Yesterday, I posted about the struggles of Gital Dodelson, a 25 year old New Jersey resident who is fighting to obtain a Get – the bill which the husband gives to the wife in order to free her to marry again.

Therein, I noted that remedies under New Jersey law are limited, at best, when a husband refuses to grant his wife a religious divorce.  Indeed, the court in Afalo v. Afalo (1996), stated that this was, in part, because to compel a Get would be judicial entanglement in religious affairs.  And that is where the Get laws in New Jersey stayed for some time.

Then, in 2011, the Appellate Division offered a glimmer of hope for the “Agunah (chained woman) crisis,” as it is commonly referred to.  Lowy v. Lowy held that orders that a husband give a Get are unconstitutional, unless the husband has contractually agreed to give the Get (or to abide by the outcome of a religious arbitration, which ends up ordering him to give a Get):

The parties were divorced on September 20, 2004 when the Family Part issued a dual final judgment of divorce, which, by agreement of the parties, incorporated the August 4, 2004 decision of a Bais Din (rabbinical court) located in Monsey, New York…. [But] the August 2004 decision of the Bais Din … did not … require defendant to provide his ex-wife with a Jewish divorce … [and t]he judge’s reliance here on the purported decision of the Bais Din was [therefore] flawed ….

Once the Bais Din decree is eliminated as a source of authority for the judge’s August 27, 2010 enforcement order — as it must be — the order cannot be sustained because it constitutes impermissible judicial involvement in a matter of religious practice. Simply stated, the judge lacked the authority to compel defendant to “give the Get” where, under the facts presented here, defendant was not bound by any contractual agreement to do so.

Essentially, the Court’s ruling in Lowy offered a prophylactic measure – a means to protect a woman from suffering the same fate as Gital, and hundreds like her.

The Jewish community responded, drafting what is called a “Halachic (Jewish Law) Prenup”, which is endorsed by rabbis throughout the United States, Canada and Israel.  On the website, which contains multiple forms of the prenup to conform to the laws of various jurisdictions, it is described as “The Single Most Promising Solution to the Agunah Crisis.”

Rabbi Jeremy Stern, of the Organization for the Resolution of Agunot (ORA), has stated:

From our perspective at the Organization for the Resolution of Agunot, the Beth Din of America’s halakhic prenup has been extremely effective in assuring that a get is giving in a timely fashion. We do not have any cases at ORA in which a prenup that was properly signed and produced for the courts did not result in the issuance of a get in a relatively short period of time.

Once seemingly taboo (I’ve heard people describe it as “unromantic”), the concept entering into a Prenuptial Agreement has been more commonplace over the past several years. According to a recent survey of the American Academy of Matrimonial Lawyers (AAML), 63 percent of divorce attorneys said they have seen an increase in prenuptial agreements over the past.  Further, 46 percent reported an increase in the number of women requesting them.

While I would venture to say that the statistics are not as staggering when it comes to signing a “Halachic Prenup”, certainly the increase in prenuptial agreements generally could dispense with reservations couples may have if asked by their rabbi or lawyer to enter into one before marriage.

Of course, the “Halachic Prenup” does not offer any relief to the existing agunot, an infirmity which, unfortunately, is on the rise.  As reported in Newsweek yesterday, “a 2011 study by the Mellman Group reported 462 cases of agunot in the U.S. and Canada between 2005 and 2010, suggesting a marked increase in get refusals as well as a decline in resolutions, which can take anywhere from one to five years, sometimes longer.”

The picture may remain bleak for existing Agunot, at least in terms of the availability of legal remedies.  It is for that reason that the importance of the “Halachic Prenup”, from the perspective of organizations like ORA, cannot be understated.

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Eliana T. Baer is a frequent contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com.

  • Moe Ginsburg

    There are two pertinent points about this post.

    1) Even with a prenup or other contractual obligation for a husband to give his wife a “Get” should she request one, even under the above court ruling or the reading of any law, should the husband refuse to comply with his contractual obligation to provide his wife a “Get”, all a court of law can do is find him in “breach of contract” and impose a financial penalty upon him that he must pay his (ex-)wife. And, in fact, in the terms of the “Halachic Prenup” itself the only remedy for a husband failing to give his wife a “Get” is a financial penalty that the husband must pay the wife. And even if the terms of the “Halachic Prenup” stated (which it does not) that he can be compelled by a secular court to provide a “Get”, no court of law could enforce such a provision. All they could do is financially penalize him.

    2) The second problem with this idea of a “Halachic Prenup” is from an internal Orthodox Jewish religious perspective. Orthodox Judaism has many streams. The largest stream is known as “Hareidim” or the Ultra-Orthodox. According to the recent (September 2013) Pew Research study on Judaism, “Hareidim” constitute 70% of Orthodox Jews. (And both Dodelson and her husband are “Hareidim”.) And by far most Hareidi Rabbis are opposed to the Halachic Prenup concept. And as a practical reality an excruciatingly few Hareidi marriages utilize the Halachic Prenup. This opposition stems from a multitude of reasons. On one token there is a religious ruling by the leading late Hareidi sage, Rabbi Yosef Shalom Eliashev, who ruled the Halachic Prenup invalidates a subsequent “Get”, thus defeating its entire purpose and intent. (And for technical reasons under Jewish law is actually counterproductive in that it can cause future children of the wife to be considered bastards under religious canon.) Even among other Hareidi rabbis who might not subscribe to the ruling that the Halachic Prenup invalidates a future “Get”, they for the most part still oppose this type of prenup for a multitude of other reasons under Jewish law and/or custom.