Q. How can Jewish law help a woman to obtain a gett (Jewish bill of divorce)?
A. The denial of a gett can lead to a terrible chillul HaShem. The victim resents the system which anchors her to someone whom she no longer wants, and the media (and public) condemn what they regard as injustice in the halachic process.
A way to prevent the problem is the use of prenuptial agreements. The idea was suggested by Rabbi David Zvi Hoffmann (late 19th cent.). Chief Rabbi Isaac Herzog believed that a halachic prenuptial agreement should become standard at every Jewish wedding.
A halachically acceptable agreement requires more than merely a promise to give a gett. This would be kinyan d’varim, an agreement without substance. Introducing a monetary element avoids this problem, but it needs more than an agreement to pay a fine in case of refusal to give or receive a gett. A penalty agreement is considered an asmachta, which lacks the necessary intent (gemirat da’at), because when the obligation is entered into, the parties presumably do not expect ever to have to pay the specified penalty.
There is also a problem of oness mammon (financial duress). The general rule is that a gett must have the consent of both husband and wife. Many authorities hold that duress of a financial nature renders the gett invalid. However, some rule that a gett is valid ex post facto (b’diavad) if executed as a result of self-induced monetary duress.
Some marriage protection agreements, however, seem to overcome these problems:
1. Binding Arbitration Agreement
The most basic is a binding arbitration agreement in which husband and wife agree to bring gett-related issues to a named Beth Din. Rabbis Moshe Feinstein and JB Soloveitchik found no halachic problem with this type of agreement.
2. Promissory Note Agreement
Rabbi Judah Dick has proposed an agreement which avoids asmachta, and has four parts. Both parties execute an unconditional promissory note of a set amount to the other party; each executes a conditional release and waiver of the obligation of the other party as well as a deferral of the obligation until the parties are civilly divorced. If a gett is given by the husband and accepted by the wife, the obligations are released. If the woman refuses to receive the gett or the husband refuses to give it, the debt is triggered. Neither party can claim that there was no intent to pay the fine, because asmachta only applies to contingent obligations, and this one is absolute, subject to a condition subsequent.
3. Tosefet M’zonot (“Additional Support”) Agreement
A third possibility is an agreement obligating the husband on entering into the marriage to pay his wife a set sum every day “throughout the period during which she does not share his board until a judgment is issued by a Beth Din declaring that she is not prevented from marrying in accordance with the law of Moses and Israel because of him”. This agreement avoids asmachta and oness mammon by making the obligation begin when the marriage is contracted, and integrating the additional obligation into those obligations which already exist.
4. Rabbi Zalman Nechemia Goldberg’s Document
Rabbi Goldberg of Jerusalem recommends two separate contracts. The first is a binding arbitration agreement with a clause providing for the recalcitrant party to pay the legal fees incurred by the other in securing compliance with Beth Din directives. The second obliges the husband to pay support of a set sum if the couple do not continue residence together. The obligation is not a penalty for not appearing at the Beth Din or complying with its decisions; it is an estimate of expenses incurred when a separate household is established.
Asmachta is overcome by making the obligation binding immediately upon entering into the agreement, and written record that the agreement was concluded with a kinyan sudar (a formal procedure) at a Beth Din. The obligation created in this agreement is unconditional, and, unlike spousal support, it continues even if the wife has abandoned her husband (moredet) or earns her own living (ma’aseh yadayim).
(The above is based on a publication issued by Lincoln Square Synagogue, New York.)