About Prenuptial Agreements
Part 2

No prenup is a guarantee (see, About Prenups, Part One).

 

That said, all prenups are not equal. 

 

There are better and worse prenups.

The best is that of the Center for Women’s Justice, drawn up by the eminent rabbinic scholar, professor of Talmud, and community rabbi, Rabbi Daniel Sperber.

 

It establishes that, if the couple has not resided together as married for 18 months and the husband refuses the wife a get, the marriage is annulled retroactively—

 

WITHOUT THE NEED FOR ANY RABBINIC COURT action or involvement.

 

This final clause is critical 

 

because some prenups require that divorces be brought to a certain rabbinic court-- e.g., that of the Rabbinical Council of America—which has complete jurisdiction over the divorce and its terms including:

 

• the right to waive any penalties for get withholding that it,

• or another rabbinic court,

• or a prenup specified (all halakhic prenups set a daily financial penalty for get withholding, which is never enforced/ not enforceable), 

• and to set other conditions for the wife to be free of the marriage.

 

This stipulation prioritizes the role of the rabbinic court, rather than the rights of the wife to marital freedom without extortion.

 

It can get the wife caught in a prolonged, costly divorce process that, given the pre-existing halakhic bias in favor of husbands in rabbinic divorce pressures the wife to accept unfavorable terms about property, money, custody—no different than in regular get abuse.

 

Any prenup that does not include an automatic, autonomous provision for retroactive annulment of the marriage in case of divorce withholding uses get giving and get abuse to empower rabbinic courts 

NOT to protect the wife.

 

The best existing prenup is that of the Center for Women’s Justice but even that one is not foolproof—no prenup is.

 

Why is even that prenup not foolproof?

 

Because no document can protect women against some post-divorce or annulment rabbinic pronouncement that declares the prenup invalid and the couple still married—that is, declares the woman an agunah, needing a get from some other rabbinic authority (likely, the one contesting the divorce or one allied with him/ them).

 

Only women understanding of how all this works and steadfast insistence that a marriage that has been terminated is over-- that the women are free—and women’s behavior in accord with that understanding—supported by communities, friends, and family--will free women from the agunah trap.

 

For that to become social reality-- 

• women need to have full information 

• for the meaning of the information to be absorbed 

• and for there to be organized social, communal, family support of agunot who exit their marriages in whatever processes they engage to do so.