Tuesday, September 16, 2014 Elul 21, 5774

A Postnuptial Solution for ‘Chained’ Women

March 19, 2014 By:
Michael Gordan
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The tuxedo was a surprise. We had gathered about 10 couples at our house in Lower Merion for a party at which we would all sign a postnuptial agreement. Not knowing what was appropriate, we hadn’t made any recommendations regarding attire. Nevertheless, here was one couple with 20-plus years of marriage under their belt and the husband in black tie. Like the other happily married couples, they were signing an agreement that would obligate the husband, in the event of a divorce, to either supply his wife with a get — the Jewish bill of divorce — or make her a daily payment of $150.
 
Nothing gets Orthodox Jews tied up in knots like the plight of agunot. Rabbinic law makes clear that husbands must grant their wives a get; modern agu­not are women whose husbands no longer live with them — and who may even be divorced from them under civil law — but who refuse to provide the get.
 
In a bitter irony, the more faithful such women are to their religion’s law, the more they are at the mercy of their faithless husbands. They cannot remarry under Jewish law, and any children they might have are illegitimate, a stigma that can last forever. They are chained — literally, agunot — to their husbands.
 
Over the years, the doyens of halachah have filled volumes with studies of the issue of agunot and have debated proposed solutions to the problem. Those discussions remain theoretical, however, as solutions advanced by one quarter are rejected by another. Given the perceived high stakes, it seems that no one can adopt a change unless everyone does. Without the rabbinic will to fix the problem, women remain the weaker party in any Jewish divorce. 
 
Lately, the results of that inaction speak loudly. It’s been hard to miss splashy campaigns on behalf of individual agunot, with social media campaigns, demonstrations and front-page articles. These occasionally win an individual battle, but it is a long, grinding process, one that doesn’t enhance the public image of Judaism. 
 
Lacking the will to create an in-house cure, the Orthodox establishment has outsourced a solution: relying upon the civil courts to encourage husbands to issue gets. The idea behind the “halachic” prenuptial is to take the ketubah, or marriage contract, at face value. The ketubah contains the husband’s promise to support his wife; if he has separated from his wife but has not given a get, the prenup calls his bluff and obliges him to fulfill his halachic support obligations. 
 
Use of such prenups is spreading, but not without controversy. The Rabbinical Council of America, the best-known association of Orthodox rabbis, has endorsed the halachic pre­nup but does not require its members to use the document.
 
In light of the intractable agunah problem, there also has been expanding interest in another document — the halachic postnup, the analog of the pre­nup for those who didn’t sign one before their wedding. It is likely that most who sign a postnup will never need it. 
 
But it’s a useful way to publicize the issue, to demonstrate a commitment to cure it and to exert whatever pressure we can on those who might be able to help. Events to publicize the document and encourage its signing have been held in venues across the United States.
 
Postnuptial parties like the one we hosted will always draw the more liberal wing of the Orthodox Jewish world, and are likely to include those who will  never have reason to make use of the protection the postnup provides. It is well and good for rabbis and scholars to bemoan the fate of women who have endured years in limbo, but it is far better to take whatever proactive steps might prevent such tra­gedies from ever occurring.
 
In the absence of concerted rabbinic leadership on this topic, it is up to laymen and women to do everything possible to publicize the problem and the existing solutions. And that’s a goal entirely consistent with the finest evening wear.
 
Michael Gordan, an attorney, lives in Bala Cynwyd.

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