The Halachic Prenup: A Guy’s Perspective
I am an avid supporter of the halachic prenuptial agreement. It enables fighting against one of the most pressing issues facing both the Orthodox and Traditional Jewish communities. In the absence of a prenup, a man might refuse to give his wife a get (the traditional Jewish writ of divorce), either as a form of abuse, control, or leverage in deciding custody of children, or financial issues. Neither of these approaches should be acceptable. Our tradition of the husband being responsible to give his wife a get is not a weapon, a bargaining chip, or something that was divinely ordained so that a man could threaten a woman. Unfortunately, there are those who mistakenly believe that halacha was designed to suit their personal whims.
That is why I support the halachic prenup. I am a firm believer in the marriage system as defined by the Torah, yet I am horrified by those individuals who believe that they have the right to abuse the system for their own narcissistic needs. The prenup will solve this issue. It has been a vital part of many divorce cases in recent years and has helped women ascertain their gittin when the marriage had broken up.
Sadly, the proliferation of the practice is being threatened by members of the Orthodox community who do not support, or outright oppose, the use of a halachic prenup. The most common rationale among them: a fear of feminism entering Orthodoxy and the more innocent, yet equally pernicious, “it doesn’t sound nice.” Some make the argument that a surge in feminism is responsible for the institution of the prenup. That is to say, women have never had equal halachic rights with regard to marriage, and the giving of the get has always been subject to the decision of the man, therefore, anything that attempts to upset this balance is by definition feminism, a concept, which to some, has very negative connotations.
The “it doesn’t sound nice” position is exactly what it sounds like. The halachic prenup is a document that discusses the unfortunate possibility of divorce, and such possibilities should not be entertained at a festive marriage ceremony.
This is perhaps the most simplistic and obtuse of all explanations that might be given. The ketuba – a requirement for Jewish marriage- is all about divorce, yet it is traditionally read aloud from under the chuppah at the wedding ceremony. The halachic prenup is the modern day extension of the ketuba. It is a chance to protect the objectively weaker side of the halachic marriage, the woman. The ketuba is the financial guarantee of our Rabbis that a woman will not go unsupported after a divorce. The halachic prenup is the emotional and spiritual guarantee that a woman will not be imprisoned in an unwanted marriage.
The feminism argument is flawed for many reasons. To put it simply, though, giving a woman a fighting chance against someone who believes that his word is more valuable than G-d’s or our Sage’s is not, in any way, against our Jewish values and traditions. And if this is something that one might consider problematic, then I suggest she or he bring her or his complaints to Rabbi Mordechai Willig and Rabbi Hershel Schachter, two avid supporters and advocates of the halachic prenuptial agreement. This is an excuse of principle. Some are against the prenup because they believe that underlying it is a female-empowering, feminist agenda. However, this is not the time to be debating over any agenda allegedly underlying the halachic prenup. As long as there are people suffering and hurting, our instinct should be to ask how we can help, not to stubbornly refuse to change.
I therefore challenge the detractors of the prenup who consider themselves, and who are indeed viewed by others, as rabbinic figures and communal leaders. I challenge you to look an agunah in the eyes and tell her that you are doing nothing to help because you believe that she is asking for more power than her gender is entitled to. I challenge you to look at these women and ask them, “aren’t you happy you never thought about the divorce when you were getting married?” For those who do not support this prenup, who believe that it is a terrible break in tradition, I ask you to re-examine your tradition. I believe “eitz chayim hi”, our Torah is alive and not a dead weight to burden the people who live by it. Our Torah is alive and must be used and understood as a beacon of hope and not as a source of pain.
Twenty years from now, when the only women who are agunot are those women who you advised not to sign a prenup, I imagine that you might consider changing your beliefs and principles. I challenge you to consider your opinions now, lest your change of heart come too late.
Dov Winston is the President of the Agunah Advocacy Club and a senior in Yeshiva College.
