Interview about Uruguay’s introduction of obligatory rabbinic pre-nuptial agreements

Interview with Chief Rabbi Ben-Tzion Spitz on Uruguay’s introduction of obligatory rabbinic pre-nuptial agreements.

Interview by Ana Jerozolimski of Semanario Hebreo in Spanish. English translation below.

Q: Rabbi Ben-Tzion Spitz, with good reason it was communicated a few days ago with what I would say were dramatic tones, the achievement of requiring a pre-nuptial agreement of all couples who marry under your auspices as Rabbi of the Kehila. (click here for original announcement). I understand that there are no parallels to this in other Jewish communities in the world, right?

A: The idea of a Jewish pre-nuptial agreement to deal with the issue of giving a get has been around for some time. I was first introduced to the idea in 1991 by Rabbi Haskel Lookstein of Congregation Kehilath Yeshurun of Manhattan, where I worked for him. He was a strong proponent of the requirement of a pre-nuptial agreement to prevent agunot.

A friend of mine and expert on the subject, Dr. Rachel Levmore of Efrat, Israel, informed me that in the 1950s in Morocco, the Jewish community there likewise had a pre-nuptial solution.

The Rabbinic Council of America (RCA) as well as other Beit Dins around the world have been offering such a contract for many years now.

It should be clarified that our agreement obligates both parties. A woman who refuses to accept a get from her husband also “chains” him, preventing him from marrying according to halacha (Jewish Law). Therefore, the woman also needs to agree to receive the get.

Q: The challenge was to adopt a human approach that copes successfully with the social problem of agunot, women who become locked and tied because their husbands refuse to divorce according to halacha, and on the other hand, precisely the religious law. How was it possible to find this formula?

A: Our approach was very simple and direct. Given the unfortunately high rate of divorce and because many people in our community are even unaware of the requirement to give a get in order to end a marriage, we drafted a contract that connects the event of finalizing a civil divorce with the obligation to give the get.

The RCA version, which we initially worked with, spells out and assigns clear financial penalties for every day that a spouse does not give a get. However, we found out that such an agreement is illegal according to the Uruguayan civil code. We needed to come up with something different that on one hand creates an obligation to cooperate with the Rabinate in order to perform the religious divorce, but on the other hand is respected by Uruguayan law. We believe we’ve reached that balance. After the fact, we found out that ours is similar to the one in use by the Bet Din of London.

However, the major achievements of this agreement are as follows: greater awareness that this is an issue, education as to the need for a get and mindset that a get must be given upon divorce. Here and in many communities, the get has been considered an afterthought, optional, and when a man realizes it could be leverage, they use it accordingly.

Almost all the couples that we’ve presented the agreement to, have signed it without a problem.

Q: This agreement is not a specific topic of the Jewish community of Uruguay. I mean it can serve all Jews living outside Israel, because in Israel there is no civil marriage. Would you take steps to share this experience or, for now, this idea, with your peers in other parts of the world?

A: As I mentioned, this theme has been well known by many communities in the USA, though unfortunately many Rabbis still refuse to use or recommend pre-nuptial agreements, which have led to some very sad stories. The initial version of the agreement, I actually received from Rabbi Shai Froidlich (former Chief Rabbi of Uruguay) who has been using his version for his community in Mexico. I shared both the Mexican version and ours with Rabbi Feigelshtock of Buenos Aires, who is adopting it for use in his community. I have since consulted with Dayan Chanoch Ehrentreu of London, who explained to me some of the details of the British version.

Q: Is it conceivable that someone would object to this? Or perhaps beforehand I should ask you if before using this agreement you needed to receive approval of the Central Rabbinate in Jerusalem?

There are two types of objections to the use of such pre-nuptial agreements. The first is a halachic concern. According to Halacha, a get that is “forced” is not valid. However, I believe that the RCA-version, our version and most others that are being used avoid the issue. The agreements do pressure and obligate the spouse to see the get through, but it is not “forced” according to my understanding. But that is an issue that legal and halachic scholars will most likely continue to debate. I likewise welcome further input of scholars, judges and lawyers familiar with the Uruguayan civil code. The RCA version took many years and revisions to reach its current format and I don’t expect our version will be perfect from the start. As I write, we have additional experts reviewing the document.

The second objection is that by forcing a couple to sign such a document, it may scare them off from performing a Jewish halachic wedding and they may opt to perform a non-halachic ceremony that is not recognized by the Kehila or by the Rabbinate of Israel. This is a serious concern that we gave much thought to. There is also an element of this that has been debated within religiously observant circles for some time, especially regarding halachic weddings of non-observant couples.

In order to understand the dilemma, we first need to discuss the repercussions of different actions according to halacha. The first is that the bonds of marriage are sacred, binding and performed in a public act in front of witnesses. If a woman should have children from a different man while still halachically married to the first man, the children of the second union are considered mamzerim (halachically illegitimate) and those children are forever prohibited from marrying another Jew.

I am guided on this subject by one of my Rabbis, Rabbi Yaakov Medan of Yeshivat Har Etzion, one of the leaders on the subject of secular-religious relations in Israel and co-author of the groundbreaking initiative on the subject, the Gavison-Medan Covenant. One of his arguments is that it is much more important that divorce be done according to halacha than that marriage should be done according to halacha. The repercussions are just significantly more severe.

Getting back to the debate about halachic marriage of non-observant couples; on the one hand when performing a wedding we want it to be real, meaningful, binding. We want the couple to be joined body and soul with the full force that halacha implies. However, there is always the fear of what happens if such a marriage falls apart. As opposed to observant circles where the spouse will never remarry until a get is received, in the non-observant world, there is a different problem. For non-observant couples, we are worried that they may be unaware, forget or ignore the need for a get, and that the woman will remarry without receiving a get. Besides the halachic adultery that such an act means, any children from this second union will become mamzerim.

I think that any responsible Rabbi, realizing the statistics that one out of every two couples he marries will likely divorce, may be acting with negligence by allowing couples to marry without the insurance of a pre-nuptial agreement. He is almost guaranteeing that the couple will risk halachic adultery and mamzerim down the line.

In Uruguay, we are a small, shrinking and self-selecting club. The number of marriages of Jews to non-Jews is significantly greater than that of Jews to Jews. The annual amount of halachic weddings in Uruguay is small compared to the size of the Jewish population. It is by free choice (or family pressure) that anybody in Uruguay today decides to have a halachic wedding. Rabbis are not forcing anyone to conduct a halachic wedding. But if a couple freely decides they want a halachic wedding, I think that it is not only reasonable, but now should be a requirement that the couple obligates itself to conduct a halachic divorce, if God forbid, they divorce civilly.

In terms of the Rabbinate of Israel, we follow their guidelines on all matters of halacha, however, we did not contact them formally regarding this issue. At the most basic level it is really an administrative question. We are not relaxing our standards as to whom or how we conduct marriages or determine Judaism. We have undertaken the process together and with consultation of the recognized agent of the Israeli Rabbinate in matters of divorce, who has been entirely supportive and encouraging of our efforts and is familiar with both the general legal issues and many of the particular cases we are dealing with.

Q: How can this agreement, or the idea that it is based on, help to solve the problem in Israel, where there is no civil marriage? Can it contribute anything?

A: In Israel, there are solutions available that don’t rely on the civil status. They have not been promoted as widely as they might be, in some cases for many of the reasons mentioned above.

Q: I understand that this agreement would not have been possible if not for the awareness of a problem arising from religious constraints. As an Orthodox Rabbi, yet a man of the modern era, do you think there are other challenges to be solved, problems of halacha, like Agunot, which should end? Or must Halacha always be above the rest? Recall that in the case of agunot by the despicable behavior of some men, halacha in practice ignores the misery of the women that these men left.

A: Halacha, our understanding, interpretation and application of it, is what must guide the actions of an observant Jew. We cannot change halacha. However, our understanding of halacha does adapt and evolve, within limitations and constraints, to the developments of society, technology and culture. In the case of the aguna, we are not changing any halacha. We are providing a solution that takes into account the realities of divorce, the power of the secular court to enforce law and agreements, and the binding nature of contracts.

It is true that the abuse of the halachic system can lead to hardship and pain to others. That is true of the abuse of any system. It is ironic that the difficulty in divorcing a woman was initially instituted to protect her. Now it is being used against her. Nonetheless, halacha cannot be changed, and our solution does not change halacha. The form, manner or content of both halachic Jewish weddings and divorces have not changed at all.

One of my favorite examples of the interaction of halacha and modernity is the Tzomet Institute in my hometown of Alon Shvut. Run by engineers (!) they come up with technological, halachic solutions to modern challenges.

Q: What can you tell me about the importance of coordination and consultation within the community? The statement of the Rabbinate highlighted the role of the much appreciated Sara Winkowski. Furthermore, she always symbolized the struggle for the rights of the Jewish woman, inside and not outside of Judaism. To what extent do the rabbis have to listen to those who know the community, but do not necessarily come from a religious perspective?

A: Sara Winkowski is an extraordinary woman. She has single-handedly kept the flame of this struggle alive for more than two decades. She has withstood being unheard, ignored and even ridiculed on this vital subject for so long. But she never gave up. She walked into my office full of determination and passion to solve this issue.

However, I must also thank the Board of Directors of the Kehila and especially the President of the Kehila, Alberto Buszkaniec, for their complete support of this initiative.

One doesn’t have to be religious to have insight into the needs of the community or to care and support the religious and halachic norms of those who do observe halacha. I think the Kehila is an incredible example of this. A large percentage of the Kehila membership and leadership is not observant, however they are fully supportive of religious efforts and activities. They are supportive of the Rabbinate, of the Chevra Kadisha, of Kashrut supervision and certification, of Jewish education and more. I seek council regularly and receive valuable input from non-observant members of the community on religious matters and always walk away with greater insights and perspectives.

Q: And what can you tell me about the problem of agunot in Uruguay?

It is the same as in the rest of the world. It hurts more when it is close to home. It hurts more when it is people you know. It hurts more when the woman is crying in front of you on your desk and you are limited in what you can do. It is infuriating to know that all the pain and heartache might have been avoided by a simple document. If every marriage going forward takes such precautions, in a generation, this issue will be a problem of the past.

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