The Jewish Prenuptial Agreement: Preventing the Agunah Crisis
The halakhic prenuptial agreement addresses one of Jewish law's most painful problems: the agunah — a woman whose husband refuses to grant a religious divorce (get). This legal tool has become increasingly mainstream across Orthodox communities.
The Chained Woman
In halakha (Jewish law), a marriage can only be dissolved when the husband willingly grants his wife a get — a Jewish divorce document. Without a get, the marriage remains valid in the eyes of Jewish law, regardless of what any civil court has decided.
This creates a devastating vulnerability. If a husband refuses to give a get — out of spite, as leverage in divorce negotiations, or simply to exercise control — his wife becomes an agunah: a “chained woman,” halakhically bound to a marriage that has ended in every way except the one that matters under Jewish law.
She cannot remarry in an Orthodox ceremony. If she has children with another man, those children would carry the halakhic status of mamzer — a category with severe restrictions on whom they may marry. The consequences cascade across generations.
The agunah problem has been called the greatest ongoing injustice in Jewish family law. And the halakhic prenuptial agreement is the most practical tool devised to address it.
The Scale of the Problem
Estimates of the number of agunot (plural) vary, but the problem is not rare. Jewish community organizations receive hundreds of cases annually of women whose husbands refuse or delay giving a get. Some men use the get as a bargaining chip — demanding financial concessions or custody arrangements in exchange for the religious document. Others simply refuse out of cruelty.
Traditional remedies have been limited. A rabbinical court (beit din) can order a husband to grant a get, but enforcing that order is difficult when the husband refuses to comply. Social pressure, communal sanctions, and in Israel, certain legal mechanisms, have been employed — but none has been fully effective.
The Prenuptial Solution
The halakhic prenuptial agreement, developed primarily by the Beth Din of America (BDA) under the guidance of Rabbi Mordechai Willig and endorsed by major Orthodox authorities, creates a contractual obligation before the marriage begins.
The key mechanism: the husband agrees that if the couple is living separately and he has not given a get, he will pay his wife a daily support sum (currently $150 per day in the standard BDA agreement). This amount is not alimony or a penalty — it is framed as spousal support, a concept with deep roots in Jewish and secular law.
The practical effect is powerful: a husband who refuses to give a get faces mounting financial obligations. The incentive to participate in the get process is immediate and tangible.
The agreement is carefully constructed to be valid under both halakha and civil law. It has been upheld in multiple court proceedings and is recognized by batei din across the Orthodox world.
Growing Acceptance
The halakhic prenuptial has moved from a niche innovation to a mainstream expectation. The Rabbinical Council of America (RCA), the largest body of Modern Orthodox rabbis in North America, has adopted a policy encouraging its members to refuse to officiate at weddings unless the couple signs the prenuptial. Many yeshivot and Jewish educational institutions promote it to their students.
Leading halakhic authorities who have endorsed the prenuptial include Rabbi Hershel Schachter, Rabbi Gedalia Dov Schwartz, and Rabbi Asher Weiss. Their endorsements have been crucial in persuading communities that the agreement is halakhically sound.
The Broader Context
The prenuptial agreement does not solve every dimension of the agunah problem. It does not help women already trapped in marriages without a get. It does not address cases where the husband has disappeared or is mentally incapacitated. And it requires that both parties sign willingly before the wedding — a step that some couples still skip.
Other approaches — including legislation in Israel granting rabbinical courts enforcement power, prenuptial agreements in the Conservative and Reform movements, and advocacy organizations like the Organization for the Resolution of Agunot (ORA) — complement the prenuptial.
Prevention Over Cure
The genius of the halakhic prenuptial is that it prevents the problem rather than trying to solve it after the fact. By establishing financial obligations at the happiest moment of a couple’s life — the wedding — it ensures that both parties enter marriage with a commitment to fair treatment at its end.
As one rabbi put it: “The prenuptial is not about planning for divorce. It is about building a marriage on a foundation of justice.”
Frequently Asked Questions
What is an agunah?
An agunah (literally 'chained woman') is a woman who is halakhically trapped in her marriage because her husband refuses to grant a get (Jewish divorce document) or because his status is unknown (e.g., he has disappeared). Without a get, she cannot remarry under Jewish law. Any children from a subsequent relationship would be considered mamzerim (of illegitimate status) — a devastating halakhic consequence. The agunah problem has been called 'one of the great tragedies of Jewish law.'
How does the halakhic prenuptial agreement work?
The most widely used halakhic prenuptial agreement, developed by the Beth Din of America, obligates the husband to pay a daily support sum (typically $150/day) to his wife if they are living apart and he has not given a get. This financial obligation creates a strong incentive for the husband to participate in the get process. The agreement is structured to be enforceable in both Jewish and civil courts.
Do rabbis support halakhic prenuptial agreements?
Support has grown dramatically. Major Orthodox rabbinic authorities — including Rabbi Hershel Schachter, Rabbi Gedalia Dov Schwartz, and others — have endorsed the halakhic prenuptial. The Rabbinical Council of America has made it institutional policy that its member rabbis should encourage or require the prenuptial. Some communities now expect it as standard practice before performing a wedding.
Sources & Further Reading
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