The Halakhic Prenup: Embracing Religious Tension

I spent the last two years learning in a beit midrash (Jewish hall of study) in Israel. My beit midrash was a microcosm of the sort of Judaism I most respected: inclusive, halakhically (according to Jewish law) honest, sincere, with grit. The fusion of traditional Orthodox values with social consciousness deepened the Torah study and created an environment that welcomed tension. The connections I made there, over Torah, are among my dearest; my learning sparked my love of religious practice and continues to be exhilarating.

A few months ago, with the end of the academic year approaching, I had to decide how to spend my summer. I wanted to stay in the world of Jewish life, but to take a more active role — out of the study hall and into the community. JOFA offered me a place to focus on issues I care about, and the one at the forefront of my summer’s work has been the halakhic prenuptial agreement, a possible solution to the agunah (chained woman) crisis. The prenup is more than practical; it is also symbolic. It represents the possibility for change, for legal and halakhic (Jewish law) expertise to merge in solving deeply entrenched problems of inequality, extortion, and pain.

The work to which I’ve committed the last few months (which includes the planning of the recent JOFA online roundtable) centers on spreading knowledge and promoting accessibility to resources on the halakhic prenup. Through my work and studies, I have come to understand that radical halakhic innovations that surpass the prenup, although they are appealing, are often neither communally responsible nor effective in gaining a unified backing. And ignoring the critical issues is neglectful and equally irresponsible. Instead, we deserve a Judaism that confronts issues distressing the community without abandoning tradition. We need a Judaism that answers both to social norms and halakhah.

What I have learned is that to achieve such a harmony, instead of pointing fingers at our rabbis or leaders, we ought to take responsibility to educate ourselves, and we ought to put faith in our leaders to guide us. In the case of the agunah crisis, this work starts with the normalization of the use of the prenup. Before seeking new halakhic innovations, which may present their own set of problems, we must strengthen existing ones and set them as communal standards. Normalization of the prenup is the next step in a process that brings us closer to a Judaism that recognizes the essential tension between tradition and social necessity.

For me, the use of the prenup will be non-negotiable. It doesn’t require a conversation; I simply intend to sign it, and I expect that of my future spouse. Major poskim (Jewish legal decision-makers) of our generation have backed it (see endorsements) and for me to doubt its halakhic legitimacy would be an act of great hubris. Potential halakhic challenges do exist, and those questions are interesting on the intellectual plane, but on the practical level, we must recognize that the rabbinic consensus is in favor of employment of the prenup, and we must accept this wisdom. Now is not the time to be “overly pious” in our halakhic conservatism; rather, we must exercise our emunat chachamim —  trust in our sages. This is not an endorsement of uninformed community behavior, but rather of the long-standing Jewish tradition of rabbinic reliance. We ought to take the epistemic humility we’re inclined to have by relying on our rabbis l’chumra and employ it here, too. The halakhic prenup is not a partisan issue for the Modern Orthodox community: We ought to wrestle with it together, from a place of achdut (unity) and consensus.

The first step in making the prenup a unanimously agreed upon non-negotiable item for today’s couples is proper education. This responsibility falls heavily on the shoulders of rabbis and community leaders. For the prenup to truly take root and be normalized, however, community leaders and officiating clergy must not only promote the prenup and educate couples about it, but enforce its use. A 2009 unpublished survey conducted by the Beth Din of America, overseen by Rabbi Shlomo Weissmann, reports that of the 44% of the Rabbinical Council of America’s members and Orthodox Union shul rabbis who responded to the survey, 33% answered that they will not perform a wedding unless the couple enters into the Beth Din of America’s prenup, and 37.8% said they encourage the use of the prenup but will still perform a wedding without it. Another 8.7% said they advocate or require the use of a prenup different from that of the Beth Din of America. Of those who neither enforce the prenup’s signing nor encourage it, 34% responded that they don’t have any specific objections to the prenup– they just haven’t adopted a consistent practice.

Other reasons not to enforce or encourage the prenup included the opinion that it is inappropriate to consider divorce before marriage has even taken place and the assertion that the responding rabbi doesn’t know enough about the prenup to use it. A statistic of over 70% rabbinic enforcement or encouragement (for the BDA prenup specifically) tells us that we are well on our way– the support is there. And I presume that the 70% value has risen over the last 7 years. But for a document that has a perfect success rate at preventing siruv get (divorce refusal), 70% support is not enough. Although I believe good intentions are at work, I hope for a time in which steps are taken to become better acquainted with the prenup, to create a consistent practice of enforcing its use, and to ultimately ensure couples are exercising it responsibly. These survey numbers are a wake-up call, urging us to continue the work we have begun.

As a community, we must not be complacent. We must discuss the prenup openly and establish it as standard practice. And our rabbis, guides, and representatives must know that we largely rely on them to make the added effort to promulgate the prenup, to make the prenup airtight and effective, and to fulfill the dictum kol yisrael arevim zeh la’zeh — we are all responsible for one another. Our communities can be brought to a place of knowledge and preparedness when it comes to halakhic marriage, divorce, and the prenup, and the responsibility to bring about that progress belongs to us all.

A topic discussed among friends in the beit midrash where I studied was the inner tension that can result when a deep commitment to religious observance boxes in a person’s right to live freely and authentically. This conflict exists in various social issues with which the Orthodox community grapples, but is particularly manifest in the issue of aginut (chained marriage). A chained woman’s inability to remarry and be free is not just her personal problem, but a tragedy felt by all of am yisrael (the Jewish people).

As Beth Din of America’s Keshet Starr mentioned in the recent JOFA Blogcast, “When a couple chooses to sign the Prenup, they are effectively telling one another that ‘I love you, and I always want to treat you with dignity and respect, no matter what happens in our relationship.’ That commitment–both at the time of marriage and if necessary, at the time of divorce–makes a powerful statement as to how we want power dynamics to play out in Jewish families.” The Torah and Jewish law ought to be a means to create and uphold that dignity, respect, and love– not forces against it. The halakhic prenup may not be perfect–and it doesn’t cover all instances of aginut–but within it are the stirrings of those principles. So if we want a Judaism that is upright, authentic, and unafraid to accommodate tension, the way to confront the agunah crisis is with the normalization and enforcement of the halakhic prenup. The moral grounding of our faith depends on it.

May we merit to see a Judaism rich with justice, integrity, and responsibility. May the Torah’s message resound: “drakhehah darkhei noam, v’khol netivotehah shalom,” the ways of the Torah are pleasant, and all its paths peaceful.

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