The Agunah Crisis: What Is The Answer?

It continues to amaze me that not all couples are signing Halachic prenuptial agreements to eliminate the issue of Get-Refusal, especially in light of the growing Agunah crisis. When I meet with clients and ask why they did not sign a prenuptial agreement, the response is almost always the same—“I never thought this could happen to me.” Others have admitted that they were told it was not necessary.

The newest dispute arises with the International Beit Din, which has been attempting to utilize two Halachic tools to resolve cases where a Get is being withheld or not accepted. The Rabbis use the mechanisms of declaring the witnesses from the wedding not kosher or declaring that there was a preexisting flaw in the husband that was not disclosed to the woman prior to the wedding, so that the marriage was a mistake.

Both these tactics have been used, in rare cases, by other Rabbinic courts around the world, but the International Beit Din is interpreting cases with wider latitude, looking to find Halachic loopholes. Not surprisingly, this has generated fevered controversy. But this is not the first time efforts have been made to find loopholes to justify the granting of a Get when one of the parties is not cooperating. In the past, similar attempts have also ultimately failed to win acceptance. For example, Rabbi Emanuel Rackman created a Beit Din in the 1980s to free Agunot by granting annulments and circumventing the need for a Get. This, however, was not universally accepted as a valid termination of the marriage.

Each time the Agunah problem makes the news, clients, friends, and Rabbis reach out to me with the same question: “Esther, how do we solve this problem?” Despite the seeming proliferation of serious discussions as to the depth of the problem, to date there exists but one practical method to solve the crisis. The solution lies in prevention. That is where the concept of the prenuptial agreement comes into play; at this point, the most widely accepted Halachic method meant to circumvent the problem of Agunah altogether is the Halachic prenuptial agreement. If couples would enter into a valid, enforceable prenuptial agreement and agree that should the marriage break down, neither will withhold the giving or accepting of the Get from the other, the problem would be avoided.

The leading prenuptial agreement used within the Orthodox community is the Beth Din of America’s “Binding Arbitration Agreement,” also referred to as the “RCA prenup.” By signing the RCA prenup, the bride and groom are authorizing the Rabbinical court, as an arbitration panel, to render a binding decision on all issues relating to a Get. There are also optional clauses empowering the religious court to decide all of the divorcing couple’s monetary disputes and child custody and related issues. The entire agreement is in keeping with the law of the state where it is signed and can be enforced as a binding arbitration agreement in the secular court. The core of the prenuptial agreement, however, is the groom’s obligation to support his wife at the rate of $150 a day as long as he refuses her request for a Get.

The basic idea of the Halachic prenuptial agreement is that it brings about financial penalties against the resisting spouse for being recalcitrant in the divorce proceedings. The Beth Din of America reports that in practically every divorce proceeding where a prenuptial agreement was signed, the Get has been given within a reasonable time. This is a remarkable track record. Since 2006, the Beth Din of America has even mandated that its member Rabbis have the couple sign a prenuptial agreement before officiating at the marriages.

It should be noted that the RCA prenuptial agreement is not the only way to effectuate the desired outcome here. Similar prenuptial agreements can be drafted for couples that are more comfortable with a different Beit Din or with their attorneys drafting the prenuptial agreement.

It is important for everyone to understand that when signing any legally binding document, such as a Halachic prenuptial agreement, it is advisable to seek legal counsel. An experienced attorney will help a person make choices appropriate to their situation and that will meet their comfort level. For example, in the RCA prenuptial agreement, parties can choose which aspects of the divorce they would want arbitrated in the Beit Din. The agreement can be as narrow as to just include the Get, or it can encompass all end-of-marriage issues, thereby empowering the religious court to decide all of a divorcing couple’s monetary disputes and questions of custody and visitation. Because this can be a binding arbitration agreement, it is advisable to discuss the various options with an attorney. As a side point, and to further emphasize the importance of consulting with an attorney, is the potential non-enforceability of custody-related decisions made by a Beit Din. Therefore, in order to avoid potential conflict and prolonged litigation in the future, the parties should be aware of their legal rights and be educated on potential future outcomes. Avoiding doing so can have dangerous ramifications.

While the prenuptial agreement is vital in this day and age, it is a preventive measure, not a cure-all. Think of a prenuptial agreement as a form of insurance which is reliable for the problem of Get-Refusal, but is not effective in all circumstances. What is most remarkable about the prenuptial agreement is that, for now, it seems to actually be working. It has been utilized in scores of cases, including many of my firm’s cases, and has consistently prevented the use of the Get as a tool for improper leverage or extortion. It has even worked in highly contentious cases, where the parties litigated all the other issues of the case. Where there is a prenuptial agreement, most often the Beit Din does not even need to begin formal proceedings to award support under the arbitration provisions of the agreement.

The problem is that many people are either ignorant of the problem or of the importance of signing a prenuptial agreement, or it was recommended to them not to sign it. As a result, there are still many recalcitrant husbands who are able to use the Get as leverage or extortion over their wives. While husbands can also be refused the acceptance of a Get, men have other options to be granted a Get, such as permission from 100 rabbis, called a Heter Meah Rabbanim. Moreover, the prenuptial agreement may ameliorate the plight of the Agunah, but it does not solve the problem totally, since the monetary demands imposed on a husband will have no impact on a husband who is wealthy, is mentally unstable, or has absolutely no funds, and therefore would not be threatened by the monetary obligation.

The Halachic prenuptial agreement can only be effective as a solution to the community-wide problem of Get-Refusal if it is adopted for use by the community as a whole, since those who are most likely to need it are usually those least likely to sign it. There must be communal pressure to sign prenuptial agreements. It should be universally accepted that a couple must sign one, similar to it being universally accepted to attend classes concerning family-purity laws. Unfortunately, in some circles, the signing of a prenuptial agreement is taboo. While there is still a need to find a more comprehensive solution to the Agunah crisis, the prenuptial agreement serves as an effective solution by way of prevention.

Esther Schonfeld, Esq., is a founding partner of the law firm Schonfeld & Goldring, LLP with offices located in Cedarhurst, New York. . Schonfeld & Goldring, LLP limits its practice to divorce law, family law, and matrimonial law in both secular court and rabbinical courts. Ms. Schonfeld, also a trained mediator, is a member of the NY State Council on Divorce Mediation.