The Get Clause in a Prenup - Protection Against Get Refusal and Agunah Status

What Is a Get Clause in a Prenup?

A Get clause is a provision in a prenuptial agreement that establishes a financial penalty against a spouse who refuses to give or accept a Get (a Jewish divorce decree) after the Rabbinical Court has ruled that the marriage should end. The penalty is typically a daily payment - in Israeli practice, the amount ranges between NIS 500 and NIS 800 per day - that accumulates as long as the refusal continues.

The clause is not coercion to issue the Get itself - it is an economic incentive designed to prevent the emotional and financial extortion that characterizes Get refusal cases in Israel.

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The Agunah Problem - Background

In Israel, unlike most Western countries, divorce must be conducted through the Rabbinical Court (for Jewish couples). The Rabbinical Courts Jurisdiction Law (Marriage and Divorce), 1953, stipulates that Jewish divorce is governed by Torah law - and under halakha, the Get must be given of the husband's free will.

The practical consequence: a spouse (typically the husband) can refuse to issue a Get and trap his wife in "agunah" status - married under Jewish law, but unable to remarry, bear children who would not be considered mamzerim (illegitimate), or move on with her life.

The numbers are sobering:

• Hundreds of women in Israel are classified as "mesuravot get" (Get-refused) at any given time
• Get refusal cases last an average of 3-7 years, with extreme cases stretching decades
• The refusal is used as an extortion tool - "I'll give the Get only if you give up the apartment / custody / alimony"

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The RCA Model - Inspiration from the United States

The Rabbinical Council of America (RCA) developed in the 1990s a model "Agreement for Mutual Respect" - a prenuptial agreement that includes a financial obligation in case of Get refusal. This model, developed in consultation with senior halakhic authorities, establishes:

• A daily payment of $150 (approximately NIS 550) to the spouse requesting the Get
• Payment begins from the day the Rabbinical Court determines the marriage is over
• The obligation is financial only - it does not coerce the Get itself
• The mechanism was approved by authorities including Rabbi Zalman Nechemia Goldberg, Rabbi Gedalia Dov Schwartz, and Rabbi Mordechai Willig

The Critical Halakhic Distinction

A Get given under prohibited coercion is a "coerced Get" (get me'useh) - halakhically invalid. But a financial incentive agreed upon in advance, before marriage, is not considered coercion. The halakhic reasoning: the spouse consented freely to this condition when signing the agreement. The sanction does not "force" the Get - it obligates payment for the damage caused by the refusal.

The Yashar Model - The Israeli adaptation of the RCA model, developed to conform to Israeli law. The Yashar organization (an initiative for root reform) has promoted prenuptial agreements in Israel that include a Get clause, in collaboration with rabbis and legal scholars.

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The Mechanism in Practice - How a Get Clause Works

Stage 1: Separation

The couple decides to separate. One (or both) petitions the Rabbinical Court for divorce.

Stage 2: Rabbinical Court Decision

The Rabbinical Court hears the case and determines that the marriage should end. The decision can be:

• Obligation to divorce (chiyuv get) - the court obligates the spouse to give/accept the Get
• Recommendation to divorce (hamlatza le-get) - the court recommends divorce
• Imposed divorce (kfiyat get) - in extreme cases, compelled divorce

Stage 3: Activation of the Clause

If the spouse refuses to comply with the court's decision, the Get clause in the prenup takes effect. From that moment, the refuser owes the daily penalty amount specified in the agreement.

Stage 4: Enforcement

The financial obligation can be enforced through two parallel channels:

• Civil enforcement - Through the Family Court and the Execution Office, like any contractual debt
• Rabbinical enforcement - Rabbinical courts can impose additional sanctions under the Rabbinical Courts Law (Enforcement of Divorce Judgments), 1995: restrictions on passports, driver's licenses, bank accounts, and imprisonment

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The Legal Drafting - What a Get Clause Contains

A Get clause is carefully drafted to satisfy both the halakhic test and the civil legal test. Here are the key components:

1. Triggering event definition - When the clause takes effect (typically: after the Rabbinical Court has determined the marriage should end and the spouse has not complied within 30-90 days).

2. Penalty amount - The daily sum (NIS 500-800/day in Israeli practice). The amount must be reasonable - an excessive penalty could be considered coercion and invalidate the Get.

3. Mutuality - The clause applies to both spouses - to whoever refuses to give the Get and to whoever refuses to accept it.

4. Indexation - The amount is linked to the Consumer Price Index, so it does not erode over time.

5. Halakhic preservation clause - Language clarifying that the sanction is not coercion of the Get itself, but compensation for the damage caused by the refusal.

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How Noberu Includes the Get Clause - Step 5

At Noberu, Step 5 of the questionnaire (special arrangements) includes the option to add a Get clause to the prenup. In this step:

• You choose whether to include a Get clause - we strongly recommend it, but it is the couple's decision
• You define the penalty amount - with recommendations based on current legal practice
• You customize the language - adapted to Israeli law and halakhic requirements
• You add maintenance provisions - that complement the Get clause and provide additional financial protection

The resulting agreement includes language approved by both legal scholars and rabbis - so the clause is valid in both civil court and the Rabbinical Court.

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The Bottom Line

A Get clause is not just another provision in a prenup - it is a safety net against one of the most difficult situations a couple can face. In an ideal world, no one would need it. But in the real world, where a prenup is an expression of trust rather than distrust, a Get clause is the right, responsible, and fair thing to do.

Start the process - a prenup with a Get clause →