Jewish prenuptial agreement

Jewish prenuptial agreements have been developed in recent times with the stated intent of keeping the Jewish woman from becoming an agunah in cases where the husband refuses to grant her a get (Jewish bill of divorce). Without such an agreement, Jewish marriages cannot be dissolved without the consent and cooperation of both spouses. This new type of prenuptial agreement makes provisions for the possibility of divorce. By setting up rules prior to the marriage in the form of a contract, both spouses have an interest to negotiate a divorce in a dignified manner, and get-refusal is avoided.

Halakha (Jewish law) states that in order for a Jewish divorce to be valid, the husband must place a get in his wife's hands out of his own free will (Yebamot, 14:1). If he does not have the intent to divorce his wife, no other party—person or court, can do so in his stead. A Jewish woman chained to her marriage because of her husband's inability to grant her a get, is referred to as an agunah. As of late, common usage has applied the term agunah to include a victim of get-refusal.

When discussing the agunah problem, a distinction must be drawn between the classic definition of an agunah and a victim of get-refusal. Halakhically, an agunah is a woman whose husband has disappeared and it is not known whether he is alive or dead. The example used is the passenger on a boat that sank in “waters that have no end” (Babylonian Talmud, Yevamot, chapter 10). The case of the classic agunah still possibly exists today: The wives of several men who were killed on 9/11 potentially could have been declared agunot, however, with the combined international legal efforts of several prominent Orthodox Rabbis, all these cases were resolved and the women were permitted to remarry. A more prevalent problem is that of a husband who is alive and well, but refuses to give his wife a get. A woman in these circumstances is called a mesorevet get - a woman who is refused a get.

The problem of get-refusal became more widespread when Jews lived in countries where civil divorce was available, separate from religious divorce. The earliest prenuptial agreement for the prevention of get-refusal was developed and accepted by the Rabbinical Council of Morocco on December 16, 1953 ("Sefer Hatakanot", Vol. 1, The Institute for Moroccan Jewish Tradition, Jerusalem). The prenuptial agreement gained further approbation in 1981 from Rabbi Shalom Messas, chief rabbi of Jerusalem ("Sefer Tevuot Shemesh", Jerusalem 1981). Following Rabbi Messas' involvement, the Rabbinical Council of America actively pursued this issue (“The RCA Commission: Solving the Problem of Gittin", Hamevaser, Vol. 22 No. 2, October 27, 1983). The latest in a series of RCA resolutions -- "that since there is a significant agunah problem in America and throughout the Jewish world, no rabbi should officiate at a wedding where a proper prenuptial agreement on get has not been executed”—was passed on May 18, 2006.

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