ROBIN MORDFIN
JUF News
CHICAGO -- For most Americans, the words "prenuptial agreement" evoke images of couples planning who will get the Spode china should they divorce. But for many Jews, prenuptial agreements can divert the problem of agunah -- a "chained woman."
Judaism discourages divorce, but has always permitted it. Once a marriage is over, halakcha requires a man to give his wife a get, a document that sets her free. In the pre-modern era, rabbis could order a man be treated as a stranger or he be imprisoned or even flogged in order to persuade him to grant his wife a get.
But today Jewish courts have less power and there is little a community can do to force a husband to set his wife free.
In the past, most agunot were women whose husbands had disappeared. Today, they are usually women whose husbands are around but won't get a divorce.
The United States has a large problem because the separation of church and state means that civil authorities often cannot compel a husband to grant a get.
Agunot Inc., a 12-year-old group created by women who could not get divorces, estimates that today, more than 1,000 women in this country are considered agunot.
The Orthodox and Conservative movements have made efforts to change this situation. In June 1993 the Orthodox Rabbinical Council of America approved the use of a prenuptial agreement designed to stem the increasing number of agunot.
The agreement and a separate document from the ketubah (marriage contract) has both parties agree that, in the event of a separation, they will go to a religious court and abide by its ruling. If the man refuses, he must pay a substantial sum (usually $500) each day he is in contempt.
The Conservative Rabbinical Assembly in the 1950s accepted a clause, an addition to the ketubah that was written by the late Rabbi Saul Lieberman, which makes couples agree to appear before the Beit Din of the Jewish Theological Seminary and the CRA. They must also obey the dictates of the court that both can live full lives.
The Lieberman clause is widely used, but many state supreme courts will not accept it on the grounds that it violates the separation between church and state.
The reasons for the non-universal use of prenuptial agreements vary. Many rabbis have said it is unpleasant, and even extortion, to discuss divorce in the midst of premarital counseling. But all Jewish weddings require a ketubah, and the rabbis are required to explain the document to an engaged couple. The Jewish marriage contract is a legal agreement that provides for the wife in case of divorce or widowhood.
Over the centuries, numerous rabbis have said the ketubah is a deterrent to divorce because it reminds the husband of the large financial obligations he would owe his wife should they divorce.
Some couples may not want to sign such an agreement because they fear it will make them look unsure of their commitment. But, as Rabbi Saul Berman of the Orthodox Caucus said, if more couples signed the agreements, there would be no stigma. Which means the growing problem of agunah could come to an end.