Prenup to help agunot likely not effective in Canada

Rabbi David Stav and his wife, Aviva, sign a prenuptial agreement. YANIV HOLZMAN PHOTO

Israeli rabbinical and legal experts unveiled a new prenuptial agreement last week meant to end the phenomenon of agunot – women “chained” to husbands who refuse to grant them a divorce – but Canadians will likely have to find their own solutions to the problem.

The Israeli proposal requires maintenance payments of up to half the spouse’s salary until a religious divorce, or get, is issued. Disputes would go to a religious court for arbitration.

But in Ontario, courts won’t enforce the decision of religious courts on matters of family law, so there’s no legal way to enforce the prenups, said Yael Machtinger, a PhD candidate in socio-legal studies at York University whose thesis focuses on agunot. In addition, many Orthodox rabbis in Canada don’t want to push couples entering marriage to agree to a prenup, she said.

Rabbi Dovid Shochet, a member of the beit din (religious court) of the Orthodox Vaad Harabonim in Toronto, said “a prenup is not a new invention.” It is a contractual obligation that would be enforced in a secular court, not in Jewish religious courts. And ketubot, the Jewish marriage contract, usually are written with a requirement that a husband support their spouse, making a prenup redundant, he said.

The Israeli proposal was introduced by Tzohar, an Orthodox Zionist group whose stated goal is to nurture “moderate, rabbinic leadership and shaping public policy.” Tzohar’s proposal was developed in conjunction with the Israel Bar Association.

The prenuptial agreement, which was six years in the making and went through 16 different drafts, contemplates that spouses on the verge of breaking up should spend six months trying to resolve their differences. If that fails and one spouse refuses to grant a divorce, that spouse is required to pay the other 6,000 shekels a month or half the person’s salary, whichever is more. This is meant to discourage dragging out the divorce process.

“No one deserves to stay chained in a terrible marriage with a knife at their throat,” said Rabbi David Stav, chair of Tzohar.

In a phone interview from Israel, Rabbi Stav said the prenups are purely voluntary, but Tzohar rabbis officiate at 5,000 marriages a year, meaning more and more couples are getting the protection the document affords in the case of marriage breakdown. 

Tzohar is engaged in a campaign to convince new couples to agree to the prenups – and married ones as well. He and his wife, Aviva, recently signed their own prenup after decades of marriage, he said.

In North America, the Rabbinical Council of America (RCA) years ago introduced its own prenup, adjudicated by its associate organization, the Beth Din of America, which sits as an arbitration panel. The prenups have become more popular since being introduced more than 15 years ago, said Rabbi Michael Whitman of Adath Israel Poale Zedek synagogue in Montreal.

“There are many rabbis, hundreds probably, across North America who will only officiate at a wedding if the couple agrees to the prenup. I’m one of them,” he said. “When done properly, it virtually ends the problem of recalcitrant spouses.”

The RCA prenup does not have the same impact in Canada. “It appears the RCA document will not be upheld by a Canadian court, because the courts in Canada will only allow monetary penalties imposed by courts, not by rabbis [or] panels,” he said.

To address this issue, Rabbi Whitman wrote his own prenup 12 years ago. It’s weaker than the RCA one in that it doesn’t include financial commitments, he conceded. But it has proven effective. By reminding spouses they’ve agreed to abide by Jewish law, it has great persuasive effect, he said.

“I’m now working on a new document that will be acceptable to Canadian courts,” he added, saying he has consulted with lawyers, law professors and retired judges to ensure it complies with Canadian law.

“We are close to a final document” that he hopes will be adopted by rabbis across the country.

Machtinger said in her graduate work, she has interviewed dozens of women in Toronto and New York who are agunot. Many Orthodox rabbis have tried to address the problem by refusing to marry couples unless they’ve signed a prenup. “It’s the best solution we have at this time,” she said.

In Canada, “rabbis have to be willing to use a prenup when they marry couples. A beit din has to be willing to enforce a prenup. It seems they’re not willing to use this,” she said, noting that many say it’s not appropriate to introduce the idea of divorce when a couple is contemplating a long and happy marriage.

Rabbi Schochet said ketubot already stipulate a husband must support his spouse until they’re divorced, so there’s no advantage in including that in a prenup. And at any rate, the province won’t enforce a beit din decision regarding maintenance under either a prenup or a ketubah. In Israel, courts will enforce a prenup, he said.

There’s also no mechanism available to compel couples to enter a prenuptial agreement, he said. He acknowledged that in New York, “a few rabbis make it [mandatory], but not many.” The last thing couples want to hear when getting married is about a divorce, he added.

But south of the border, “they’re making it part of the culture, it’s normalized,” Machtinger said. In fact, Rabbi Jeremy Stern, executive director of the Organization for the Resolution of Agunot (ORA), organizes prenup parties. The idea is that a prenup reflects a couple’s love for each other and says that even if a marriage ends, neither party would use denial of a get to hurt the other party, she said.