The Legacy of Rabbi Feivel Cohen vis-à-vis the Agunah Problem by Rabbi Shalom C. Spira

 Last month, on 26 Marcheshvan, 5783, Rabbi Feivel Cohen – author of Badei ha-Shulchan and other works – ascended to the Heavenly Academy. Ten days later, Rabbi Mordechai Willig – chief justice of the Beth Din of America – delivered an eloquent appreciation for Rabbi Cohen [available at <https://www.yutorah.org/sidebar/lecture.cfm/1051145/rabbi-mordechai-i-willig/eruv-in-brooklyn-some-words-on-rav-feivel-cohen/>] , in which he mentioned Rabbi Cohen’s legacy vis-à-vis the agunah problem. I wish to respectfully yet carefully review Rabbi Willig’s remarks in the present essay, ke-darkah shel Torah. 

            The bulk of Rabbi Willig’s lecture explores Hilkhot Eruvin. Seeking to solve a particular difficulty in the field that is raised by Sfat Emet, Rabbi Willig [commencing 53:50 into the recording] cites a brilliant insight of Rabbi Cohen’s book Da‘at Kohen which clinches the discussion. It is at this point that Rabbi Willig turns to eulogizing Rabbi Cohen by describing the latter [not only as a proficient scholar in Eruvin but also] as a closet supporter of his prenup [viz. the 1993 Beth Din of America prenup] designed to rescue agunot. 

            Specifically, Rabbi Willig reports that – years ago, when Rabbi Willig was first contemplating his proposed prenup [before its ultimate release in 1993] – he studied Rabbi Cohen’s book Mi-Dor le-Dor, where the author elucidates how to execute an estate-inheritance-will via a shtar chatzi zakhar without running afoul of the rules of asmakhta (a contingency agreement wherein the person accepting liability never seriously anticipates that his obligation to pay will materialize and hence is halakhically invalid). After digesting the book’s contents, Rabbi Willig arrived at the conclusion that the same mechanism which Rabbi Cohen employs to bypass the asmakhta problem for a shtar chatzi zakhar can likewise bypass the asmakhta problem for committing a husband to pay his wife money as soon as she moves out of the house until such time as the husband will grant a get [=the essence of Rabbi Willig’s prenup, and a putative formula to rescue agunot].  

Seeking confirmation, Rabbi Willig approached Rabbi Cohen with the prenup idea. In Rabbi Willig’s words: “He was very nice to me. He said: ‘You know, it’s very good, the sevara is right, but we’re not doing it over here in Brooklyn.’” The implication of Rabbi Willig’s testimony is that Rabbi Cohen agreed to his prenup in principle, but simply as a matter of voluntary policy [so as not to rustle the feathers of fellow Brooklynites] preferred not to implement the concept in his community. 

            Alas, Rabbi Willig’s extrapolation from shtar chatzi zakhar to the laws of gittin [and likewise Rabbi Cohen’s reported closet support thereof] is (be-mechilat Kevod Toratam) tenuous. In the case of a shtar chatzi zakhar, the sober-minded individual signing the document knows in advance that there is a reasonable probability he will die (until we are privileged to experience the messianic era when the mal'akh ha-mavet will disappear, as per the Gemara, Sukkah 52a) and so he sincerely wishes to bequeath property to others a moment before death occurs [as the shtar chatzi zakhar declares]. By contradistinction, in the case of Rabbi Willig’s prenup, the groom who signs the document does not seriously entertain the probability that his wife will ever demand divorce in the future. [If he realized that this was such a demanding wife, he wouldn’t have signed the document in the first place.] Hence, the quotidian money transfer specified in the prenup indeed represents an asmakhta which the husband is not obligated to pay, and if a secular court nevertheless threatens the husband that he will lose the specified money until he grants a get, then the get is invalid as per the Mishnah, Gittin 88b [that a get coerced by a secular court contrary to Halakhah is invalid].   

            Admittedly, it is true that the Mishnah, Makkot 3a compares the actuarial probability of future death to the actuarial probability of future divorce in calculating how much money to fine edim zomemin (witnesses who claimed that a husband divorced his wife without granting a ketubah, and were then discovered to be false by virtue of their not being in the location of the alleged divorce at the time of the alleged divorce). Perhaps it is this Mishnah that caused Rabbi Willig and Rabbi Cohen to believe that we can extrapolate from the shtar chatzi zakhar (i.e. anticipation of death) to the prenup (i.e. anticipation of divorce). Even so, however, a careful examination of Makkot 3a reveals that [regarding divorce] the Mishnah is discussing the actuarial probability that the husband will offer a get to his wife of his own free will in the future, not the actuarial probability that the wife will demand a get from her husband in the future [the latter representing the basis of Rabbi Willig’s prenup]. Thus, it remains the case that Rabbi Willig’s prenup is subject to the asmakhta objection. Ergo, it is precisely because of our sympathy for agunot that we should encourage any married couple which has signed Rabbi Willig’s prenup to sign the release form [revoking the secular court’s ability to enforce Rabbi Willig’s prenup] in Section A of my relevant essay at <http://www.scribd.com/doc/176990434/Prenuptial-Agreements>. Otherwise, the wife may be stuck with an invalid get and hence remain an agunah. The same message [albeit without a sample release form] is offered by Rabbi Pinchas Spira [no immediate relation to this student] in his treatise Kedushat ha-Nissu’in, available at <https://hebrewbooks.org/60970>.  

            Me-inyan le-inyan be-oto inyan (to borrow the expression from Kiddushin 6a), Rabbi Willig’s prenup plays an illuminating role in the specific agunah case of Epstein vs. Friedman. Namely, as reported at <https://yucommentator.org/2012/04/panel-featuring-current-agunah-confronts-crisis/>, on March 29, 2012, Rabbi Hershel Schachter claimed that [notwithstanding Exodus 20:14, which prohibits arbitrarily telling a husband to divorce his wife, nevertheless] Mr. Aharon Friedman is obligated to grant Ms. Tamar Epstein a get because nobody told her about Rabbi Willig’s prenup before her marriage to Mr. Friedman. Had she known about Rabbi Willig’s prenup, she would have executed it prior to her chuppah and thereby enjoyed an automatic “get out of jail free” card.  

Alas, this approach (while well-meaning) represents a compounded error by Rabbi Schachter (be-mechilat Kevod Torato). Firstly, Rabbi Willig’s prenup would not have rescued Ms. Epstein from her agunah predicament since the prenup does not work altogether [as argued in the present article]. Secondly, even if there would be an [alternate] prenup that does work to rescue agunot [which indeed there fortuitously is, as explained in Section Q of my aforementioned essay at <http://www.scribd.com/doc/176990434/Prenuptial-Agreements>], failure to apprise the bride of the existence of the prenup [while perhaps unprofessional/unethical on the part of the mesader kiddushin who should have informed the bride in advance] most certainly does not constitute grounds for a Beth Din to subsequently obligate the husband to grant a get. See Shulchan Arukh Even ha-Ezer nos. 77 and 154.

            And this brings us to my final point. Notwithstanding his reported closet support of Rabbi Willig’s prenup, Rabbi Feivel Cohen has clearly announced [in a public manner, and not merely in a private conversation] that Ms. Epstein remains the wife of Mr. Aharon Friedman according to Torah law. [See <http://daattorah.blogspot.com/2016/01/rav-feivel-cohen-rules-heter-is.html>, and my elaboration at <http://daattorah.blogspot.com/2022/07/response-to-eulogy-for-rabbi-nota-zvi.html>.] Ergo, if we genuinely wish to honour the legacy of Rabbi Cohen vis-à-vis the agunah problem, we should all politely pray that Ms. Epstein soon return to Beth Din with her true husband Mr. Friedman. And this is an especially appropriate aspiration for Chanukah, since the final paragraph of Rambam, Hilkhot Chanukah points out that the Holy One, Blessed Be He, will even allow His Name to be placed in water in order to bring peace between husband and wife. 

  

Rabbi Spira works as Editor of Manuscripts and Grants at the Lady Davis Institute of Medical Research [a Pavillion of the Jewish General Hospital] in Montreal, Canada. 

Tish‘ah be-Av and the Agunah Problem by Rabbi Shalom C. Spira

    The Gemara, Ta‘anit 30a, prohibits most areas of Torah study on Tish‘ah be-Av. One of the few permitted exceptions, as identified by Mishnah Berurah, Orach Chaim 554, se’if katan 3, is the passage in Gittin 55b-58a regarding the Temple destruction. The conclusion of that passage – an exposition of Micah 2:2 – is interpreted by Maharsha (Chiddushei Aggadot) as declaring that if even one husband is wrongfully pressured to divorce his wife [in violation of Exodus 20:14] or if even one marriage is poisoned by adultery – then the entire Jewish People is held accountable to collectively protest. Thus, it emerges that Tish‘ah be-Av is a time to reaffirm our commitment to the sanctity of marriage – and to eschew half-baked solutions to the agunah problem – as I previously wrote at <http://daattorah.blogspot.com/2023/01/the-legacy-of-rabbi-feivel-cohen-vis.html>.

      R. Simchah Rabinowitz, Piskei Teshuvot al Mishnah Berurah Chelek Shishi, points to another exception presented by Mishnah Berurah, this time in se‘if katan 5. Where a halakhic verdict is urgently needed on Tish‘ah be-Av for a sick patient or for litigants in a monetary dispute (who cannot wait until tomorrow), a decisor may study the case as is necessary to provide immediate guidance. Rabbi Rabinowitz explains that this is what justified R. Shalom Mordechai Schwadron, Teshuvot Maharsham, I, no. 84, to formulate a responsum on Tish‘ah be-Av to permit an agunah to remarry. Indeed, Rabbi Schwadron concludes that responsum by citing Bach to the effect that rescuing an agunah is a spiritual achievement equivalent to rebuilding one of the ruins of Jerusalem. 

            Upon careful reflection, it emerges that there is no contradiction between the aforementioned Maharsha and Maharsham regarding the agunah-problem message of Tish‘ah be-Av [and, poetically enough, their works carry almost identical names]. Where the Oral Torah declares that an agunah can remarry, such as the case of Maharsham in which he discovered sufficient circumstantial evidence to presume the first husband to be dead, then it is indeed a great mitzvah to enable this remarriage. But where the first husband is demonstrably both alive and innocent of any wrongdoing, then Maharsha directs us to respect that first (and only) marriage. 

For this reason, R. J. David Bleich, responding to the 1992 New York Get Law [a well-meaning but unfortunately less-than-successful attempt to solve the agunah problem], comments as follows [available at <https://traditiononline.org/communications-86/> ]:

                "Regrettably, instead of serving as a panacea resolving the plight of the agunah, the Get Law has itself                       created countless agunot. It is precisely because of concern for agunot that the Get Law cannot                       be allowed to stand."

In other words, we must always take into consideration the Maharsha vs. Maharsham dichotomy, thereby distinguishing true from imagined solutions to the agunah problem. That is why my own prenup proposal [available at <http://www.scribd.com/doc/176990434/Prenuptial-Agreements>] contains a clause shielding the husband and wife from any secular court that might wreak havoc with a get. 

Prenuptial Agreements | PDF | Halakha | Hebrew Words And Phrases Halakhic analysis of prenuptial agreements, leading to a combination of two halakhically kosher prenuptial agreements to benefit the Jewish wife www.scribd.com

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Continuing on this theme, I would like to highlight my recent exchange with R. Heshey Zelcer in Hakirah Vol. 28 (Spring 2020) [available at <https://hakirah.org/Vol28Letters.pdf>] regarding the [once again well-meaning] Yashar Prenup. I hypothesize that the poskim who are advertised as supporting this prenup (R. Moshe Sternbuch, et al, be-mechilat Kevod Toratam) innocently glossed over paragraph 16 of the agreement, which states as follows: 

 

           “At the initial session, Beth Din shall outline the issues between the Parties and make a            determination of the interim payments necessary to ensure that the lifestyle of the un-                                emancipated children of the household (if any) can be maintained, and that they can continue            to attend yeshiva.” 

 

 Rabbi Sternbuch et al do not raise an objection to this paragraph, presumably because it does not explicitly require the husband to pay the wife until he grants her a get. However, as one can discern from the aforementioned Hakirah exchange, Rabbi Zelcer effectively interprets this clause to in fact mean that the Beth Din will direct the husband to pay the wife until he grants a get. And so, the Yashar Prenup seems to present a problem that is essentially identical to that of the RCA prenup, the latter representing a prenup that Rabbi Sternbuch and others have identified would produce an invalid get. [See <https://hebrewbooks.org/60970>.] 

A careful examination of Rabbi Sternbuch’s letter of approbation for the Yashar Prenup [available at <https://yasharinitiative.org/docs/RabbiMosheSternbuch.pdf>] reveals that he is appreciative to the framers of the prenup for keeping the Jewish litigants out of secular court. However, Rabbi Sternbuch does not say that he permits charging the husband money until the latter grants a get, and – indeed – he could not permit such an innovation without contradicting what he wrote regarding the RCA prenup. [For a different perspective (than mine) on the Yashar Prenup, see Yechezkel Hirshman at <https://achaslmaala.blogspot.com/2023/01/prenups-xii-straight-dope-on-yashar.html>. Hirshman does not believe that the Yashar Prenup actually costs the husband any money, yet he concurs in practice (with me) to keep the proposal on ice. See there for his illuminating approach.] 

      

Rabbi Spira works as the Editor of Manuscripts and Grants at the Lady Davis Institute of Medical Research, a pavilion of the Jewish General Hospital in Montreal, Canada. 

The Legacy of Rabbi Feivel Cohen vis-à-vis the Agunah Problem – Part 2 bv Rabbi Shalom C. Spira

 The Legacy of Rabbi Feivel Cohen vis-à-vis the Agunah Problem – Part 2 

                                                Shalom C. Spira 

 

As I wrote in my previous article at <http://daattorah.blogspot.com/2022/12/the-legacy-of-rabbi-feivel-cohen-vis.html>, the legacy of R. Feivel Cohen vis-à-vis the agunah problem – as he sought to publicly express it – is that the Jewish faith considers Ms. Tamar Epstein to be the wife of Mr. Aharon Friedman. At the same time, it has also been argued [by R. Mordechai Willig] that there is an additional dimension to Rabbi Cohen’s legacy, viz. that he quietly supported Rabbi Willig’s prenup to resolve future agunah cases, based on an extrapolation from shtar chatzi zakhar to the laws of gittin. My article challenged the latter extrapolation, be-mechilat Kevod Toratam. 

 A recent audio recording (dated Oct. 26, 2018) demonstrates that my opinion is shared by R. J. David Bleich. Actually, Rabbi Bleich already contested Rabbi Willig’s prenup back in 1996 in his Be-Netivot ha-Halakhah Vol. 1 (which is elaborated in Section A of my prenup essay at <http://www.scribd.com/doc/176990434/Prenuptial-Agreements>). The novelty of the 2018 audio recording is that Rabbi Bleich responds to the specific claim that the shtar chatzi zakhar should serve as a precedent for Rabbi Willig’s prenup. Rabbi Bleich orally counters that this specific claim is “nonsense.” The shtar chatzi zakhar represents a kinyan me-chayim, viz. a mercantile acquisition orchestrated from the time that the client is alive, to bequeath property to his daughter [or some other beneficiary who would not normally inherit according to the algorithm of Numbers 27:8-11] in a manner that takes effect a moment before the client’s death. By contradistinction, Rabbi Willig’s prenup consists of a penalty on the husband for not getting along with his wife and additionally not granting her get. Since there is no gemirat da‘at [seriousness of intention] on the part of the husband, the husband is not obligated to pay the money by Torah law. [And since the secular court will nevertheless enforce the financial penalty, the resulting gittin are invalid.] My thanks are extended to R. Yisrael Zvi Harari, a disciple [of both Rabbi Bleich and Rabbi Willig] at the RIETS kollel le-hora’ah, who conducted the interview and provided me with the audio recording, available at <https://soundcloud.com/shalom-spira/interview-with-rav-bleichmp3>. 

I also received supportive e-mail feedback (on Jan. 2, 2023) from Yechezkel Hirshman (a marriage counsellor and to‘en-in-training who has published an in-depth critique of many different prenups – including my own – at <https://achaslmaala.blogspot.com/2023/01/prenups-xii-straight-dope-on-yashar.html>). Yechezkel wrote to me (inter alia) as follows: 

 

“As per the situation with HRHG Rav Feivel Cohen ZTL, I agree with you that expressing agreement to a specific Halachic construct is not to be construed as an agreement on a compound Halachic innovation. I also agree with your distinction between a shtar chatzi zachar and a get. I think it is pretentious for anybody to claim a deceased gadol as a "closet supporter" of a very contentious issue.” 

 

            Accordingly, let us honour the legacy of Rabbi Cohen by politely praying that Ms. Epstein soon return with her true halakhic husband [Aharon Friedman] to Beth Din, and let us likewise politely encourage all couples that have signed Rabbi Willig’s prenup to sign a release form from that prenup [even if the latter concept contradicts Rabbi Cohen’s closet support]. Ultimately, as underscored by R. Joseph Ber Soloveitchik’s 1975 lecture recorded at <https://www.yutorah.org/lectures/lecture.cfm/767722/rabbi-joseph-b-soloveitchik/gerus-mesorah-part-1/>, a key dividing line between Orthodox Judaism and heterodoxy is that the former respects the sanctity of marriage, pursuant to the Gemara, Kiddushin 2b that betrothal is called kiddushin because the wife becomes forbidden to the entire world like hekdesh (the Temple treasury). Thus, half-baked solutions to the agunah problem must be avoided by Orthodox Jews. 

 

Rabbi Spira works as the Editor of Manuscripts and Grants at the Lady Davis Institute for Medical Research [a Pavillion of the Jewish General Hospital] in Montreal, Canada. 

What is a "halachic prenup" as opposed to a non-halachic prenup?

Guest Post by יְדֵיכֶם דָּמִים מָלֵאוּ

The organization that boasts as being the primary educators encouraging Torah-observant Jews to sign a prenuptial agreement, has named it the “‘halachic' prenup.”

What is the word “halachic” meant to suggest and insinuate? Are there any recognized halachic authorities who have ruled that there is a requirement for a marrying couple to sign this prenuptial agreement. If so, who? The only explanation is that since there were and are certain prenuptial agreements that run contrary to halacha and produce an invalid get, ORA is attempting to say that this particular prenuptial is different, as it does not run contrary to halacha according to some poskim.

However, this label is disingenuous and misleading. Does ORA promote calling our jackets "halachic jackets"? Since certain jackets contain wool and linen (shatnez) and are halachicly prohibited to be worn, shouldn't we call those jackets that we may wear "halachic jackets"? The most that anyone would call it would be a “kosher” jacket. No one would call it a “halachic” jacket. As such, the most ORA should call this prenuptial should be a “prenup that is kosher according to some rabbis.”

It appears obvious that the term “halachic” is being used to entice the unknowing and the unquestioning into signing this agreement. ORA understands that asking people to sign a prenuptial that is only potentially kosher would cause the bride and groom to carefully review and deliberate whether or not they would like to sign this prenuptial agreement. The result would be that even fewer people would agree to sign it.

Is there any other explanation?

Additionally, at the Mendel Epstein torture trial, other questionable practice standards of ORA and the BDA have come into light. ORA went out on a limb to help a woman without ever having made contact with her purported estranged husband. Nathan Lewin, a defense attorney in the torture trial case, explained how easily the BDA was duped into writing a “siruv” or excommunication against a nonexistent man. The purported brother and sister showed the BDA an email that they claimed the nonexistent Alex Marconi wrote. Of course, they simply opened up an email account themselves, wrote the email, and claimed that it came from "Alex Marconi." They also provided the address of a Florida post office as Mr. Marconi’s address.

It becomes quite obvious that ORA and the BDA did not do any due diligence before waging war with "Mr. Marconi." A simple internet search would have verified that the address provided was that of a post office. A few phone calls to local community members of “Mr. Marconi” would have revealed that he is not existent, and would have blown the FBI’s cover. Yet, ORA and the BDA did not bother investigating. Interestingly, it seems that the FBI was completely confident that their cover will not be blown by some basic, basic research by either ORA or the BDA. Why?

Are these the organizations that we would like to entrust with our marriages? Are these the organizations we would like to rely upon to validate highly questionable gitten, when major halachic authorities have ruled that children resultant of a subsequent marriage after a first marriage was terminated by a get procured through their prenuptial are mamzeirim?

Get Me'usa explicit threat only?

On Mon, Nov 18, 2019 at 11:39 PM Rav Shalom Chaim Spira ; wrote:

Shalom Aleikhem Ha-Rav ha-Ga'on R. Daniel Eidensohn, shlit"a,

Thank you for the honour of the question. In response, I am enclosing a scan of Be-Netivot ha-Halakhah Vol. 1 (KTAV Publishing, 1996), pp. 47-52, where R. J. David Bleich answers your question [in the specific context of the 1992 New York Get Law] by arguing that even an implicit threat of financial coercion - if understood as such by a typical husband - will disqualify the resulting get. Of special interest is footnote 16, where Rav Bleich raises a havah amina that perhaps his "implicit coercion" thesis is at odds with Chazon Ish, but then answers Chazon Ish in such a manner to be consistent with his thesis. To this student, it seems intuitive that Chazon Ish is in harmony with Rav Bleich's thesis; see Section L of my prenup essay <http://www.scribd.com/doc/176990434/Prenuptial-Agreements> where I present Chazon Ish as such. 

Now, although you did not specifically ask me about the South African Get Law identified by Iggerot Mosheh, Even ha-Ezer IV, no. 106, I see that in your post you raised the issue, so allow me to refer you to Section J of my aforementioned where I offer different approaches to that South African responsum. 

[N.B. My prenup essay assumes that Vol. 7 of Iggerot Mosheh (which includes the South African Get Law responsum) represents the considered ruling of R. Moshe Feinstein - delivered while he was in good health - and therefore needs to be carefully studied-and-applied like the first six volumes of the same work. However, after I already published my prenup essay (which I am no longer at liberty to modify since it is now being studied by a secular Canadian court, and be-Ezrat Ha-Shem Yitbarakh this will result in a very positive blessing for Canadian Jewry), this student discovered that Rav Bleich has issued contradictory indications on whether he accepts the provenance of Vol. 7 of Iggerot Mosheh. I refer to this concept in footnote 239 of my brain death essay at <http://www.scribd.com/document/375175373/Halakhic-Bioethic >. In any event, I don't think this will result in a practical halakhic difference: neither for coerced gittin nor for brain death. It's more of an academic fascination. And, of course, Kevod Torato ha-Rav has publicized this academic fascination at http://daattorah.blogspot.com/2019/01/who-wrote-late-volumes-of-igrot-moshe.html ]

For Orthodox Jews, a Different Kind of Prenup

Wall Street Journal

The halachic prenup—which dates back decades and has been championed by the Beth Din of America, the U.S.’s biggest rabbinical court—has gone mainstream in some circles as a mechanism to avoid the messy, sometimes abusive situations that advocates say can arise as divorce becomes more common in the Orthodox Jewish community.

The prenup serves to reduce the incidence of agunot, a Hebrew term for women who remain married against their will. Orthodox Jewish couples need to both civilly and religiously divorce, and only men have the power to grant the religious divorce, called a “get.”

A husband’s refusal to grant a get is part of a pattern often common in domestic-abuse situations because it is an assertion of power and control over his wife, with economic and social ramifications that are unique to Orthodox communities, said Orly Kusher, an attorney at Sanctuary for Families, a New York-based advocacy group for domestic-violence victims. She leads the group’s new legal-services program focused on agunot.

In situations where women are refused a get, Ms. Kusher said, they are often not allowed to participate in religious ceremonies, and can be denied access to shared finances and to children. The women are sometimes ostracized from the larger Orthodox community, she added, their reputations damaged and religiosity called into question.

“It can be tough on their children,” Ms. Kushner said, “because when they approach the age when they are getting married, they are seen as damaged goods.”

Over 15 years of serving domestic-abuse victims, Shoshannah Frydman, a social worker and clinical director of family violence and social services at New York’s Metropolitan Council on Jewish Poverty, said she has seen an increasing number of Orthodox Jewish women coming to her agency seeking help and who are often unable to obtain a get. 

Most notable, she said, is the change in demographics. Years ago, her clients were in their 50s and 60s, with children who were also married. Now, she said, more of her clients are in their 20s and 30s, with one or two young children. “That is very significant because it means there is more awareness in the community,” Ms. Frydman said.

The drive toward more women seeking help, advocates and rabbis say, is partly a reaction to modern times. It used to be that communities were bound by geography, with limited mobility and strong rabbinical courts. Under those circumstances, a man refusing a get would be ostracized.

Now, to pressure a man withholding a get, people and organizations take to Twitter and Facebook, hold protests at his home or submit his name to a list published in the Jewish Press, an independent weekly newspaper.[...]

Rabbi Jeremy Stern, executive director of the Organization for the Resolution of Agunot, said his group is currently aiding about 70 women who have been working for years toward a get. Because of that, the organization has raised awareness about prenups and postnups at high schools, colleges and synagogues, even hosting postnup-signing parties. In the past 12 months, 125 prenups and postnups have been included in a registry, up from 48 from the previous 12 months, he said.

“We are very, very strong advocates of the Jewish prenuptial agreement,” said Rabbi Stern, “and we are looking to go out of business by standardizing its use.”

Shabbat Zakhor and the Agunah Problem by Rav Shalom C. Spira

Shulchan Arukh Orach Chaim 685:7 requires all Jewish gentlemen [and according to some interpretations, Jewish ladies as well] to attend synagogue for Shabbat Zakhor, because the special maftir Torah reading constitutes a binding obligation on every individual. Remarkably, the haftarah reading from the Prophets that immediately follows this maftir, while not as weighty in terms of attendance duty, is of special interest to the agunah problem.

      "And Saul came to the City of Amalek, and he waged war in the nachal [wadi]" (I Samuel 15:5). The Gemara, Yoma 22b elaborates on "nachal" to mean that Saul's conscience struggled with the morality of waging war against Amalek in light of the mitzvah of the eglah arufah which is performed in a wadi called nachal eitan (as per Deut. 21:4). Specifically, says the Gemara, Saul contended as follows:

       "If for one soul [that is the victim of homicide] the Torah says to bring an eglah arufah, then how much more so for all these souls [in the City of Amalek]. And if the people sinned, how did the animals sin? And if the grown-ups sinned, how did the minors sin?"

      The Gemara concludes that a Heavenly voice answered Saul "do not be overly righteous" (Ecclesiastes 7:16). Namely, since the Holy One, Blessed Be He, specifically commanded Saul [via Samuel the Prophet] to wage war against Amalek [including children and livestock], therefore by definition the command is perfectly ethical.

      Now, by contradistinction, when we deal with the agunah problem, there is obviously no bloodshed in progress [witticisms about the sequence of Tractates Gittin and Kiddushin left aside], and hence it is fortuitously not as high-intensity an emotional drama. But the same answer that the Heavenly voice gave Saul indeed represents the appropriate repudiation to heterodox groups who insist on every agunah being entitled to leave her husband [no matter whether the husband is guilty or innocent of wrongdoing]: "do not be overly righteous." It is not possible to be more ethical than the Holy One, Blessed Be He, Who Has commanded us as Orthodox Jews to respect the sanctity of kiddushin. 

      There is, of course, a class of delinquent husbands who must be told or even coerced to deliver a get, as per Shulchan Arukh Even ha-Ezer nos. 77 and 154, but this concerns only some [and not all] marital discord situations. A qualified Beth Din must adjudicate these on a case by case basis.

      The above message is eloquently captured in the following 1975 remarks of R. Joseph Ber Soloveitchik [recorded at <https://www.yutorah.org/lectures/767722/>], responding to R. Emanuel Rackman's ill-fated proposal to rescue all agunot by claiming kiddushei ta'ut:

      "The truth is attained from within in accord with the methodology given to Moses and passed on from generation to generation. The truth can be discovered only through joining the ranks of the chakhmei ha-mesorah. It's ridiculous to say 'I have discovered something which the Rashba didn't know, the Ketzos didn't know, the Vilna Ga'on had no knowledge. I have discovered an approach to the interpretation of Torah which is completely new.' [It's] ridiculous. In order to join the ranks of the chakhmei ha-mesorah – Chazal, Rishonim, Acharonim –  we must not try to rationalize from without the Chukei ha-Torah, and we must not judge chukim u-mishpatim with the secular system of man."

      Some confusion appears to have been generated by a recent article published by R. Yonah Reiss claiming that there is a tradition of numerous poskim to find an escape-mechanism for every agunah. In the text accompanying footnote 7 of  <https://bethdin.org/the-halakhic-prenuptial-agreement/>, Rabbi Reiss avers that:

      "For the past one hundred plus years, there have been sustained efforts by numerous Jewish law authorities to formulate a type of prenuptial agreement that would address an additional area of concern within the Jewish community, namely the problem of Agunot (women whose husbands refuse to give them a Get despite the non-viability of their marriage). Since there is a long tradition of employing prenuptial agreements for the protection of a woman’s interests, including sustaining a marriage when in her best interests, or providing support for a woman in a troubled marriage, it seemed logical to use  this time-honored device towards the age-old rabbinic desideratum of preventing women from being Agunot."

      The reference in footnote 7 for the above text is as follows:

      "See the lengthy discussion in the article “Ein T’nai B’nisuin” by R. Tzvi Gartner and R. Betzalel Karlinsky, published in Yeshurun, volumes 8-10."

      Alas, be-mechilat Kevod Torato, Rabbi Reiss is mistaken. The three parts of the Gartner & Karlinsky article [available at <https://hebrewbooks.org/pdfpager.aspx?req=20292&st=&pgnum=690&hilite=>, <https://hebrewbooks.org/pdfpager.aspx?req=20349&st=&pgnum=681)>, and <https://hebrewbooks.org/pdfpager.aspx?req=20399&st=&pgnum=723&hilite=>] actually demonstrate how the consensus of Gedolei Yisrael condemned innovations designed to automatically grant agunot a get [or freedom to remarry without any get whatsoever], and characterized these innovations as heresy. [Cf. R. Moshe Feinstein, Iggerot Mosheh, Orach Chaim, IV, no. 49 who likewise describes as heretics those who attempt to reform halakhah for the sake of the feminist movement.] In my opinion, this also flows from the Mishnah, Yevamot 107a that "the daughters of Israel are not hefker." [N.B. Although Beit Hillel argue against Beit Shammai in that Mishnah with respect to kiddushin de-Rabbanan, the implication is that Beit Hillel concur with Beit Shammai regarding kiddushin de-Oraita, indeed the only form of marriage used nowadays. See also Rabbeinu Tam cited by Tosafot to Ketubot 63b that it is impossible that the Torah would allow an arrangement where every Jewish wife can leave her marriage whenever "she sets her eyes upon a different gentleman."]

      Importantly, Rabbis Gartner and Karlinsky cite (in footnote 103 of the second tier of their article) Rabbi Dr. Bernard Revel, first president of Yeshiva University, as being one of the many rabbis who put a cherem on any mesader kiddushin, groom, bride or witness who participates in a wedding with the heterodox proposal of appointing a shali'ach for a future agunah-rescuing get at the time of the chuppah. This pro-familialism message of President Revel underscores the reality that an agunah who graduates YU has exactly the same halakhah as an agunah who graduates Lakewood or Kiryas Joel.

      To be sure, there is one prenup which the Oral Torah does authorize to help agunot, as I have showcased at <https://daattorah.blogspot.com/2023/07/tishah-be-av-and-agunah-problem-by.html>. Consistent with the aforementioned words of Rabbeinu Tam, any such prenup cannot grant an automatic "get out of jail free" ticket to every agunah. Rather, my prenup [if actually employed before the chuppah] improves the financial position of every wife, allowing her to negotiate with her husband and offer to pay him for a get if both sides can arrive at a common understanding.

      "There is no wisdom and no understanding and no counsel against Ha-Shem" (Proverbs 21:30 cited by Eruvin 63a). The secular values of the street must necessarily defer to the sanctified values of Orthodox Judaism. It was my father's wish that his legacy be perpetuated through the recognition that the kiddushin which Reb Aharon Friedman offered Ms. Tamar Epstein was [and remains] valid, as discussed at <https://daattorah.blogspot.com/2025/01/a-eulogy-for-my-father-bt-av-shalom-c.html>. Let us remember this concept on Shabbat Zakhor.

Rabbi Spira works as the Editor of Manuscripts and Grants at the Lady Davis Institute for Medical Research, a Pavilion of the Jewish General Hospital in Montreal, Canada.

Rav Eliashiv rejected the prenup because of Get Me'usa

Din.org 

Look at the original article plus there are are links to other articles on the topic at the bottom of the original article

Rav Elyashev's strong objections to the prenup is brought down by him in קובץ תשובות ח”ב סקס”ג
 
 

עדויות תלמידי מרן הגרי"ש אלישיב זצ"ל

עדות הגרא"ד לוין שליט"א, ראב"ד בית הדין ירושלים לדיני ממונות ובירורי יוחסין, ובעהמ"ח פסקי דין ירושלים.

בס"ד. לכבוד הרב הגאון רבי פנחס שפירא שליט"א, נו"נ לגדולי ישראל בדורות האחרונים, אחדהש"ט.

מכיון שבקשתם ממני – ברוב ענוותנותכם – לחוות דעתי על מה שעומדים לאשר בחוקיהם לאפשר לכל הנישאים, גם אלו שנרשמים ברבנות, לחתום על הסכם קדם נישואים המחייב את האיש ואת האשה להתגרש כאשר יחליט אחד מהם לכך, ואם לא יחוייב בקנסות כספיים גדולים, שלפי דעתכם יש בזה חוק לעקירת הדת, שהרי מי שמגרש לאחר הסכם כזה נחשב למגרש בכפיה, שאם אין פס"ד של כפיה לגט אזי הגט הזה בטל לפי ההלכה, ובניה מאחר ממזרים!

לדאבון לבי, אני מכיר את הבעיה הזו גם בטרם נחקק חוק כזה בדיניהם, מאז ששימשתי כמנהל מחלקת הנישואין ברבנות ירושלים, בהוראת מרן הגרי"ש אלישיב זצ"ל, וכבר אז הגיעו אלי בני זוג להירשם לנישואין עם הסכמים כאלו ואחרים, ובהנחייתו של מרן זצ"ל לא הסכמתי לאשר אותם אם הם כללו סעיף של כפיה לגירושין שלא כדין.

קריאתכם וזעקתכם על סכנת הממזרות כתוצאה מהסכמים שיש בהם לגרום לגיטין מעושין שלא כדין, מובנת וברורה, וטוב עשיתם שהעליתם על הכתב את הדברים למען ילמדו תועים בינה.

וכבר יצא קול קורא לציבור היראים לדבר ה' מאת דייני בית דיננו שליט"א, שלפני שניגשים לשידוכין יש לברר אם אין ח"ו בעיית יוחסין כזו או אחרת, כי הבעיות רבות וחמורות!

לענ"ד, לאור המצב הקיים, בהם הרבנות הראשית כפופה לחוקיהם, לא נותר ליראי ה' אלא להתנתק ולנהל רישום נישואין וגירושין בבתי דין פרטיים שיבדקו תחילה את כשרות היוחסין כהלכה. כשתימצי לומר, אני קורא בזה להפרדת הדת מהמדינה על כל המשתמע מכך, עד כי יבא שילה ומלאה הארץ דעה.

תבורכו משמים, וכולנו תפילה לבנין ביהמ"ק בב"א.

המכבדכם ומעריככם, אברהם דוב לוין, אב בית דין ירושלים לדיני ממונות ולבירור יוחסין.

עדותו של הגר"נ איזנשטיין שליט"א, רב שכונת מעלות דפנה בירושלים, וראש ועד הרבנים העולמי לעני' גיורים.

לכ' הרב הגאון ר' פנחס שפירא שליט"א, אחדש"ה.

בנידון של מה שמכונה הסכם טרום נישואין שמעתי ממרן הגרי"ש זצוק"ל כמה וכמה פעמים התנגדות מוחלטת לכל סוגי הסכמים (חוץ מהסכם שכתוב בו אך ורק שהצדדים מתחייבים ללכת לבית דין רבני מסויים), שמלבד שלא הוה קידושין ע"פ רוח ישראל סבא לקדש אישה עם מחשבות כיצד להתגרש, אבל עוד יותר חמור שהתחיבויות כאלו עם סכומים של כסף מהווה אסמכתא (וגם לא יועיל קנין בבית דין חשוב ואין פה המקום להאריך בזה) ויגרום לגט מעושה, שידוע דעת מרן זצ"ל שעישוי ממון הוה עישוי (כמבואר בשו"ת תורת חיים), וחלילה יכול להרבות ממזרים בישראל. וע"ז בעה"ח נחום איזנשטיין

Rav Dovid Eidensohn Tel Conf #16 – Prenups Force a Husband to Divorce His Wife Wed 9:30 PM Aug 19

Call 605-562-3130  code 411161#

Prenups are documents a husband signs at his wedding, empowering the wife to leave the house at any time and force the husband to give her a GET. The husband, from the time that the wife leaves the house, must pay his wife a large sum of money regularly, a sum designed to overwhelm his ability to pay and to force him to give her a GET. The Modern Orthodox world is working hard to force every husband to sign a prenup. When that happens, may truly Orthodox people marry children born from Modern Orthodox women who got divorces because of prenups, or not? And what happens if Orthodox husbands sign a prenup and there is a GET? That is our discussion here.