Another Argument for Requiring Rabbis to Use the Halakhic Prenup

Right before Shabbat I shared a new resolution adopted by the Rabbinic Council of America (RCA) requiring member rabbis who officiate weddings to use a halakhic prenup, that is, a documennt designed to facilitate the giving of a get in a timely fashion in the event of a divorce. This announcement predictably evoked strong feelings (at least on my FB wall), mostly positive with some detractors.

The core idea of a halakhic prenup is not new, 1 but most are probably familiar with the halakhic prenup of the Beit Din of America (BDA) which was initially developed in 1994 and discussed on this site in greater detail in an earlier podcast and blog post.

Over the years I’ve had many conversations with people over the halakhic prenup, and I would like to share an argument made by a rabbinic colleague which I found so convincing as to remove any reservations I previously had regarding mandating the use of a halakhic prenup. 2

Imagine a scenario where a couple does not want to sign a halakhic prenup. The reasons do not matter for our purposes, only that neither the prospective bride nor groom want to sign one. The couple, for whatever their reasons, also insist that I officiate their wedding. Let’s say I do officiate this wedding, acquiescing to their request, and marry them without a halakhic prenup.

After several years of marriage the couple finds itself in the middle of a messy divorce. Perhaps the husband abandons his wife refusing to give his wife a get or even go to beit din. 3 Let’s say in the interim years I moved on in life, by, for example, leaving the rabbinate and moving to Israel. I had the chance to prevent (or at least minimize the chances) of such an outcome had I insisted on the halakhic prenup using the leverage of the couple’s requesting my officiating their wedding. The question is: Would I, so far removed from the rabbinate and the couple, take responsibility for my decision, drop what I’m doing and assist the agunah until she is freed, or would I leave it to other rabbis to clean up the mess that I could have prevented?

As someone who values the autonomy of the local mara d’atra to pasken for his local community, I fully appreciate resistance to outsiders imposing policies as an intrusion on his local authority. At the same time, the implications of one rabbi’s decisions often extend well beyond his jurisdiction, and far too often the consequences of one rabbi’s decision have to be rectified by others.

From this perspective, the requirement of the halakhic prenup is not merely about what the couple wants in the moment, but the professional rabbinic obligations of the wedding officiant. That a woman does not want to sign a halakhic prenup at her wedding in no way implies that she deserves to be an agunah later in life. Should she become an agunah, someone will have to take responsibility for her well-being, be it halakhically, financially, or minimally pastorally, and the odds are it will not be the wedding officiant who had the ability to protect her from the beginning.

Under the new RCA policy, 4 I would have to give the couple a choice; either forgo their reluctance to sign a halakhic prenup or their request for me to officiate their wedding. While I have no power to force anyone to sign a halakhic prenup, but my refusal to officiate 5 may provide some immediate incentive for the couple to reconsider.

Notes:

  1. See Dr. Rachel Levmore’s article “Rabbinic Responses in Favor of Prenuptual Agreements” (PDF)
  2. The main reason why I’m sharing this now is because it’s an argument I do not think many rabbis consider; I know I certianly did not. It’s also a noteworthy example of someone getting me to change my typically obstinate self with a compelling argument.
  3. While there are cases when a husband becomes an igun due to a recalcitrant wife, my scenario reflects the more common occurance of the wife becoming an agunah due to a recalcitrant husband. Note that the BDA’s halakhic prenup also protects the interests of the husband as the wife is equally bound by the decisions of the BDA.
  4. I am also a member of the International Rabbinic Fellowship (IRF) which adopted a similar resolution years ago, but that’s besides the point right now.
  5. The resolutions only discuss not officiating weddings without a prenup, though I have friends and colleagues who will not even attend a wedding without a halakhic prenup.
Posted in Judaism.