The Get Clause

The Agunah Problem

In Jewish law (halakha), divorce is effected by giving a "get" - a divorce document that the husband gives to the wife. The problem: if the husband refuses to give a get, the wife becomes an "agunah" - chained to the marriage without the ability to divorce, remarry, or move on with her life.

In Israel, where marriage and divorce of Jews are conducted according to halakha, the agunah problem is a real and ongoing issue. Every year, hundreds of women are classified as "get-refusees" - their husbands refuse to give them a get, sometimes as leverage in negotiations over property, custody, or alimony.

What is a Get Clause?

A get clause is a mechanism included in the prenup designed to prevent get refusal. The idea: creating a financial incentive that encourages both parties to cooperate in divorce proceedings and not delay the giving of the get.

The RCA Model and Yashar Coalition

The most common model was developed by the RCA (Rabbinical Council of America) and adopted by the Yashar Coalition in Israel. The mechanism works as follows:

1. Maintenance obligation - the agreement establishes that if the spouses are living separately and a get has not been given, the refusing party will pay monthly maintenance to the other party
2. The amount - typically a significant sum (e.g., 1,500-3,000 NIS per day) designed to create an incentive for cooperation
3. Cessation of obligation - the obligation ends when the get is given

A Support Mechanism - Not a Penalty

A critical point: the get clause is drafted as a maintenance obligation, not a penalty. The distinction is important from a halakhic perspective - a "get me'useh" (a get given under coercion) is not valid in halakha. Therefore, the mechanism does not force the husband to give a get, but rather creates a maintenance obligation that ceases when a get is given. The husband "chooses" to give the get to stop the maintenance obligation - he is not forced.

Halakhic Validity

Many qualified rabbis recognize the halakhic validity of the get clause, provided it is properly drafted:

• The mechanism is maintenance, not a penalty
• The obligation is mutual (applies to both parties)
• The agreement is signed voluntarily before the marriage
• The clause does not directly condition the giving of the get

There are poskim (halakhic authorities) who dispute the halakhic validity of the get clause. It is recommended to consult a qualified rabbi familiar with the subject.

Enforcement in Rabbinical Courts

Rabbinical courts in Israel are divided in their approach to the get clause. Some dayanim (rabbinical judges) recognize the clause's validity and enforce the maintenance obligation, while others question its halakhic validity.

In Family Courts, the get clause is enforced like any other clause in an approved prenup. The court can order payment of the maintenance stipulated in the clause.

Who is the Get Clause Suitable For?

A get clause is recommended for every Jewish couple marrying according to Jewish law. It is especially relevant for:

• Women who want protection against get refusal
• Men who want to demonstrate good faith and commitment to equality
• Couples who want to prevent the get from being used as a pressure tool

A Word About the Male Perspective

It is important to note: men can also be harmed by get refusal. While the problem is more severe from a halakhic perspective for women (who become "agunot"), men who want to divorce and encounter their wife's refusal also suffer. A mutual get clause protects both parties.