South of the border, rabbis have been able to address the problem of agunot – women “chained” to their husbands because of the men’s refusal to voluntarily grant a Jewish divorce – by promoting adoption of a prenuptial agreement that includes a stiff financial penalty for recalcitrant spouses.
It might be effective, but that type of prenup isn’t enforceable under Canadian law, because courts here won’t uphold monetary penalties imposed by rabbinic authorities. With that in mind, a modern Orthodox Montreal rabbi has crafted his own agreement that he believes is halachically compliant, meets Canadian legal standards, and is intended to substantially reduce, if not eliminate, the problem of agunot.
Rabbi Michael Whitman, senior rabbi at Adath Israel Poale Zedek Anshei Ozeroff, recently released his “Halachic Prenup for Canada” and is urging rabbis who perform marriages to recommend it to couples about to tie the knot. In his case, he goes further. He won’t marry couples who refuse to sign it.
But he may face resistance. Rabbi Elisha Schochet of the Toronto beit din (rabbinic court), who sits on matters of divorce, said the prenup he’s seen isn’t acceptable. “I don’t think it will pass the beit din of Toronto or of Montreal,” he said, adding, “In my opinion, it’s not correct. There are positions stated there that are not halachically correct.”
Rabbi Schochet, who lauded Rabbi Whitman’s “good intentions,” declined to say where the prenup fails. “This is a discussion for rabbis,” he said. “Rabbinic discussions do not have a place in newspapers.”
Rabbi Whitman believes his prenuptial agreement would work in Canada. It names a specific beit din in New York – the Beth Din of America – to adjudicate disputes and pledges the parties to comply with its orders. It also includes a provision requiring the couple to each get independent legal and rabbinic advice.
Rabbi Whitman said the prenup was developed in consultation with retired judges, lawyers and law professors to ensure it conforms to Canadian law.
It does so by not asking Canadian courts, which adjudicate matters such as civil divorce, from deciding issues of a religious nature, nor does it allow rabbinic courts, sitting as arbitration panels, to impose financial repercussions, which a civil court would not enforce.
Instead a Canadian court would be asked to look at a legally-binding document that obliges the parties to appear before the Beth Din of America, or another rabbinic court it designates, “for the purpose of following the direction of that beit din concerning giving/receiving a get [religious divorce] only.”
The prenup goes on to require the parties to follow the beit din’s suggestion of removing “barriers to religious re-marriage by obtaining a get… It is our intention to address any other issues that may need at that time to be resolved between us, separate from the giving and receiving of the get, outside the beit din proceeding.”
Rabbi Whitman said that when similar prenups were adopted in the United States and Israel, “there are no cases of agunot.” But, he continued, “it’s like the polio vaccine. All we need to do is get people to take it.”
Rabbi Chaim Strauchler of Toronto’s Shaarei Shomayim Congregation is skeptical the prenup would be as effective as U.S. versions, which include provisions for a recalcitrant husband to pay support to their wife at a rate of $150 per day until he grants the get. That inducement is “essential” to its success but is missing in the Whitman prenup, rendering it virtually “toothless,” he said.
“In a typical agunah situation, it’s not that the person has forgotten to give a get,” he said. Often the situation is heated and one of the parties “is trying to take revenge on the other. If you have a bad actor, this is not going to help.”
Yael Machtinger has studied the situations faced by agunot and is preparing to defend her dissertation at York University’s socio-legal studies program on the subject. In the past year or so, she’s interviewed about 40 agunot in Toronto and New York.
She’s discussed the issue with Rabbi Whitman and lauds him for trying to find a solution, but says its effectiveness is still debatable. Until a civil court rules on the prenup’s validity and a rabbinic court addresses it, it’s unclear whether it’s enforceable, she said.
Furthermore, Rabbi Whitman’s prenup bypasses the Toronto-based beit din and refers disputes to the Beth Din of America, an arm of the U.S.-based Rabbinical Council of America. “There might be some people whom that makes uncomfortable,” she said.
Despite her concerns, Machtinger said “on its face, I think it’s a wonderful that this document exists, whether it is legally valid or not. It creates a social movement, a social conversation.”