Scholar says pre-nups could solve agunot problem

BY ROBERT A. COHN, EDITOR-IN-CHIEF EMERITUS

The use of pre-nuptial agreements with clearly spelled out provisions could help prevent the problem of agunot, whereby husbands in the traditional Jewish community refuse to grant a get, or Jewish legal divorce, so their wives cannot remarry. Michelle Greenberg-Kobrin, dean of students and lecturer at the Columbia University School of Law, spoke about this issue at the Women’s Division Yom Iyun at Young Israel Congregation in University City last Sunday, April 26.

In her talk, “Between a Rock and a Hard Place: The Agunah Problem and Prenuptial Agreements,” Greenberg-Kobrin said that the modern agunot problem has become more acute than in the past, when most agunot situations resulted from husbands who were lost at sea or who were missing in action in wars. “The usual problem was simply that a husband left his home and never came back, and there was no body or other evidence of death,” she explained. ” We had eight women who became agunot as a result of the Sept. 11 terrorist attacks. The husbands were missing and of course did not come back and there were no remains. Information was collected painstakingly, including phone records, to make a determination.”

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If a bet din (rabbinic court), adjudicates that evidence proves that a missing husband is in fact deceased, the woman is declared a widow. If a woman is neither a widow nor legally divorced, she is an agunah and cannot remarry according to halacha, or Jewish law.

“The halachic literature of the past did not contemplate that there would be the situation of today in which women whose husbands refuse to grant them a get (Jewish divorce) cannot re-marry,” she said. “These women can languish for years, and this can have both financial and psychological consequences for the woman and her family. Her children may drop out of yeshivas and in some cases turn to alcohol or drug abuse. Most women do not end up like Heather Mills in divorce settlements and are worse off than their husbands in divorce cases.”

Greenberg-Kobrin said that in some cases, notably in bitter divorces, husbands can hold up a get out of spite. “Jewish divorce, like marriage is contractural,” Greenberg-Kobrin said. “In marriage a husband promises to feed, clothe and sexually provide for his wife. In a get, those obligations are ended contractually. Contracts need two parties and must be freely agreed to and not executed under duress.”

She added that while sometimes the recalcitrant spouse is the wife, much more frequently it is the husband, who has the power to initiate the get. “If both parties agree, the couple comes before a bet din, or rabbinical court, which asks what the reason for the divorce is. If the divorce is freely given, the wife is free to re-marry. Among the grounds for divorce are abuse, habitual infidelity and dishonesty about conditions known to one of the parties before the marriage but not disclosed until after the marriage.”

If a husband is reluctant to grant a get, various pressures can be applied to persuade him to do so, but the pressure cannot rise to the level of coercion, according to Greenberg-Kobrin. “Maimonides essentially says ‘we force him until he says I want to.’ The true nature of the Jew is to do the right and moral thing. Before the Age of Enlightenment, the bet dins had considerable enforcement power. But that has changed in modern times.”

Greenberg-Kobrin said that in the State of Israel, recalcitrant husbands could be jailed if they refused to grant a get. One husband spent five years in prison and appealed to the Israeli Supreme Court that his incarceration amounted to cruel and unusual punishment. The Israeli Supreme Court agreed, and he was released.”

Later, the Knesset passed a law which authorized rabbinic courts to suspend driver’s licenses or passports of recalcitrant husbands. The law was used 198 times between 1990 and 2001, with 191 of the cases decided by the Chief Rabbi of Haifa, while the rabbis in Jerusalem and Tel Aviv hardly used the law at all.

In the United States, Greenberg-Kobrin said that statistics are hard to come by, but in the tri-state area in which she works (New York-New Jersey-Conneticut) “there are about 100 very tough cases and possibly as many as 5,000.”

Greenberg-Kobrin said that dealing with the agunah problem should be seen as a matter of tzadek, or justice rather than as a legal problem. The use of pre-nuptial agreements, with clearly spelled out language, is being used increasingly in both the Orthodox and Conservative movements, she said.

The Orthodox Rabbinical Council of America has approved language for pre-nuptial agreements, and the Conservative movement’s Rabbinical Assembly Bet Din has adopted a simple form to accomplish such agreements. “Some people believe that pre-nups go against the notion of true love since the couple should trust that their love is enough, but the reality is that it does not cover all situations.”