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Beyond The Pre-Nup: Training Orthodox Attorneys to Practice in Rabbinic Courts


All we need to do to solve the Agunah problem for the next generations is to ensure the widespread use of the “halachic prenuptial agreement,” right?

Wrong.

Pre-nups are agreements by which the husband, who is obligated by Jewish law to support his wife (mezonot), voluntarily obligates himself to give his wife a sum (usually about $200 per day) for every day he fails to appear before a bet din for purposes of giving her a get. Indeed, these agreements can be enforced in a court of law in the manner of any executed contract. The pre-nup, however, addresses only those cases where the husband refuses to appear before a bet din and give a get.

Yet to be addressed is this question: What happens when the husband gets to the bet din? What happens when he demands, as a precondition to his giving the get, that all matters related to the divorce – including property distribution, support, and custody – be submitted to the bet din, not to a secular court, for adjudication? Worse, what happens when he declares to the bet din that he will “voluntarily” give the get on condition that his wife waive all her interest in the property and/or reasonable support?

In effect, such a demand compels the bet din to serve as a go-between rather than an arbitrator, and pressure is placed on the wife to accept the husband’s grossly inequitable terms in order to obtain her get. Unfortunately, such a demand is entirely in keeping with Jewish law orhalacha; in fact, there is a stringenthalachic injunction against submitting any civil matter against another Jew to a non-Jewish court.

This demand is the unspoken subtext that, my experience proves, continues to bind women in agunah’s chains.

I do not address myself here to the extreme cases in which mean-spirited men inflict anguish on their estranged wives. Nor do I address myself to the oft-repeated refrain that batei din are corrupt. Rabbi-bashing is not a constructive use of resources, especially since batei din are integral to Jewish life, particularly on the issue of the get, and are here to stay.

My focus, rather, is on the common and pervasive use of batei din, by many men, to secure the kind of inequitable financial settlement they could never obtain in a secular court of law.

Marriage under secular law (unlike under Jewish law) is deemed an economic partnership. Assets accrued during the course of a marriage are equally, or, as in New York, equitably, distributed upon dissolution of the partnership. Jewish law does not recognize assets accrued during the marriage to be “marital” or shared property. Instead, property and money acquired by the husband alone or the couple together belongs solely to the husband. (A business that the wife alone created and managed may be acquired by her under certain conditions.)

What this means is that if the wife had been taking care of the children while the husband was running a business, under Jewish law she is not entitled to any portion of that business. Nor is she entitled to any maintenance (formerly alimony) or retirement benefits, as a man has no obligations whatsoever to his divorced wife. His sole responsibility is to support his young children (to the age of six) and to provide for their education. The only property to which she is entitled is that which she brought to the marriage; her dowry; separate property; or that which she received by inheritance or gift during the marriage.

In other words, he says to her, “O.K., honey, you want your get? Fine! But I will only give it to you if you do not go to secular court.” Even if the wife has already sued and obtained a civil divorce and court adjudication as to all financial issues, she may have no choice but to acquiesce in re-opening all issues before the bet din on pain of not getting her get.

Is it any wonder, then, that most men prefer to have their financial divorce issues decided in accordance with Jewish law – even men who would never consider submitting their own business disputes to a bet din? The coupling of personal greed and religious justification has thus given birth to a perverted use of batei din.

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All we need to do to solve the Agunah problem for the next generations is to ensure the widespread use of the “halachic prenuptial agreement,” right?

Wrong.

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