About Prenuptial Agreements
Part 1

Much has been made in recent decades about prenups as a proposed means to at least moderate women’s vulnerability to get withholding and extortion. 

 

That claim needs a lot more discussion, see, below, and About Prenups: Part Two.

 

Some tout prenups as the “solution” to prevent iggun, altogether. 

 

That is simply not true.

 

All prenuptial agreements ARE CONTRACTS.

As such, they can be, are, and have been—violated all the time. 

 

Enforcement of their terms requires LITIGATION, costly in many ways: 

 

• in money for lawyers and court hearings

 

• and in emotional ravaging—

 

both of which, abusive men have used and continue to use in order to get wives to forego their claims—including those specified in prenups. 

 

In Jewish practice today 

 

In the Diaspora:

 

where the jurisdiction of rabbinic courts has no recognition in civil law—

 

where contracts drawn up under halakha are not recognized as legally binding-- 

 

and where their enforcement by a civil court is denied as a violation of the separation of Church and State--

 

women claiming violation of a halakhic prenup can only turn to rabbinic courts—which have no systematic, effective, reliable enforcement mechanisms-- 

 

and whose default position, in any case, based on halakha, is protection of the husband’s unilateral right to give or withhold a get, a rabbinic divorce.

The same holds for women in levirate circumstances (see the FAQs and Glossary).

 

In Israel:

 

“Personal status” for all citizens—including marital status-- is determined by the respective religious authorities of citizens (Jews; Muslims; Christians; Druze). 

 

For Jews, that is the State-established Chief Rabbinate—run by ultra-Orthodox (haredi) authorities.

 

There is no civil marriage or civil divorce in Israel.

 

Any Jewish couple, however and wherever they married, who register the marriage with the Ministry of Interior and wish to divorce, will find themselves in a Chief Rabbinate, or other, haredi (ultra-Orthodox) rabbinic court. 

 

There is no other way for Jews to terminate a registered marriage in legally, officially, Israel. 

 

The religious orientation of the parties to a divorce has no bearing on how divorce is enacted. 

 

Orthodox Jews of any variant--

 

Secular Jews--

 

Atheists--

 

Members of Masorti or Reform communities--

 

whose marriages are registered with the Ministry of Interior and who wish to establish their legal status as “divorced,” can get this only via a Chief Rabbinate divorce court or one operated by independent haredi rabbinic authorities.

 

The Chief Rabbinate and other haredi authorities are extremely hostile to prenuptial agreements drawn up by lawyers or rabbis which protect women by mandating that all financial and child custody decisions be made in civil courts and not the religious courts, leaving the get alone to be done in the rabbinic court, 

 

and demand that such agreements be terminated with prejudice-- meaning that they are void and not actionable in any court-- as the price for proceeding with a get. Without which, again, the couple is not divorced under Israeli law.

 

If a couple obtains a divorce of any kind elsewhere and each member then wishes to establish marital status as “single” in Israel—they would have to undergo extensive proceedings in a Chief Rabbinate Court—which would treat the couple as still married, deny the validity of any divorce obtained elsewhere, and demand that the couple divorce through its auspices. 

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In behaving this way-- as a monopoly seeking to protect its privilege in Jewish divorce, rabbinic courts themselves function to deny women gittin—to keep women in marital captivity—including in cases where the divorce is amicable and there is no get withholding by the husband. 

 

In these cases, it is rabbinic courts that practice get withholding.

 

Pioneering, Orthodox, agunah-advocates, Rivka Haut and Susan Aranoff, long ago termed prenuptial agreements, “the dangerous illusion.”

 

To depict all this as other than it is, is to deceive and mislead women and to perpetuate iggun.

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Prenups are no solution to iggun. 

 

They can and often do, become a tool in women’s marital captivity.