By Lisa Fishbayn Joffe –
I am an academic who writes about the agunah issue. I am one of the co-founders of the Boston Agunah Taskforce. As director of HBI’s Project on Gender, Culture, Religion and the Law, I conduct research on the ways civil and religious laws about the family shape each other in modern democracies. With all this expertise, I never signed a halachic prenuptial agreement when I got married 21 years ago. I recall hearing something about them, but my rabbi did not require one and we did not seek information about how to enter into one.
We are not the sort of people who would have avoided signing a prenuptial contract because it was unromantic. My husband and I are both lawyers, who went on to do doctoral degrees in law. We think the way law regulates relationships is an interesting topic for dinner table conversation. We like contracts. We actually did sign a civil prenuptial agreement because we were intending to move to South Africa for a few years after our marriage. South African law, based on Roman Dutch law, then saw married women as incompetent to manage their affairs and granted a husband a “marital power” to control the property of his wife. This power was partially abolished for new marriages by the apartheid regime in 1984 but not fully done away with for all South Africans, regardless of race, until actions taken by the post-apartheid government in 2000. We knew we wanted no part of that patriarchal and racist regime and we took active steps to ensure that our marriage would not be tainted by these forms of inequality. Our civil prenup made clear that ours was to be a marriage of equals.
The halachic prenuptial agreement, first drafted the year we married, in 1994, has a similar objective. It aims to give couples a chance of opt out of a traditional legal norm that they view as based on outdated ideas about how men and women conduct themselves within marriage and divorce. Under Orthodox conceptions of Jewish law, a marriage can only be dissolved by the delivery of a bill of divorce, a get, from the husband to the wife. The wife cannot dissolve the marriage by delivering a divorce to the husband and a rabbinical court usually cannot dissolve it for them. Should the marriage end, this gives a husband disproportionate power to compel his wife to remain legally bound to him. He might use this to simply prevent her from moving on to a new relationship or use it as a bargaining chip to demand concessions in negotiations over how they divide their assets or responsibility for their children. Women who want to remarry in their Jewish community may feel compelled to trade away their rights under American family law and those of their children in order to secure the freedom to do so.
Like our civil prenuptial agreement, the halachic prenup allows a man to waive a gendered power granted to him by a legal regime, in this case, the power to hold his wife hostage that is granted to him by Jewish law. Couples who sign it agree that different, more egalitarian rules will apply to their marriage. Should the marriage come to an end, they will accept arbitration before the Beit Din of America and will cooperate in delivering or receiving the get, as the case may be. An uncooperative husband can be ordered to pay $150 per day in maintenance to his wife until her delivers the get. This provides an incentive to deliver the get and thereby dissolve the maintenance obligation but also sends an important message that using this ancient power in the context of a modern day marital dispute is unacceptable.
Much has changed since 1994. Rabbinical professional organizations like the Rabbinical Council of America and the International Rabbinic Fellowship now call upon their members to use a halachic prenup at every wedding that they perform, but many still fail to do so. Rabbi Jeremy Stern, executive director of the Organization for the Resolution of Agunot, (ORA) wrote recently of his decision to resign his synagogue membership because his rabbi did not support use of the prenup in Why I Rescinded My Shul Membership. He urged others to find out the position of their clergy on this issue, encourage its use and make support of the prenup part of the job description for new clergy hires. The Jewish Orthodox Feminist Alliance (JOFA) has taken up this recommendation, in Voting With Our Feet: Heeding the Call of ORA’s Rabbi Jeremy Stern by creating a People’s List where those who support the use of the halachic prenup can report on practices in their own communities. They are encouraging people to “vote with their feet” in choosing where to worship, study, and marry.
The halachic prenup was just entering into use when we got married. Perhaps my rabbi did mention it, but I didn’t make it a priority with so much else to manage like the dress, the guest list and keeping my mother and the caterer on speaking terms. It was an omission we fixed at that party last winter by signing a similar document, available to people like us who had never signed the prenup. We signed a halachic postnup that contains similar terms. The next morning, my children rolled their eyes when we told them how we had spent our “date night,” but I was pleased that we had set an example for them of the ways in which gender equality and Jewish norms could be reconciled in our lives.
Lisa Fishbayn Joffe is the associate director of HBI and the director of the HBI Project on Gender, Culture, Religion and the Law.