Rabbi Michael Whitman
South of the border, rabbis have been able to address the problem of Agunot – women “chained” to their husbands because of the men’s refusal to voluntarily grant a Jewish divorce – by promoting adoption of a prenuptial agreement that includes a stiff financial penalty for recalcitrant spouses.
It might be effective, but that type of prenup isn’t enforceable under Canadian law, because courts here won’t uphold monetary penalties imposed by rabbinic authorities. With that in mind, a modern Orthodox Montreal rabbi has crafted his own agreement that he believes is halachically compliant, meets Canadian legal standards, and is intended to substantially reduce, if not eliminate, the problem of Agunot.
Rabbi Michael Whitman, senior rabbi at Adath Israel Poale Zedek Anshei Ozeroff, recently released his “Halachic Prenup for Canada” and is urging rabbis who perform marriages to recommend it to couples about to tie the knot. In his case, he goes further. He won’t marry couples who refuse to sign it.
Rabbi Whitman believes his prenuptial agreement would work in Canada. It names a specific Beit Din in New York – the Beth Din of America – to adjudicate disputes and pledges the parties to comply with its orders. It also includes a provision requiring the couple to each get independent legal and rabbinic advice.
Rabbi Whitman said the prenup was developed in consultation with retired judges, lawyers and law professors to ensure it conforms to Canadian law.
It does so by not asking Canadian courts, which adjudicate matters such as civil divorce, from deciding issues of a religious nature, nor does it allow rabbinic courts, sitting as arbitration panels, to impose financial repercussions, which a civil court would not enforce.
Instead a Canadian court would be asked to look at a legally-binding document that obliges the parties to appear before the Beth Din of America, or another rabbinic court it designates, “for the purpose of following the direction of that Beit Din concerning giving/receiving a Get [religious divorce] only.”
The prenup goes on to require the parties to follow the Beit Din’s suggestion of removing “barriers to religious re-marriage by obtaining a Get… It is our intention to address any other issues that may need at that time to be resolved between us, separate from the giving and receiving of the Get, outside the Beit Din proceeding.”
Rabbi Whitman said that when similar prenups were adopted in the United States and Israel, “there are no cases of Agunot.” But, he continued, “it’s like the polio vaccine. All we need to do is get people to take it.”
Rabbi Michael Whitman is the senior rabbi at Adath Israel Poale Zedek Anshei Ozeroff