Ask the Rabba February 2022

Two Questions for the Rabba:

1. If a ketubah is supposed to protect a woman (which is what everyone claims) how is it possible that recalcitrant husbands are able to legally not only NOT support their wives, but extort thousands of dollars in exchange for giving a gett?

2. How exactly does a halachic prenup work?

These are such important questions – thank you for taking the time to ask. 

Let’s back up a step to remind ourselves of what a ketubah sets out to do for women. After opening with the names and dates and the proposal, it launches right into the man’s obligations in supporting his new wife. In fact, in this clause, the phrase “honor, provide, and support” shows up twice, because it’s so essential that it bears repeating right from the start. Then we get into the ikkar of the ketubah, where we have the setting aside of some money and the re-iteration now that we’ve moved into phase two that the husband is obligated in “food, clothing, and other necessary benefits which a husband is obligated to provide; and (he) will live with (her) in accordance with the requirements prescribed for each husband.”

What is this in reference to? The Torah states explicitly in Shemot 21:10 that if a man takes a second wife he can’t diminish the first wife’s food, shelter, or sex – those are the rights in the marriage. If he stops providing those to her at any time, she is legally allowed out of the marriage. Also built into this structure is that the money set aside in the ketubah is the base for the gett. 

It is worth noting and calling out before moving on just how incredibly progressive it is that from the time of Tanach and built into the wording of the ketubah we are speaking of sex as part of a woman’s basic rights in a marriage. We can take that for granted now, but that has not historically been the reality and I’ve seen historians, sociologists, and anthropologists do this analysis in depth and let’s just say, it’s not common. 

So now to the question… 

As my colleague Rabba Ramie Smith, Executive Director of GettOutUK, once told me, the laws around ketubot and the gett do protect women, however they can’t protect women from everything. A ketubah can demand protection but there isn’t legal protection from men or women who choose not to obey the law by refusing to grant or accept a gett. Just as speed limits only protect us from accidents when people obey them, ketubot only protect women when men give a gett like they are supposed to when a divorce is initiated. It boils down to this – the legal system works under the assumption that people are good and law abiding. It doesn’t account for the small number of people who don’t fear punishment and act with intent to harm. 

Halachic prenups are an interesting and relatively new addition to the field and one way to help reduce the issue of agunot, in places where they are an option. A halachic prenup is a secular legal document signed by two witnesses and accepted by halacha, but not a halachic document. This prenup stipulates what would happen in the event of a divorce if one person refused to give a gett, i.e. which Beit Din to go to, and that the person who is refusing to grant a divorce has to pay X amount of money every week/month that they don’t give the gett. This may be on a sliding scale based on income, as it should be just enough to make it financially impactful if the person does not give the gett, however some prenups have a specific amount already included.

There are a number of organizations which have drafted these documents in both the US and Israel (unfortunately they are not valid in the UK) and are working with couples to have them signed, in some cases even doing postnup parties for people who have been married longer than the halachic prenup has been part of our lexicon. The halachic prenup is a significant step forwards toward ending modern agunot. 

(Yes, there are also men whose wives refuse to grant gittin, and I would be remiss to write this response without making note of that.)

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