Criticism of The Jewish Prenup

The controversial views pertaining to the topic of Agunot requires an understanding of historical context. In the 1880’s, the secular establishment/government of France wanted all marriages and divorces would be done via the secular establishment. The lack of Judaism in the United States caused many people to become non-observant even while being married…and this caused issues in regards to whether it not such people can get married again. This would obviously be an issue for the wives of these men becoming disconnected from Judaism.

Over time, various rabbis across the world have tried to come up with things to help make it easier for women. The first “solution” to a pro-women’s way of handling the divorce crisis came from Istanbul in the 1920’s. Some rabbis there said that a Kiddushin is only made on the condition that if the husband is separated from his wife for three years or for no reason, that the Kiddushin is canceled. All of the other rabbis were openly against this. Rav Chaim Ozer of Lithuania was stunned that some “rabbis” could formulate such an idea because even the Reform Jews in America weren’t able to make up such an idea (at the time).

The next “idea” came in 1930 from Louis Epstein – a conservative rabbi from Boston who studied Halakhah with the JTS – A Prominent Conservative-Jewish Seminary in America. He claimed that the Qiddushin should be unconditional but that after the Qiddushin, before the Nissuin, that his fiancee will be the shliach to write the Gett (that she would be the one appointing the rabbis and witnesses involved in the case and have her husband then give the Get willingly). The faults in this prenup is that there’s no way to guarantee that a Get could be valid.

The Orthodox Jewish leaders did not approve of it, but Epstein wanted rabbinic support, so at a JTS alumni event, he met with some of his former colleagues to see if they supported his idea, and they did. The Orthodox rabbinical leaders gathered together to sign a Herem against any rabbi who promotes and performs such an idea. The rabbanim (against the ideas of Epstein) included R” Chaim Ozer, R” Joseph B. Soloveitchik, R” Avraham Yitzchak Kook (Chief Rabbi of Israel), and R” Yoel Teitelabaum of Satmar. This event is what began the separation between American movements Orthodox and Conservative Judaism.

Then came Saul Lieberman of JTS – a Conservative Jewish Theological Seminary. He presented the idea that a premarital clause be added into the Ketubah. This clause would state that would obligate that the husband and wife go to Beit Din if the marriage dissolves. This means that the husband or wife would be obligated to go to Beit Din and give or receive a Get. This became known as the “Lieberman Clause”. This is still respected by the Conservative movement.

The ability to enforce a religious document in secular courts raised questions on the practical usage of the Lieberman Clause. Thus, the Conservative Jews created a separate, secular document that could be used to enforce this practice. However, despite all of this, some Conservative leaders thought that this would invalidate a Gett, so they established a Bet Din that was held by the ideologies of Conservative Judaism.

Decades later, R” Eliezer Berkowitz (talmid of R” Weinberg at Aish) presented an idea based on that of Louis Epstein but with additional things. One of the ideas is that that when a person makes a Qiddushin, that it is based on the idea that the husband is Observant and will keep various mitzvot relevant to  the marriage and that if the husband doesn’t come to Beit Din that the husband is not considered Observant…This was only an idea and was not imposed by anyone.

Sometime after this came Emanuel Rackman – a person whose father was a rabbi who signed against the ideas of Louis Epstein. However, Emanuel was more modern. He added that if a wife didn’t receive a Get, then the marriage could be annulled…Emanuel made a business trying to nullify Qiddushin across America, but the legitimate rabbis didn’t respect this. And at the time, neither did the Rabbis of Modern-Orthodoxy.

In 1980, the State of New York passed the “Domestic Relations Law” stating that if one party initiates a civil divorce, then there has to be no religious barriers preventing her from remarrying. Among Jews, it’s known as the “New York Get Law”. This means that the husband would only be obligated to give a Get if he is the one who initiates the civil divorce in New York. This would not force a husband to give a Get if the wife was the one to initiate the civil divorce

Five years later, various modern-leaning organizations in Israel found other methods which they presented to the Rabbanute (Rabbinate) in Israel. These ideas included prenups that would punish a husband in matters of divorce. The Chief Rabbis (then) were Avraham Shapiro and Mordechai Eliyahu. They rejected these prenups saying that these prenups were not acceptable and decided not to accept anymore of these “prenups” for their term.

The concept of a Prenuptial Agreement has been reformed in the hierarchies of Modern-Orthodoxy to help benefit women in the challenges that come with religious divorce. The poskim from the era of Acḥaronim/Aḥaronim  (1500-present) have discussed the Halachic nature of ideas that resemble the prenuptial agreement that has taken over the Modox world.

The Prenup and Beth Din of America

The Orthodox Union (OU) is one of the leading rabbinic agencies in Modern-Orthodoxy. The OU is affiliated with many rabbinical entities in the world of keeping kosher, but it is very influenced by leniencies in הלכה. And their Beit Din, the Rabbinical Council of America (RCA), has been involved with some of these גט cases. The RCA also has a Prenuptial Agreement (“prenup”) which can sever the halachic rights of a man when it comes to the matters of divorce.

The Beth Din of America (BDA) was run by Gedalia Dov Schwartz (niftar), Mordechai Willig, and Yona Reiss…[add more].

The BDA is affiliated with the RCA and sponsored by the OU and also has a prenup. The BDA is run by Modern-Orthodox rabbis from Yeshiva University (YU). These entities are major players of the Pro-Divorce culture in Orthodox Judaism, and the RCA’s prenup is their weapon.

The prenup, drafted by Mordechai Willig, is now the prenup of the RCA. This prenuptial agreement claims, unconditionally, that claims that if either party does not live together, then he is obligated to give the other party a stipulated sum of money, the Get can only be given via the BDA, and if either party does not attend the Din Torah at Beth Din of America, then he or she is obligated to pay certain fines that can be enforced in secular courts until a Get is given.

The Hebrew version, presented to Rav Zalman Nehemiah Goldberg, excluded various major points. One of them being that the word “גט” does not appear at all. Thus, R” Goldberg wouldn’t have directly seen it as a document that forces a גט…And several other paragraphs (involving marital disputes) are omitted from the version that R” Goldberg read.