12/14/2011 06:30 pm ET | Updated Feb 11, 2012

Rabbinical "Pre-Nups" Can Save Women Chained to a Jewish Marriage

Currently there is a high profile case in the Greater Washington Area of a man named Aharon Friedman refusing to give his ex-wife, Tamar Epstein, a Jewish divorce called a get.

Thus even though Aharon and Tamar are civilly divorced, by Jewish law Tamar is essentially chained to a dead marriage. In colloquial terms she is known as an agunah or a "chained woman."

According to the 2010-2011 North American Study of Agunot conducted by The Mellman Group, there are over 460 cases of agunot in North America in the last five years. This number is probably significantly higher since many organized Jewish groups did not even participate in the study.

The solution of the Rabbinical Council of America (RCA), which is a major Orthodox rabbinic organization, is to encourage couples to participate in a rabbinic prenuptial agreement. The website of the Beth Din of America (BDA, the rabbinical court affiliated with the RCA) touts the prenuptial agreement as a solution to the Agunah problem. They write:

The Prenuptial Agreement is the most effective tool available to solve the Agunah problem. The Beth Din strongly urges its use by all couples who are getting married. The agreement contains a support obligation that formalizes the husband's obligation under Jewish law to financially support his wife, thus providing an incentive for the timely delivery of a get in the event the marriage fails.

The BDA also promotes the fact that "a 2006 RCA resolution provided that no rabbi should officiate at a wedding where a proper prenuptial agreement on get has not been executed." The director of the BDA, Rabbi Shlomo Weissman says that the prenuptial agreement is a "long term solution to the Agunah problem."

But how long-term does the RCA and BDA have in mind?

Aside from the fact that the rabbinic prenuptial agreement is far from a foolproof solution (for reasons we can discuss on another occasion), there is another problem with the stance of the RCA. The problem is that many (by some estimates, the vast majority of) RCA rabbis do not use the prenuptial agreement. The rabbis ignore the resolution and officiate at weddings without a rabbinic prenuptial agreement. Rabbi Weissman personally told me that not as many rabbis as he would like, including RCA rabbis, use the prenuptial agreement.

The RCA should immediately conduct a scientific survey of its members to determine how many of them are using the prenuptial agreement. It should then declare that a rabbi who officiates at a wedding without using the prenuptial agreement is guilty of rabbinic malpractice and will be sanctioned.

The RCA is not a weak organization without an ability to direct its members. When there are renegade rabbis, the RCA makes very clear that these rabbis do not represent Orthodoxy. Recently the RCA targeted Rabbi Avi Weiss and considered whether or not to expel him after he granted a rabbinic-like title to a woman. The RCA held meetings and discussions and very clearly put out the word that such behavior on Rabbi Weiss' part cannot happen again.

Why then the de facto acceptance on the part of the RCA of the abysmal number of rabbis not using the rabbinic prenuptial agreement? Is it because of rabbinic inertia combined with a lack of sensitivity to the agunah crisis? Or is it because opposing rabbi-like titles for women is a more important issue to Orthodoxy than protecting agunot from years, or even a lifetime, of suffering?

There is another Orthodox rabbinic organization called the International Rabbinic Fellowship. Its Executive Committee has already voted in favor of a resolution initiated by Rabbi Dov Linzer that prohibits its members from officiating at a wedding without a rabbinic prenuptial agreement, and advocating expulsion for those who do so. That resolution is now awaiting a vote of the full membership. The RCA should also implement this policy.

A friend of mine, Rabbi Nissan Antine suggests that the Jewish community should even go further. Many Orthodox Jews won't attend a wedding if the food is non-kosher or if it is an interfaith marriage, Rabbi Antine suggests that a new policy should be enacted: If the couple under the chuppah doesn't have a prenuptial agreement, then the guests should skip the chuppah.

I like Rabbi Antine's suggestion and that is the policy that from now on I am recommending to our congregation.