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Issue of enforceability puts halachic prenup on hold




“There’s no point in having it if it can’t be enforced,” says Dayan Dovid Baddiel of the Johannesburg Beth Din, who has been driving the process together with Rosh Beth Din Rabbi Moshe Kurtstag and Dayan Shlomo Gliksberg.

The gett is a divorce document in Jewish law, without which individuals cannot remarry according to Jewish law. An agunah is a woman whose husband refuses her a gett, resulting in her being “chained” to him and living in limbo.

Women are not the only victims of the scourge, the rabbi points out. They may refuse to accept a gett, which would likewise prevent an estranged husband from remarrying according to Jewish law.

Michelle Blumenau, the co-founder of Go Getters, the South African gett network which was set up to guard against gett abuse, says, “There was some debate amongst the legal fraternity about the viability of a halachic prenup in South Africa when we looked into it this year.

“Our Beth Din is not opposed to it, but the legal advice was that it was going to be difficult to enforce. In South Africa, currently the primary protection is section 5A of the Divorce Act. If one or both of the spouses will not be free to marry post-divorce, the court may refuse to grant the order of divorce.

“It is essential to remind your lawyer and the judge of this,” she stresses. “We believe that ideally, the gett should be finalised prior to the civil divorce. If not, there should be a clause in the civil divorce agreement that both parties agree to be reasonable and if necessary to give or accept the gett within 30 days.

“If this is not done, and a party is found to be in contempt of court, they are to go to prison for a period not exceeding 90 days, suspended for a period of 30 days, to allow the defaulting party to comply with the court order.”

The idea of the prenuptial contract was that the husband would pay a certain agreed amount in maintenance to his wife after their separation if he refused to appear before the Beth Din. The maintenance obligation would stand for as long as he did not appear before the Jewish Ecclesiastical Court.

The purpose was to motivate him to appear before the court to avoid running into “deep debt”, Baddiel says.

But, he hastens to add, “We don’t want to just rush into a gett. The Beth Din explores all avenues, for instance, sending the couple to appropriate counselling.

“At the same time, once it’s clear that the husband or the wife wants to get divorced, we’ll pursue it to the very end, making sure that they’ll be divorced – and we’ll try all means possible.”

It was envisaged that the prenuptial contract would be incorporated into the regular antenuptial contract, be made an order of court, and enforcement would take place through attachment of the defaulter’s assets. “But a senior attorney’s view was that it would not be enforceable,” says Baddiel.

“Going through all this, amending everything, and requiring every couple to do it when we’re not even sure it’s going to gain anything, is not worth the effort.

“Coupled with the fact that in Israel there was a minority of one or two dayanim in whose opinion the gett would be a coerced one, and they wouldn’t recognise it. That is definitely not our opinion, however we wish all our gittin to be recognised internationally by all the Batei Din.”

Baddiel says there are not “that many” recalcitrant husbands. The Beth Din is nevertheless determined to see that justice is done, earlier this year pursuing a gett refuser who had relocated to the United Kingdom.

“We took the matter up with the London Beth Din, and we were eventually able to get the husband to give a gett,” he says. In another dramatic case, Kurtstag, through the Israeli Beth Din, managed to stop a non-compliant husband from leaving Israel until he had granted his wife a gett.

In Israel, the problem doesn’t really arise because gett refusers can be imprisoned by the rabbinical courts. Even so, there is a case of an individual who has been in jail for close to two decades for refusing to grant his wife a gett.

Baddiel says that the fact that there is one Beth Din in South Africa is a distinct advantage in this regard, and gives it leverage. “If, for example, a person wants to go and live in Israel, he needs a certificate of Jewishness from the Beth Din, and we wouldn’t give him any certificate until he complied.”

In other countries where there are several Batei Din, if one refuses their services, the individual can go to others in the hope of obtaining what he needs.

While the Beth Din is not pursuing the prenup issue at the moment, Baddiel says it tries to do what it can, and is committed to seeing things through “to the fullest extent”.

For the time being, he believes that the Jewish Ecclesiastical Court has sufficient leverage to ensure that justice is done to both men and women who find themselves in the dead-end situation of being at the mercy of their estranged spouses. “We’ve found Go Getters to be helpful as well,” he says.

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