A Suggested Antenuptial Agreement: A Proposal in Wake of Avitzur
Rabbi J. David Bleich

With emancipation and the conferral of the full complement of civil rights upon Jews, authority over matters of marriage and divorce was no longer permitted to remain the exclusive domain of rabbinic authorities. Thus, a marriage valid in terms of religious law might be terminated by the divorce decree of a secular court. Although of unquestionable validity for purposes of civil law, such divorce decrees are totally devoid of significance insofar as religious law is concerned.

When both marriage partners profess allegiance to Jewish law and both desire to be free to enter into a new marital relationship, the parties usually cooperate in the execution of a religious divorce, or get, thereby satisfying the requirements of Jewish law. A problem arises when one of the parties is unconcerned with religious proscriptions concerning remarriage without a prior get or when one party does not contemplate remarriage and, by reason of acrimony or malice, seeks to impede the other party from entering into a new marriage.

Such problems usually arise as a result of the refusal on the part of the husband to execute a get. It is indeed true that, by virtue of an edict promulgated by the 11th century authority, Rabbenu Gershom, no religious divorce may be effected without the consent of the wife and hence a wife may prevent the remarriage of her estranged husband if she refuses to accept a get. However in practice, it often proves to be much easier to secure compliance of a recalcitrant wife than of a recalcitrant husband. Although all plural marriages are now banned by virtue of another edict promulgated by Rabbenu Gershom, biblical law does sanction polygamy. In certain very limited circumstances, e.g., insanity or mental incapacity of the first wife, a man may marry a second wife even subsequent to the edict of Rabbenu Gershom. Another exception to the ban against polygamous marriage is found in the situation of a husband whose wife has abandoned him but who steadfastly refuses to accept a bill of divorce. Since the disintegration of the marriage is attributable to abandonment by the wife, and since it is she who refuses to accept a divorce, it would, in the absence of a biblical prohibition against polygamy, be inequitable to bar the husband from taking another wife by reason of rabbinic legislation. However, the edict of Rabbenu Gershom does require that a minimum of at least one hundred scholars domiciled in at least three different countries or, according to some authorities, three different jurisdictions, certify that dispensation for a second marriage is factually justified. The rationale underlying this exception to the ban against plural marriage is particularly cogent if the edict against plural marriage is construed as having been designed to safeguard the welfare and status of the wife. A woman who has abandoned her husband and home without leave of a Bet Din is not entitled to, and presumably does not need, such protection. This resembles the legal principle that equitable relief and protection is accorded only to those who appear before the court with "clean hands." Hence, unless the wife has contested the civil divorce or otherwise professes a desire for restoration of domestic harmony, the wife's refusal to accept a get subsequent to the civil decree may, in fact, entitle the husband to a dispensation to remarry, known as a heter me'a rabbanim. Often the realization that, in the light of her own intransigence, the husband's petition for a heter me'ah rabbanim is likely to be granted is sufficient to engender a willingness on the part of the wife to enter into negotiations for the execution of a religious divorce.

Since polyandry is forbidden by biblical law, no provision similar in effect to that of the heter me'ah rabbanim could possibly be instituted on behalf of the wife. In the absence of a valid get any subsequent marriage which may be contracted by the wife is nothing other than an adulterous liaison and any issue of such an adulterous union will unavoidably suffer the stigma of bastardy. Since no device similar in nature to the heter me'ah rabbanim could be devised in order to enable the wife to remarry, it is not surprising that the number of women prevented from remarrying by reasons of religious scruples far exceeds the number of men finding themselves in the same quandary.

Post-emancipation Jewry is increasingly confronted by the problem of the modern-day agunah, a "chained" woman denied consortium and other marital prerogatives but unable to enter into a new marital relationship because of the husband's refusal to execute a religious bill of divorce. In an age of an ever increasing rate of divorce what was once the tragic plight of the few has become a societal problem of statistically significant dimension. In times gone by, the husband's own desire to be free to enter into a second marriage usually constituted a measure of self-interest sufficiently strong to guarantee cooperation. Moreover, an autonomous judiciary had available to itself other coercive measures which it might employ at its discretion. With the loss of formal judicial authority there remained only the power of moral persuasion; with the erosion of moral authority such already weakened power may, at times, degenerate into total impotence. As a result there has arisen a pressing need for finding ways and means of assuring that a Jewish husband will not avail himself of civil remedies for relief of his own marital obligations and constraints while refusing to make it possible for his estranged wife to remarry with ecclesiastic blessing.