Apr 28, 2015
Will the Halachic Prenup Catch On

An event tonight in Crown Heights with Dayan Moshe D. Gutnick will discuss what some call the Agunah crisis and possible solutions.

By Libby Herz

The growing conversation about Agunahs has recently brought together a group of people to discuss the arguments pro and against prenuptial agreements for Jewish marriages.

"This is a very complex and sensitive issue," stated Rabbi Chezzi Denebeim, leader of Chevras Ahavas Yisroel in Crown Heights, a local shul that hosted a "Halachik Prenup/Postnup Party" on March 29.

Some 50 people showed up, including singles, engaged and married couples - all interested in the process that advocates say can avoid abusive situations from developing when a spouse refuses a 'get' divorce.

"This event is about caring for those who are oppressed," said the organizer, Aden Ratner-Stauber, a psychology extern at New York City Children's Center Bronx Campus. "I wanted to be proactive and help women who are suffering."

Allison Josephs, who runs the website Jew in the City, spoke at the event. "We have been happily married for 15 years," she said, "we are going to sign a postnup to support the community."

One of the halachic authorities backing the prenup, in addition to the Beis Din of America (BDA), is Chabad Rabbi Moshe D. Gutnick, member of the Sydney Beth Din and President Organisation of Rabbis of Australasia (ORA).

"I unreservedly support any prenup that has the approval of Reb Zalman Nechemia Goldberg," he stated in an e-mail, referring to the senior posek that lives in Jerusalem. Advocates admit that Rabbi Gutnick is almost a lone rabbinical voice in his support for the prenup.

The reciprocal prenup is only put into effect once a husband and wife have gone through couples counseling, are no longer living together, and have spoken to rabbonim. If their rabbonim decide that divorce is the only viable option, the prenup is activated.

At that point, the party who refuses to participate in the get process becomes legally bound to pay $150 to their estranged spouse on a daily basis until the get is given, sources say. $150 a day equals to a little less than $55,000 a year.

Rabbi Gutnick will be presenting a lecture titled "Challenges Facing a Bais Din in the 21st Century: The Agunah, Abuse, Justice in the Torah System" on Tuesday, April 28.

Taking place at 8:30pm at the United Lubavitcher Yeshiva hall at 570 Crown Street, Rabbi Gutnick will explore what some call the Agunah crisis and possible solutions to it. He will also field questions from the public.

"Get refusal is a form of abuse," claimed Mindy Fersel, Assistant Director of Advocacy and Legal Strategy for ORA, which educates Jewish community members about agunot and the prenup and provides advocacy and emotional support to agunot.

"Domestic abuse is defined not only by violence, but also by controlling behavior. The get represents the last vestige of control a husband has over his estranged wife," she told COLlive. "With it, he has the freedom to decide to give her the freedom to move on and be happy in life or to remain trapped in a dead marriage with little hope of escape or closure."

"I grew up thinking that Orthodox Jews were not good to women," said Allison Josephs. "I am involved in this movement to show that we are good to women. There are almost 500 agunot in America right now. We need to find a solution."

At the March event, when the speeches were done and the crowd had thinned out, a newly married couple approached Kimberly Hay, a Notary Public and Assistant Director of ORA, requesting to sign the halachic reciprocal agreement.

Each showed photo ID and then signed their names under a section which read 'The parties agree that the Beth Din of America is authorized to decide all monetary disputes.' Two witnesses then signed their names at the bottom of the document. The couple smiled at each other and handed Kimberly their phone. "Can you take a picture of us?" they asked.


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Opinions and Comments
1
and then
And if they don.t pay the $150 a day, what happens next?
If they refuse get, I see them refusing to pay either.
(4/28/2015 1:27:54 PM)
2
interesting
does Rabbi Gutnick has permission from the local rabbinia Chabad and rabbi osdaba to come into there community and give advise?
(4/28/2015 1:43:03 PM)
3
Wonderful
It is important that discussions such as these have come to the surface. Education is truly power
(4/28/2015 1:55:14 PM)
4
To #1
If they refuse then the court can do something about it - put them in jail, dock the money from their paycheck, etc.
That is the point.
(4/28/2015 2:07:49 PM)
5
sounds good
I have unmarried children and I like this a lot.Sounds like a start.
(4/28/2015 2:20:03 PM)
6
What about our bais din?
Isn't it stepping on toes to go into another city and try to push halachic legislation without the support of that city's bais din.
(4/28/2015 2:34:57 PM)
7
Questioner
it seems that Poskim and Botei Din representing the more right wing orthodox are not enthusiastic about the pre-nuptial agreement.
Why is that, there are many fine sensitive rabbonim in those communities, this includes the Crown Heights Beis Din and Rabbonei Chabad in Israel and London.
(4/28/2015 2:38:47 PM)
8
anonymous
BS"D
if you sign one of these pn then you are half way on your way to divorce
(4/28/2015 2:48:47 PM)
9
This is what its come to...
A lone Australian Rabbi says that he holds whatever Reb Zalman Nechemia holds.Shkoach. 21st century rabbonus.

Can someone post reb Zalman Nechemia's response or is it a blanket approval for anything asher bishem yikara. Is there biclal a response, or was this through handlers and hearsay.

Can we a get a real psak from vaad rabbonei lubavitch.

That will end it one way or another.
(4/28/2015 2:49:13 PM)
10
Sydneysider
While Rabbi Gutnick is a very knowledgeable man when it comes to these kind of topics he's is way left of center of most frum rabbonim
(4/28/2015 2:59:02 PM)
11
To #4
No, they can't. The terms state that Rabbonim need to decide whether divorce is the only option, and only once they do does the prenup go into effect. What happens if some Rabbonim do and some don't? This is what happens with plenty of cases.
(4/28/2015 3:13:38 PM)
12
i think its a good thing
we need some thing like this.
(4/28/2015 3:43:50 PM)
13
To #2
Anyone can give advice - no need to ask permission for advise
(4/28/2015 3:45:24 PM)
14
Prenup?
It doesn't mention prenup anywhere. Why is that the headline? Seems people have lots of questions. They should go and ask!
(4/28/2015 3:46:12 PM)
15
Yehudis smith
I am one of the organizers of this shiur and this article misrepresents what the evening will be about. Tonight's event is simply a shiur - Rabbi Gutnick will be educating us on the challenges he has faced in his bais din as well as what Torah says about the Agunah crisis, what can and cannot be done about it, and abuse in general The pictures here imply that this evening is intimately connected with the prenup event that took place a few months ago and this isn't the case. I'm sure the prenup will be brought up in the discussion but it is most definitely not the focus of the evening
(4/28/2015 3:48:41 PM)
16
Guess what ?
When you sign your Kessubah you are already "half way on your way to a divorce" bc the Kessubah specifically addresses the money payment that the man owes the lady if the marriage doesn't last .
(4/28/2015 4:20:11 PM)
17
rabbi gutnick is being used
RABBI GUTNICK MEANS WELL BUT E IS BEING USED BY A FEW LONERS AND OUTSIDERS WHO WANT RUIN THE FRUM WOLRD AND HALACHA AND MAKE EVERYTHING "EQUAL" FOR THE WOMEN.

WILL THEY MAKE EVERYTHING EQUAL FOR THE MEN WHEN THEY GO TO COURT? WILL THEY SIGN A PRENUP NOT TO FIGHT FOR MONEY AND FOR THE CHILDREN WHEN THEY GO TO COURT? WILL THEY SIGN A PRENUP THAT IF THE MAN WANTS OUT HE CAN JUST WALK AWAY?

BOTTOM LINE DOES THE MAN HAVE THE SAME RIGHTS AS A WOMEN? OR IS THIS A ONE SIDED FIGHT?
(4/28/2015 4:57:00 PM)
18
Expert in Gittin
Rabbi Gutnick has been on the Sydney Beis Din for decades. A Beis Din which deals with Gittin.
This being said he is knowledgeable about the halachik isssues with Gittin and PN.
I'm not sure if the Beis Din in CH deals with Gittin and therefore wouldn't be as knowledgeable regarding these matters.
For those asking about why it would be permissible, maybe take the time to go to the event to hear.
(4/28/2015 5:16:16 PM)
19
Very intriguing
Sounds like it's going to be a fascinating shiur. I shall be attending. A pity no one in our shchuna can step up to the plate and speak with experience about such topics.

Not sure why #6 is upset. It's a shiur not legislation. Halevai our community's rabbonim would know how to deal with these issues.
(4/28/2015 5:43:30 PM)
20
Rabbi Gutnick
SO IMPORTANT for MAINSTREAM lubavitchers, EVERYONE:
unfortunately NOONE is immune from this disease. Tomorrow it could be your sister, mother or daughter at the raw end CV;
yasher koach!!
(4/28/2015 6:02:20 PM)
21
No it doesn't
No #11. The biggest problem with the "prenup" is that it appoints YU's "Beth Din of America" as the sole arbiter. They've tried to force divorces and very questionable gittin even when the husband just wanted cancelling because the wife wanted an immediate one. Chazal in Kesubos 82b, among other places, took many measures to prevent fast and immediate divorce precisely because of the problem and harm it causes to both sides. This goes against the foundations of Judaism and is also a power grab by that organization. That is being promoted here is very wrong.
(4/28/2015 6:03:27 PM)
22
Rabbi M Gutnick
Rabbi M Gutnick BOS is a true expert in gittin, everyone should go tonight.
(4/28/2015 6:05:07 PM)
23
older single
I completely support the halachic prenup, but I think it's important to realize that women can be just as abusive and controlling as men when it comes to divorce. women demanding full custody is almost never in the kids best interest.
(4/28/2015 6:21:52 PM)
24
To #11
100% of those who wanted a divorce years after signing the halachic prenup were granted a get within a 6 month period.
(4/28/2015 6:36:46 PM)
25
Half The Aguna Cases Are Not "Non-Negotiables"
The Aguna organizations are used many times by women seeking to put their husbands under unfair pressure when they haven't sought recourse in Bais Din and have their husbands in court. The Aguna organizations need to demand proof of the woman's being an agunah and that negotiation was tried discreetly and failed.

Ask for a court history. Have them ask for petitions and court papers from the person seeking advocacy. Perhaps this person never went to a bais din and are using court pressure and perhaps police to unfairly get their husband to bow to outrageous demands?

Women commonly get this horrible condition called: Post partum depression which can make them impossible to negotiate with due to paranoia and other emotional disorders accompanying Post partum Lo-Alaynu. This somehow also needs to be accounted for. (Perhaps send her for tests?)

The Aguna organizations have to ask her for Rabbinical certification that negotiation was attempted. If it was attempted by a non-rabinic organization, so a report should be made available for study. Maybe there are terms or points that could be negotiated.

It is hard if you are not a lawyer to determine "who dunnit" and that all negotiation was attempted. Remember you are dealing with 2 people who both blame the other, so you have to be a bit of a sherlock holmes to figure out how to negotiate for her.

It's a time consuming process and divorce actions cause terrible enmity with families and communities backing both sides. Not to mention the bloody gladitorial combat that happens when it goes to court with each side doing all they can to win. With a good negotiator many of these cases could be resolved. When Mishpot Shalom was operating in Crown Heights we took half of the cases off of Beis Din and negotiated a number Shalom Bayis cases too.

It is hard to make a case across the board that this is a growing trend, when in fact the only trend we can see is that couples are more frequently divorcing. So of course the problem of couples in crisis is more apparent. But that doesn't mean that the "Orthodox Community Is Unresponsive To The Plight of Agunahs".

First of all, it has to be determined she is a real aguna and isn't just appealing for help to get an unfair advantage over her husband in court as unfortunately many do.

We have a good system, but we have a more modern community today that doesn't use it. That is not to say that there are not men who abusively do not give their wives a get. There are, but it is probably about half to a third of those women claiming to be Agunah.

In short, we as a community, specifically in Crown Heights would do better to fund a "Couples In Crisis" help service which would cut down the divorces and therefore the claims that this one or the other is an Agunah.

The alternative we are facing is much more expensive as the costs of the separated couple falls on the community as does the reprecussions from their kids difficulties etc etc. Cheaper to do a preventative Couples Help service with couples walking into the troubled marrieds houses and seeing first hand how they can discreetly help.
Best,
Shalom
(4/28/2015 6:40:00 PM)
26
modern
which courts put the prenup in effect, the rabbinical bais din or civil courts? and divorce should be the couple's decision, not Rabbis'. also in Israel, there is some kind of agreement that the some couples sign if there would be a divorce and yes the more modern Rabbis are doing this.
(4/28/2015 7:29:58 PM)
27
this is a conspiracy
To put power in the hands of the BDA.
(4/28/2015 8:14:04 PM)
28
solution
I think that the best solution is what the Israelis did, create a law that puts the husband in jail if he doesn't want to follow the bais din instructions of giving a get.

We should lobby legislatures in the USA, Canada france Argentina England and at least all countries where large concentrations of Yidn leave to pass such law.

A general law should be written by lawyers and then presented to Rabbonim and lawyers in each country to make it fit to the local law and realities as well as local rabbinic authorities.

This effort needs to be made at the same time in all countries, citing that is being done so, perhaps would be better if it passes as law in one country where may be relatively easier to do it and then all others cite it as a precedent and referral etc

Umesaimim betov
(4/28/2015 8:25:13 PM)
29
Power grab
If it was a legitimate attempt to solve a problem it would not be written as it is, making the YU"s MO Beth Din of America the sole arbiter. There are many halachic problems with this, of which Rabbi Braun touched on one. It is not proper for many reasons.
(4/28/2015 8:33:48 PM)
30
funny
how people comment that its good,
are you a "baky' in halacha?

its scary how people just jump for anything in yidshkeit not being 100% sure it is the right thing a cording to halacha
(4/28/2015 8:36:45 PM)
31
Finally a Rabbi takes a stance
I give Rabbi Gutnick a lot of credit. He is standing up and doing something to help the public. Too many rabbis tend to sit in their office and spout of negative comments and letters against each other or others. Enough with the negative. We all need positive actions that will help society. I have told all my kids will sign this before they get married. If you don't like it: then don't sign it. But at least he is doing something to help the situation. That's more than most rabbis can say.
(4/28/2015 8:51:49 PM)
32
Kesuba
The Kesuba was made to discourage divorce. See the measures that the Chochimim took to discourage divorce in Kesubos 82b alone, ukaheina rabos (there are many other examples).
(4/28/2015 9:22:30 PM)
33
The prenup won't work.
The prenup only works for people who get regular salaries that can be garnished by the courts. Maybe in the modern orthodox professional world. In the Charedei world? fugget about it! People who are determined to get what they want easily can hide their earnings. How many people are off the books or can hide their income?
(4/28/2015 10:55:59 PM)
34
We need a prenup to protect both parties
Fathers (and their children) need to be protected by prenups as well, so mothers don't prevent equal access.
(4/28/2015 11:51:35 PM)
35
Wow
All of a sudden someone speaking HALACHA and people are scared to hear the truth. People want to live in their own bubble and face the reality
(4/29/2015 12:43:38 AM)
36
to 1 (and 4, 11)
Like 4 said, the courts can force them to pay. They can be sued for the money owed and it can be taken from their wages or assets. Its a legal contract. Giving a gett, on the othet hand, cannot be enforced by the american legal system because its a religeous matter and there's separation of church and state.
(4/29/2015 1:05:31 AM)
37
Asher Lovy
The shiur will be posted online in about a week and a half. Unfortunately, something went wrong with the videotaping, and it was taped by several people and will have to be cobbled together. I'm sure you all will have plenty of opinion, some valid, some ridiculous. Reserve comment until you watch it.
(4/29/2015 7:21:24 AM)
38
Common sense tells me that it ( need for p.n.) should be revealed before they go out.
No pain.The woman always marries up,and is entitled to a lifestyle... a man doesn't mind.Love can only cover so much emotional territory,women need more to be comfortable with raising kids then men.It is not there mitzvah to procreate,it is ours,and a prenuptual agreement circumvents and sabotages our own mitzvah. DB Halevy, Tsfat
(4/29/2015 9:47:39 AM)
39
to#38
Why are they entitled to a certain lifestyle?
(4/29/2015 6:53:46 PM)
40
To #39 It's Jewish Law.Discomfort about lifestyle changes would add an additional unnecessary burden to bearing and raising happy,healthy children.
It's easier for a man to make a living in this world.
(4/30/2015 1:36:36 AM)
41
From Rabbi Braun
Below is a comment that was posted on an earlier article of this topic. The comment is posted with the name of Rabbi Braun.

18
Why do you think the rabbis dont know about the prenup they feel its to ify

By Horav Yosef Yeshaya Braun, shlita, member of the Badatz of Crown Heights.

#249 Prenuptial Agreements

There is a discussion amongst contemporary poskim regarding prenuptial agreements. Sometimes a husband and wife have irreconcilable differences, which unfortunately lead to divorce.
Numerous solutions have been proposed over the generations to address the agunah scenario that occurs when a recalcitrant husband declines to give his wife a get voluntarily. According to Jewish law, a divorce is valid only if the husband places a get in his wife's hands of his own free will. In the past the term agunah was used to describe a woman chained to a marriage, unable to remarry because her husband had vanished without a trace, and there was no evidence of his death.

In today's day and age a different problem exists: Sadly, there are women today who are suffering as mesurovos get, refused a get by their husbands even after a Beis Din has ruled that the husbands must give a get to their wives. This phenomenon is relatively new, as nowadays the religious courts are not empowered to take justice into their own hands, and the effects of social or religious sanctions imposed by any given Beis Din are severely limited. (Technically, there can also be men who are “chained” to their marriage, due to the decree of Rabbeinu Gershom that a woman cannot be divorced without her consent. Indeed, there are a considerable number of men who are in this sad predicament. However, in cases of extreme need, men have a way out: they can arrange for a heter meah rabbonim, permission from one hundred rabbis from three different countries to remarry. Women do not have this option.) It must be emphasized that a man who withholds a get from his wife after being ordered by a Beis Din to give one, is in violation of very many Torah commandments and is considered a rashah.

There are countless sayings of Chazal as well as specific halachos attesting to the fact that our sages were extra diligent in attempting to assist Jewish women, agunos in particular. Of course, if in a particular situation the Torah rules that an agunah may not remarry, we are unable to change the law of the Torah in order to accommodate her in her plight; indeed any attempt to change Torah laws in any matter is foolish and borders on heresy. Many ideas promulgated by various activists and popularized on social media to an undiscerning audience, while perhaps done with the most noble of intentions, are absolutely unacceptable and have been condemned by virtually all gedolei Yisrael.

One form of prenuptial agreement under consideration, widely publicized in the USA, is an agreement where the future husband and wife both sign, prior to being halachically married, that if down the line for whatever reason they no longer have a shared common residence, the husband obligates himself to pay the wife a certain amount of money per day─as long as they remain married according to Jewish law. Since these conditions will be very difficult for him to fulfill, by signing this agreement the husband will, so-to-speak, be "compelled" to give his wife a divorce should she want one. While these efforts are very commendable and could help resolve the plight of many women, it must be ascertained that such a prenuptial agreement is according to halachah (aside from other theological and social considerations which need to be evaluated independently). There are various opinions about this matter which are beyond the scope of this brief article. Aside for the fact that the agreement has to be a valid one, it can have serious repercussions in the future as to the legitimacy of the get, since according to halachah the husband must give it of his free will, and not be “compelled” to do so. It is important to emphasize that any solution to this issue requires the full agreement of many gedolei hahora'ah after thoroughly having investigated all the issues.

The Rebbe warns that in our generation which is plagued by the "sickness" of publicity, where everyone has an opinion on everything, engaging in public discussion, even among Rabbanim, on this matter can pose a strong threat to the immutability of the Torah. This can lead to a situation where every individual, even those who have zero training in halachah─and are certainly far removed from knowledge in the intricacies of halachah relating to such a complex matter─will form their own halachic opinions how to "reform" and "adjust" the laws of the Torah in all the other 612 mitzvos, as well, in accordance with the current culture and weltanschauung. As is often in vogue lately, anyone who can be more creative in devising a heter becomes the leading voice. Thus, this subject is best left to the domain of seasoned Torah leaders.

Due to the complex and sensitive nature of the laws of gitin, it's very unlikely that any innovation would ever legitimately change the halachic dynamics, where the husband can have leverage with regard to the get. Many suggestions which have been floated are halachically unsound, and any change would provide a dangerous precedent for those who wish to find fault with halachah. Just as living a Torah lifestyle can be challenging in many ways, but we believe that it's for our own good, albeit beyond our comprehension; we must recognize that the same applies to the structure of gitin, even the aspects that may seem 'unfair'. Our focus should rather be on creating an environment where it's a given that it's absolutely unacceptable to withhold a get after a Beis Din has ruled that the husband grant it, and on mediating marital disputes to ensure that smaller conflicts don't escalate into lifelong vendettas.
(3/24/2015 8:09:02 PM)
(4/30/2015 7:03:48 AM)
42
#20 Classic Fear Monger
Implication that it will happen to your daughter, sister, etc is a classic way to silence intelligent thought process by introducing a strong emotion.
I guess that's why we are told to fear Hashem - then we are not vulnerable to the mind control of people who want to use fear to get people to stop thinking.
Using fear is common when discussing this topic. It scares a lot of people into silence.
(4/30/2015 7:14:45 AM)
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