Prenuptial contract may solve most painful ‘get’ issues

MOIRA SCHNEIDER

This will hopefully bring to an end the problem of “agunot” (chained women), whose husbands have refused to give them a Jewish bill of divorce or get and is therefore prevented from remarrying according to Jewish law.

“A man also cannot remarry according to Jewish law until he has given a get, but a lot of the time he doesn’t really care about remarrying if he’s the one who’s angry. A lot of the time they use it as a weapon to get money or the kids and it’s a terrible thing for these women,” says Rabbi Yoel Smith.

“A lot of the time a husband just goes missing – he dresses up as someone else,” he adds.

Rabbi Smith, head of the Cape Beth Din, also serves on the Johannesburg Beth Din. He is in addition spiritual leader of the Sha’arei Chaim Congregation in Johannesburg. 

“It’s the same story every time – they’re going at each other, they’re fighting civilly, there are lawyers acting against both sides – basically it’s a nightmare for all of them and the kids are seeing this until the get comes and there’s finality,” he says of the problem.

Things sometimes go the other way when a woman refuses to receive a get, possibly because she wants money from the husband or to prevent him from remarrying.

The prenuptial contract – one entered into before marriage – goes back in Jewish law to the 1600s but fell away by disuse. The agunot story is a new one, only having emerged in the last 30 – 40 years, Rabbi Smith says. 

“It never used to be that the man used it as a weapon. They all lived in ‘shtetlach’.” In these close-knit communities, peer pressure rendered enforcement largely unnecessary, he explains.

In some cases, force was employed “but nowadays, because of the environment that we are living in, we can’t. There are rabbis in jail who have tried to use physical force.”

All these factors have resulted in the change in approach. In this regard, South Africa is following a worldwide trend, tailoring the “prenup” to local conditions.

In the 1980s the Rabbinical Council of America (RCA) developed such a contract that is endorsed in Israel. In 2016, the RCA, the largest organisation of Orthodox rabbis, adopted a resolution requiring its 1 000 member rabbis to require couples to sign a prenuptial agreement before getting married.

The London Beth Din also makes provision for such an agreement.

The idea is that the “prenup” will be incorporated into the regular antenuptial contract (ANC) and will be enforced accordingly. The finer details have yet to be ironed out and the matter is in the hands of lawyers at this stage to ensure that it meets South African legal standards. 

The idea behind it: “Basically, the man has to pay a certain amount every day until he sorts out his Jewish get,” says Rabbi Smith. “I’m not speaking about a personality disorder,” he adds, conceding that there is very little one can do in such a case.

“There are people in jail in Israel who wouldn’t give a get – they would rather rot there, they’re not rational.”

Problems arise when couples who are separated, decide to concentrate on the civil divorce first and thereafter to deal with the get. The civil process can take a year or two and it is during this time that things get messy, for instance with regard to custody of the children, he says.

Because of the increase in anger levels, a man may then refuse to give a get.

“So, what this ‘prenup’ does is it requires the man, after they have separated, to pay a certain amount (maintenance) every day until he sorts out the get’ So, if this is going on for a year, he could be spending R120 000, just because he’s decided to fight the custody of the kids, or something like that.

“This makes him think: ‘Why am I paying extra – let me sort this out first and then I’ll sort out the other issue.’ It makes the risk of not wanting to give a get a lot less.”

Before marriage, couples don’t entertain the possibility that things could go wrong, he states; besides, they cannot be forced to sign. “It is voluntary, but if it’s encouraged and it’s done a lot, I think it will be a major thing.”

The general idea is that the ANC would be made an order of court and enforcement would be by the civil authorities through the attachment of assets.

An amendment to South African law initiated some 20 years ago by the late Chief Rabbi Cyril Harris, also tackled this situation in that a civil divorce could be withheld by the courts until a religious divorce was finalised. “That’s only if the woman claims it,” states Rabbi Smith.

“If a woman doesn’t claim it – a lot of times that’s the issue – then that is a problem.”