05/24/2012 10:33 am ET Updated Jul 24, 2012

The Halakhic Prenuptial Agreement: A Responsible Solution to the Jewish Divorce Crisis

It was just this past Tuesday evening that a momentous occasion transpired in the conference room of a synagogue in Midtown Manhattan. The event was the International Rabbinic Fellowship (IRF) conference and it brought together a diverse assortment of its approximately 150-member strong rabbinic body. As with every professional conference for rabbis there were opportunities to learn together, to consult on pastoral or policy dilemmas and to provide ample opportunity for networking, relationship building and collective and shared inspiration. Yet, it was during what is normally the least exciting aspect of an organization's conference -- the amendments and other mundane business of the organization component -- that a resolution was passed unanimously that will go a long way in addressing one of the most pressing issues of the contemporary Jewish community: the agunah crisis.

The agunah or agun (literally bound woman or bound man) is the result of a situation where either spouse in a marriage refuses to accept a divorce and quite actually binds the other person in an unwanted marriage unable to begin anew the next chapter in their life. A fundamental aspect of Jewish divorce law is that both spouses need to agree to the divorce. (There are exceptions to this which are not for the scope of this article but nonetheless the situations that warrant those exceptions are, in modern society, rare and the practical application of the attendant leniencies by responsible rabbinic courts even rarer still.) This aspect of the divorce law has an unfortunate consequence of sometimes trapping a person in the confines of a marriage that ended long ago.

Fortunately, there does exist a preventative measure that, if applied maximally, would almost effectively end this from transpiring. This solution is the halakhic (Jewish legal) prenuptial agreement, which is binding in civil court. The basic idea of the prenuptial agreement is that it brings about financial penalties to the resisting spouse for being recalcitrant in the divorce proceedings. The administrators of the largest rabbinic court in the United States, The Beth Din of America, report that in practically every divorce proceeding where a prenuptial agreement was signed, the tragic situation of the bound spouse was avoided. This is a remarkable accomplishment.

However, until this past Tuesday evening there was not a single rabbinic organization which mandated all of its members to only perform weddings with a prenuptial agreement signed. Rabbi Michael Broyde, a member of The Beth Din of America and law professor at Emory University, compares the prenuptial agreement to a vaccine. Vaccines are at their most effective when everyone takes them. Similarly, if we can bring about a near 100 percent rate with the prenuptial agreements we will have gone a long way in profoundly shifting this crisis towards a working pragmatic solution.

It is with great pride, and as it is said in Yiddish, lots of naches, that I can report that the International Rabbinic Fellowship voted to require of its membership to only officiate at weddings that utilize the prenuptial agreement and strongly recommended against participating ritually whatsoever in any wedding that did not use one. There are now rabbis throughout North America and indeed the world serving in synagogues, campuses, community organizations and schools who will ensure that every future husband and wife ready to walk down that aisle helps protect themselves and, more broadly, helps protect the entire Jewish community, by signing the prenuptial agreement. This is not a recommendation. This is not strongly encouraged. This is a clear and unequivocal requirement.

It is my hope and prayer that other rabbinic organizations follow suit and take part in the prevention of a tragic occurrence. It is the ethical and the right thing to do.