenup work to prevent get-refusal? “The agreement has worked in 100% of the cases of which we know and has never even been brought to court,” maintains Levmore. “It works to prevent get-refusal through the monetary incentive. The existence of the agreement talks the man (it’s usually men) out of his initial refusal because he prefers to divorce rather than pay or owe money.”

Case File 1: One young woman quickly realized that the young man she had married was not going to yeshiva every day, but was instead addicted to drugs. When she failed to convince him to go rehab, she asked for a divorce.

He became violent and refused a get. But because they had signed the Agreement for Mutual Respect, and it was in her file at the religious council, she was able to ask a man whom her husband respected to intervene.

He reminded the husband of their signed agreement – and within three weeks, she received her get.

Case File 2: One mother who was not confident in her daughter’s choice of a husband insisted that the couple sign the agreement, and would not support their wedding without one. Within a few weeks, the bride learned that her new husband was in debt for hundreds of thousands of shekels; he simply was not the man she had thought he was. Worse, at every stage of the process, he refused to grant her a divorce. When the bride’s lawyer finally chased him down and explained that if he didn’t agree to a divorce soon, he would be charged $1,500 a month and that the government could take it from anything he owned, he agreed to the divorce in writing on the spot. In rabbinical court, when the judge asked him if he was willing to grant a get, he said unhappily, “Yes, I signed the Agreement for Mutual Respect.” The judges arranged for him to give the get immediately.

Case File 3: A couple married, with the understanding that the young man would be studying in yeshiva full time. Instead, he spent his days watching porn. When the young woman understood what was going on, she asked for a divorce. He refused. With no prenuptial agreement, the woman had no means to convince him to do the right thing. After a year, Levmore managed to secure a get for the young woman, thanks to her knowledge and experience in the courts. But “that was a year of torture for a 21-year-old, who thought she might never receive a get.”

Despite their proven efficacy, not everyone supports prenups. Some rabbis believe that a prenup makes the divorce “coerced,” a status that would invalidate it. Others are concerned that it renders divorce too easy – lest a couple dissolve a marriage when they don’t need to.

Still others oppose any kind of new solution for the very fact that it is an innovation. Levmore took all of these concerns into account when drafting the agreement, taking care to avoid the first two. As to the third, given the high divorce rates and the excessive number of get-refusals, a halachic solution is required for the sake of preventing anguish.

Indeed, even without universal support, the rabbinic authority backing halachic prenups includes heavy hitters on both sides of the Atlantic. Levmore cites a list that appears on the Beth Din of America website of strong supporters of the halachic prenup, including the likes of Rabbi Ovadia Yosef and Rabbi Zalman Nechemia Goldberg, as well as the Rabbinical Council of America and Yeshiva University.

The phenomenon of get-refusal is not going away.

“We the people have to protect ourselves, our children, our communities, and our societies at large,” says Levmore. “Any individual, but especially a woman, who files for divorce that is not amicable in the rabbinical court... suffers existential angst as she battles for divorce and time marches on.”

Which brings us to the postnup party.

To guarantee that the prenup is legally binding, it must be signed in front of either the family court, the rabbinic court, the marriage registrar where the couple registers or a notary. When it comes to postnups, there are differing legal opinions regarding whether it must be ratified in civil court, or simply signed by the couple.

The “postnuptial-signing party” was designed to ease the process of signing postnups and to increase their use. IYIM, with the support of the Jewish Agency as part of the Aguna and Get Refusal Prevention Project, has held two so far – in Gush Etzion, for 100 couples, and in Jerusalem, for 50 couples – people who are happily married, or who are at least willing to protect their spouses from their own worst self.

My husband and I participated in the Jerusalem event, at the Nitzanim synagogue in Jerusalem’s Baka neighborhood, where Rabbi Shai Finklestein and Dr. Levmore opened the proceedings. Music and food set the mood for mingling, and the event was more of a shared celebration than a legal proceeding. A collective positive energy emerged from a sense that we were all doing something valuable for our marriages, the community, and the future of the Jewish people at large – as the postnup party becomes a powerful educational tool.

“It is what a loving couple does for one another,” Levmore points out. “It creates a family custom... and it is a statement that get refusal is not tolerated in our community.”

Daniel M. Meyer, executive director of IYIM, agreed.

“IYIM is proud to be at the cutting edge of providing innovative halachic solutions to potentially devastating situations,” he says. “We strongly encourage all couples to sign a prenup or postnup.”

With so much that we cannot change, signing a pre-or-postnuptial agreement is an easy way to both make a statement as to the importance of this issue and be proactive in working to change it. I highly recommend it for every Jewish couple.

IYIM’s next post-nup party is planned for Beit Shemesh.

Those interested in hosting an event or for more information should contact IYIM: (02) 650-5924 or iyim.org.il