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Prevention of Get-refusal

2016 Resolution : Requiring the Use of Prenuptial Agreements for the Prevention of Get-refusal adopted by direct vote of the RCA membership.

“The Rabbinical Council of America today takes a major step forward toward alleviating the suffering of those who cannot successfully end marriages due to the refusal of one of the parties to participate in effecting a Jewish divorce,” said Rabbi Shalom Baum, president of the RCA. A resolution adopted by the RCA now requires “each of its members [to] utilize, in any wedding at which he is the officiant (mesader kiddushin), in addition to a ketubah, a rabbinically-sanctioned prenuptial agreement, where available, that aids in our community’s efforts to ensure the timely and unconditional issuance of a get.”

According to Jewish law, both the husband and the wife must participate willingly in the delivery and acceptance of a get, a Jewish divorce document, without which neither party can remarry. Most divorcing couples understand the need for the get, and are cooperative and respectful of the process. In some cases, however, one spouse inappropriately uses the get as a bargaining chip to gain concessions in other areas surrounding the divorce such as financial settlements or child custody, or as a tool to torment a former spouse. This is an abuse of Jewish law as well as a form of spousal abuse that uses religious practice as a tool of manipulation and control. A rabbinic tribunal often does not have the authority or capability of forcing a recalcitrant spouse to cooperate, and there are those whose marriages have functionally ended but who tragically cannot remarry due to their religious convictions. A woman who cannot remarry is referred to as an agunah ; a man is an agun.

One effective way to prevent get-abuse is the “Halachic Prenup.” Drafted by Rabbi Mordechai Willig, Sgan Av Beth Din of the Beth Din of America and a Rosh Yeshiva at the Rabbi Isaac Elchanan Theological Seminary (RIETS) of Yeshiva University, in consultation with halachic and legal experts, the Halachic Prenup has been advocated by the RCA since 1993. The agreement received wide-spread endorsement of leading rabbinic authorities in Israel and the United States, and is based on much older documents, dating back hundreds of years. This prenuptial agreement both designates the rabbinic forum in which claims for a get will be adjudicated and creates financial incentives for both parties to effect the Jewish divorce in a timely manner. There are other prenuptial agreements that are used as well.

Rabbi Shlomo Weissmann, Director of the Beth Din of America maintains that “"we have seen, over and over again, that the existence of a halachic prenup dramatically changes the dynamics of contentious divorce cases and virtually eliminates the risk that the get will be improperly used as a tool for leverage or extortion.”

Rabbi Jeremy Stern, Executive Director of The Organization for the Resolution of Agunot (ORA), a group that seeks to eliminate abuse from the Jewish divorce process and which was instrumental in drafting and advocating for this resolution, reports that in well over 1,000 contentious Jewish divorce cases with which his organization has been involved, “we have never seen a case of get-refusal in which the halachic prenup did not work. In numerous divorce cases in which the husband began to posture that he would refuse to issue a get, the halachic prenup secured the issuance of a timely and unconditional get.”

While until now the vast majority of RCA rabbis have counseled their congregants to enter into halakhic prenuptial agreements, and while many of them refused to officiate at weddings in which these documents were not first signed, this new resolution now requires all RCA-member rabbis to require the use of prenuptial agreements. There is reason to believe that this new mandate will help to prevent or alleviate many agunah cases. Most importantly, it will remove any perceived stigma associated with signing the agreement. Requiring rabbis to officiate only at weddings with halachic prenups eliminates the concern often expressed by about-to-be married couples that signing a prenup casts aspersions on their characters or their marriage.

With the adoption of this new resolution, signing the prenup is now no longer about the couple and the expectations that its rabbi has of them, but is about the rabbi and the professional standards that he must maintain. Rabbi Shalom Baum announced that the RCA will embark on a number of initiatives to help rabbis better implement this new mandate, as well as community programs to encourage the understanding and signing of prenups.

Rabbi Elazar Muskin, Vice President of the RCA said, “Seeing that there is a halakhic prenup at every wedding is everybody’s responsibility. Mothers and fathers should not walk their children to the chuppah unless a prenup has been signed. Friends should not let friends get married unless a prenup is signed.”

Rabbi Mark Dratch, Executive Vice President of the RCA said, “Supporting members of the community and relieving their distress are among the top priorities of rabbis. If the definition of a religious scholar is one who increases peace in the world (Berachot 64a), then rabbis must certainly step into the forefront when use of halachically acceptable tools are available to prevent the abuse of the vulnerable. Otherwise, we forfeit our claim to the title ‘rabbi.’”

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