


































Final Spring Law Journal Copy


Brandeis University Law Journal Spring 2022, Volume 9, Issue 2

Ensuring the Power of the Beth Din: Creation of the Halakhic
Prenuptial Agreement

Anna Fernands53

One purported solution to the agunah problem is the halakhic prenuptial
agreement. This paper examines the process that created the halakhic
prenup through focusing on the Conservative movement’s adoption of the
Lieberman Clause, the Koeppel v. Koeppel case, and the growing
Orthodox feminist movement. In examining the cultural forces that led to
the creation of the halakhic prenup, it becomes clear that the Orthodox
Rabbinate designed the halakhic prenup to secure the power of the
Orthodox Beth Din. The halakhic prenup was created as a direct result of
increasing numbers of Jewish women turning to secular courts for a
solution to the agunah problem.

Introduction
Since biblical times, Jewish women seeking a divorce have been

plagued by the problem of the agunah: in order for a divorce to be
considered valid within the Jewish community, a man must provide his
wife with a get.54 If the husband is unable or unwilling to do so, and they
separate, his wife becomes an agunah, or “chained woman.” Under
Judaism’s adultery laws, agunot are forbidden to remarry and, if they
have a child with another man, that child is considered illegitimate.55 As
Jewish society has progressed, it has become increasingly clear that
putting women in this abhorrent position is unacceptable. Nevertheless,
Jewish authorities are aware that they cannot disregard halakhic law (i.e.
Jewish law) which initially created the agunah problem. This is of
particular concern for the Orthodox community, as this community
adheres to a stricter interpretation of Jewish law than other Jewish
denominations. Accordingly, the challenge arises of how to solve or

55 This child is known as a mamzer and is subjected to second-class status within
Judaism. For instance, a mamzer, as well as the descendants of mamzerim, are
prohibited from marrying a non-mamzer Jewish spouse. While certain Jewish sects have
discarded this practice, it remains a salient tradition within the Orthodox community.

54 An agunah is a woman who is unable to leave her religious marriage due to being
unable to obtain a get. A get is a document in Jewish religious law, given from husband
to wife, which effectuates a divorce.

53 Brandeis University Undergraduate, Class of 2022.

28



Brandeis University Law Journal Spring 2022, Volume 9, Issue 2

mitigate the problem of the agunah in a way that adheres to halakha.
Various solutions have been proposed within the Orthodox community in
the United States, with the halakhic prenuptial agreement being a
particularly salient one.56

Origins of the Halakhic Prenup
From 1950 to 1980, the Orthodox community in the United States

underwent radical change. Jewish people paid attention to women's
issues, and it was evident that the Orthodox Rabbinate needed to address
the problem of the agunah.57 However, the Rabbinate waited. Indeed, the
Orthodox Rabbinate only created the halakhic prenup in the wake of
innovations in Jewish law, U.S. civil law, and feminist advocacy, which
threatened to undermine the authority of the Orthodox Rabbinate. This
threat manifested in women, feeling neglected in the face of patriarchal
Jewish law, turning to secular civil courts to seek redress in the case of
get refusal. Looking for a way to preserve their power over Jewish law,
the Rabbinate began creating a halakhic prenup that addressed the issue
of the agunah and ensured the continued authority of the Beth Din (i.e.
rabbinical court). These dual ambitions led to the formation of a halakhic
prenup that only partially served women's needs. Significantly, these
prenups did lower the frequency of get refusal. However, this was not its
purpose nor what it aimed to accomplish. In prioritizing the aims of the
Beth Din, the halakhic prenup created by the Orthodox Rabbinate
systematically blocked Jewish women's access to seek redress for get
refusal in civil court.

By the 1950s, the pressure was mounting on American Orthodox
authorities to solve the agunah problem. Part of the pressure stemmed
from the Conservative Jewish community which was already making
headway on this issue. For decades, the Rabbinical Assembly urged the
Conservative movement not to address the agunah problem until the
Orthodox authorities were ready to take joint action. Thus they waited,

57 In referring to the Orthodox Rabbinate, I refer to the body of Orthodox rabbis in the
United States. This is different from the Rabbinical Assembly (an international
organization of Conservative rabbis) and the Rabbinical Council of America (an
organization of Orthodox rabbis located in New York City).

56 A halakhic prenuptial agreement is a Jewish law document that makes provisions for
the case of religious divorce. It is usually used as a tool to prevent or mitigate the effects
of get refusal.

29



Brandeis University Law Journal Spring 2022, Volume 9, Issue 2

refusing to act unilaterally.58 However, after a substantial period of
proposing collaborative solutions—which the Orthodox Rabbinate
rejected—the Conservative movement decided to act alone. Their
proposed “solution” came in 1953 with the Lieberman Clause. This
clause, stipulated in the ketubah (i.e. Jewish marriage contract), stated
that upon civil divorce, both parties must appear before the Beth Din so
that the husband may provide his wife with a get. If either party refuses to
appear before the Beth Din, the spouse may seek redress in civil court.59

Notably, this was the first time American Jewish rabbis employed the
secular state to assist in solving the agunah issue. As the Conservatives
made strides in solving this problem, Orthodox Jews began placing
increased pressure on their authorities to do the same.

The Agunah Problem in Secular Court
Within the Orthodox community, it was feared that secular courts

would undermine the power of the Jewish court. Tensions began to rise
after the introduction of the Lieberman Clause and increased in 1957 with
the Koeppel v. Koeppel case. In this legal dispute, two individuals
—Maureen and William Koeppel— entered a postnuptial agreement
stipulating that both of them would appear before a Beth Din to execute a
get in the case of civil divorce. Upon civil divorce, William failed to
uphold the agreement, and Maureen filed suit in civil court. William’s
defense argued that the civil court could not effectuate a get, or force
William to appear before the Beth Din for the same purpose, because of
the separation of church and state. The court dismissed this argument,
stating that it was constitutional for it to rule on the case because
“[c]omplying with his agreement would not compel the defendant to
practice any religion … Specific performance herein would merely
require the defendant to do what he voluntarily agreed to do.”60 While
Maureen did not ultimately win her case, Koeppel v. Koeppel
demonstrated that, in theory, the secular court could uphold a Jewish
nuptial agreement.61 This decision did not occur in isolation; it was one of

61 The court ultimately ruled against Maureen because she violated the terms of her
postnuptial contract by remarrying.

60 Koeppel v. Koeppel, 138 N.Y.S.2d 366, 373 (Sup. Ct. Queens Co. 1954).
59 Frank, “Dependent on the Gentiles.”

58 Laura R. Frank, “Dependent on the Gentiles: New York State, the Orthodox Rabbinate
and the Agunah Problem 1953–1993,” at: www.academia.edu/4044598/The_Agunah
_and_the_Secular_State (accessed May 11, 2021).

30



Brandeis University Law Journal Spring 2022, Volume 9, Issue 2

the first U.S. court cases to enforce a Jewish nuptial agreement in secular
court, but it was not the last.

Cases such as Waxstein v. Waxstein in 1976, and Avitzur v. Avitzur
in 1982, upheld the decision made in Koeppel v. Koeppel.62 The
combination of the Conservative movement’s adoption of the Lieberman
Clause and the Koeppel v. Koeppel decision showed a new willingness to
address the problem of the agunah in secular courts. Orthodox rabbis
quickly realized that increased reliance on secular courts would disinvest
the Beth Din of its power to decide matters of Jewish divorce along strict
halakhic lines. If secular courts could effectuate a get, more and more
women would turn to the secular courts over Jewish tribunals.

The Rise of Orthodox Feminism
Throughout the early twentieth century, Orthodox authorities

were able to keep the problem of the agunah on the backburner. While
pressure to address the agunah problem driven by the Lieberman Clause
and the Koeppel v. Koeppel certainly alarmed them, divorce rates were
still relatively low in the Orthodox community.63 Similarly, those who
most vehemently advocated for equal rights within Jewish law were often
within the Reform or Conservative sects of Judaism, but in the 1970s,
this all began to change. Orthodox women began noticing and resenting
how different their lives and marriages were under American law versus
Jewish law and subsequently, Orthodox feminism was born. Women
began organizing, spreading information, and drawing attention to the
ways that women were being mistreated within the Orthodox community.
This led to the foundation of various groups whose purposes were to
serve and advocate for the rights of agunot. These organizations also
publicized the issue of the agunah in ways that the Orthodox authorities
could not ignore.

One of the most influential organizations created by Orthodox
feminism was Getting Equitable Treatment (GET), founded in 1979,
which helped women throughout the process of receiving a get. Notably,
GET also advocated for the public and religious shunning of husbands

63 Waxstein v. Waxstein affirmed that Jewish prenuptial agreements are to be treated as
contracts. Like all other contracts, the provisions of a Jewish prenuptial agreement may
be enforced in secular court. Avitzur v. Avitzur dismissed the claim that enforcement of a
Jewish prenuptial agreement would require an unconstitutional entanglement between
Church and State.

62 Frank, “Dependent on the Gentiles.”

31



Brandeis University Law Journal Spring 2022, Volume 9, Issue 2

who refused to award their wives a get. GET became widely known
within Orthodox circles, gaining 400 members by 1984. Gloria
Greenman, the founder of GET, noted that as her organization gained
notoriety, “...the rabbis have felt the need more than ever to do
something.”64 The founding of GET was quickly followed by the
formation of similar organizations, all working to pressure the Orthodox
authorities into finding a solution to the agunah crisis.

As momentum grew, Orthodox authorities could no longer ignore
the call for change. They realized that if this problem was not addressed,
the faith and commitment of Orthodox women would be challenged. It
also became apparent that if they did not address the concerns of
Orthodox feminism now, feminists might begin pushing for more radical
changes. This frightened the authorities, who often viewed feminist
advocacy as a threat to Jewish Orthodoxy. Thus, addressing the problem
of the agunah began to be seen as a way not only to maintain the Beth
Din’s authority over secular courts, but also as a way to satisfy Orthodox
feminists just enough to quell their advocacy for more radical change.

The First Halakhic Prenups
In the wake of innovations in religious and secular law, and the

ever-mounting pressure placed on the Orthodox authorities by Orthodox
feminists in the 1970s, centrist Orthodox authorities began addressing the
agunah problem. One of the tools they used was the halakhic prenup,
which had proved effective in obtaining women a get in Conservative and
Reform circles. The first noteworthy prenup introduced by Orthodox
authorities in the United States was the Bleich Prenup in 1981. Rabbi J.
David Bleich, inspired by Israeli rabbinical courts, created a prenup
which stipulated that, in the case of civil divorce, the husband must
financially support his wife until he provided her with a get. This was a
stark change from the past, as halakha usually granted that if a wife had
left the home or had a separate source of income, the husband was
absolved of a responsibility to financially support her. Now, if a couple
signed the Bleich prenup, the husband could only be relieved of his
financial duties to his wife after he provided a get.

64 Steven Feldman, “Grappling with Divorce and Jewish Law,” in Women in Chains: A
Sourcebook on the Agunah, ed. Jack Nusan Porter (New Jersey: Jason Aronson, Inc.,
1995), 217.

32



Brandeis University Law Journal Spring 2022, Volume 9, Issue 2

As expected, the Bleich prenup received intense backlash from
right-leaning Orthodox authorities, who claimed that this prenup used
coercive elements in making the man provide a get. If this were true, the
get received from the Bleich prenup would be considered get me’useh
(i.e. a forced get) and thus deemed void. However, Bleich countered
these charges, stating that “...the presence of an obligation for support
and maintenance which can be terminated only by issuance of a get is, of
course, not viewed as a coercive element compelling a get. Were Jewish
law to take a different view of the matter, no divorce would be valid.”65

This view is backed by scholars who refer to a stipulation in the ketubah
which verifies that the husband will provide for his wife throughout their
marriage. If a husband does not issue his wife a get, and thus is still
considered married, it is logical that he would be expected to continue
material support for her. Certain members of the Orthodox community
resisted this logic, asserting that the direct connection between financial
penalties and get refusal, as stipulated in the Bleich prenup, marked a
substantial deviation from the traditional material support provided for by
the ketubah. The Orthodox Rabbinate claimed that it was due to this
substantial difference that gets resulting from the Bleich prenup were
me’useh and thus illegitimate.

In the face of opposition, Bleich modified his prenup in 1984.
This adjustment, issued in Bleich’s paper, A Proposal In Wake of Avitzur,
recommended that a couple sign a prenuptial agreement which stipulated
that all divorce proceedings would be submitted to private rabbinical
court arbitration. At this arbitration, it was assumed that rabbinical courts
would not have to rely solely on the financial support mechanism
suggested by the initial Bleich prenup, but would instead use their broad
powers to negotiate a fair divorce settlement. The idea was that the
rabbinical courts would be able to use “moral suasion” to convince the
husband to provide his wife a get upon civil divorce.66 While this prenup
was broadly unpopular, the Bleich prenup provided Orthodox authorities
with a starting point from which they developed their own agreements.

Taking inspiration from Bleich, the Rabbinical Council of
America (RCA) began endorsing its own prenups. In total, the RCA
endorsed two different agreements: the Berman-Weiss Prenup of 1984

66 David Bleich, “A Suggested Antenuptial Agreement: A Proposal in the Wake of
Avitzur,” Journal of Halacha and Contemporary Society, no. 7 (1984), 25-36.

65 David Bleich, “Modern Day Agunot: A Proposed Remedy,” Jewish Law Annual, 4
(1981), 167-178.

33



Brandeis University Law Journal Spring 2022, Volume 9, Issue 2

and the Willig Prenup of 1996. The Berman-Weiss prenup, drafted by
Rabbis Saul Berman and Abner Weiss, stipulated that a husband give his
wife a get in the case of civil divorce. If the husband refused his wife a
get, thereby breaching the contract, he would be required to give his wife
fixed liquidated damages. These liquidated damages were to be specified
within the prenup, and the Rabbinic Arbitration Panel could not later
change them. This limited the Rabbinic Arbitration Panel’s authority, as it
could award and enforce the deliverance of these predetermined damages
but not modify them. Like both Bleich prenups, the Berman-Weiss
prenup did not gain significant popularity. Soon after its proposal, the
RCA rescinded its support for the Berman-Weiss Prenup due to halakhic
objections.67

The second prenup endorsed by the RCA—the Willig
prenup—was markedly more successful. Drafted by Rabbi Mordechai
Willig in 1996, it consisted of two parts. The first part, known as the
Support Obligation Agreement, stated that in the case that either spouse
demanded it, both the wife and husband agreed to appear before the Beth
Din. Furthermore, both spouses agreed to abide by the decision of the
Beth Din concerning the get.68 If the husband refused to appear before the
Beth Din and issue a get, the Willig prenup required the husband to pay
his wife increased spousal support, starting at 150 dollars per day, until
he issued the get. Notably, the initial Bleich prenup inspired this facet of
the Willig prenup. Unlike the Bleich prenup, however, the amount owed
to the wife in the case of a get refusal was not fixed. Once the parties
appeared before the Beth Din, the support payments owed to the wife
could be modified or, in some cases, dismissed entirely. Furthermore, if
the wife failed to appear before the Beth Din, she forfeited her right to
these support payments. In the second part of the Willig prenup, the
Arbitration Agreement, the couple chose in advance how much authority
would be given to religious courts versus secular courts in the case of
divorce. The Willig prenup soon gained widespread popularity, with one

68 The Beth Din of America, “What Does the Prenup Say”
https://theprenup.org/explaining-the-prenup/what-does-the-prenup-say/

67 Susan Weiss, "Prenups Meant to Solve the Problem of the Agunah: Toward
Compensation, Not ‘Mediation.’” Nashim: A Journal of Jewish Women's Studies &
Gender Issues, no. 31 (2017), 61-90.

34



Brandeis University Law Journal Spring 2022, Volume 9, Issue 2

rabbinic leader going so far as to call it “...a light at the end of the
tunnel.”69

The Revised RCA Prenup
However, the RCA was not content with the final version of the

Willig prenup. This stemmed from the fact that the two-part structure of
the Willig prenup allowed people to sign only the Support Obligation
Agreement and not the Arbitration Agreement . If a couple were to do so,
the rabbinical courts would lose their authority to implement the Willig
prenup in the way they saw fit. As a result, there was a fear that
rabbinical courts would continue to lose power to secular courts. This led
to the introduction of the Revised RCA Prenup in 2013, a modification of
the previous Willig prenup. This version combined the two parts of the
initial Willig prenup—the Support Obligation Agreement and the
Arbitration Agreement—into one. Furthermore, the Revised RCA Prenup
specified that rabbinical tribunals had “...exclusive jurisdiction to decide
… any disputes relating to the enforceability, formation, conscionability,
and validity of this Agreement (including any claims that all or any part
of this Agreement is void or voidable) and the arbitrability [sic] of any
disputes arising hereunder.”70

The Revised RCA Prenup is now the dominant prenup advocated
for by Orthodox authorities because it meets two needs: the need to
appear to be addressing the agunah problem and the need to maintain the
power of the Orthodox Beth Din. In signing the Revised RCA Prenup,
women were ostensibly limiting themselves to solely seeking recourse
for get refusal in religious court. There were even threats that if a woman
sought redress in civil court, the Beth Din would not enforce for support
obligations stipulated in the Revised RCA Prenup. As Willig put it, “...if
she [the agunah] pursues support in secular court, she may forfeit her
right to pursue the support clause of the prenuptial agreement in Beit
Din.”71 By limiting the power of women to obtain legal recourse in civil
court, the Orthodox Rabbinate was able to maintain its jurisdiction over

71 Mordechai Willig, “The Prenuptial Agreement: Recent Developments,” Journal of the
Beth Din of America (2012), 12.

70 Susan Aranoff and Rivka Haut, “Prenuptial Agreements,” in The Wed-Locked Agunot:
Orthodox Jewish Women Chained to Dead Marriages (Jefferson, NC: McFarland,
2015), 172-195.

69 Basil Herring and Kenneth Auman, The Prenuptial Agreement: Halakhic and
Pastoral Considerations (Jason Arronson, Inc, 1996).

35



Brandeis University Law Journal Spring 2022, Volume 9, Issue 2

marriage and divorce law. Moreover, the increased authority of the Beth
Din often comes at the expense of women, as rabbinic courts more often
encourage women to barter away privileges in exchange for receiving a
get than do secular courts.72

This reality places Orthodox women in an untenable paradox. If a
woman wants to avoid the threat of becoming an agunah, she is told to
sign the Revised RCA prenup. If she signs the Revised RCA prenup,
however, she is bound to seek assistance solely from religious courts.
These religious courts tend to have a greater patriarchal bent than secular
courts, and accordingly favor the husband throughout divorce
proceedings. In proposing the Revised RCA prenup as a solution to the
agunah crisis, the Othodox Rabbinate tells women they must choose
between taking on the risk of becoming an agunah or signing over their
rights to seek redress in secular court. Either way, women leave this
arrangement having lost something. In trying to create a halakhic prenup
that upholds the power of the Beth Din, the Rabbinate has sidelined the
goals of women seeking to avoid the agunah problem. The Othodox
halakhic prenup, as it is written now, does not meaningfully address the
concerns of disadvantaged women in Jewish divorce proceedings.

Conclusion
The Jewish prenup was proposed as a solution to the agunah

problem in the wake of growing fears that the rabbinical courts were
losing their power to secular courts. Conservative authorities created the
Lieberman clause in 1953, which allowed women to go to secular courts
if their husbands chose not to appear before the Beth Din. The Koeppel v.
Koeppel case in 1957 created the precedent that secular courts would, in
theory, uphold a religious contract in court. And finally, the rise of
Orthodox feminism in the 1970s created an environment in which women
realized the untenability of their position within Jewish law, and thus
looked elsewhere for legal help. This culminated in the Orthodox
Rabbinate slowly losing its jurisdiction over marital law to secular
authorities, a worrying reality that they tried to remedy through the
creation of a halakhic prenup which cemented the authority of the Beth
Din in matters of Jewish law. Unfortunately, this expansion of authority
often comes at the expense of women. The halakhic prenup is not entirely
ineffective—it has contributed significantly to reducing get refusals. Yet

72 Weis, “Prenups Meant to Solve the Problem of the Agunah.”

36



Brandeis University Law Journal Spring 2022, Volume 9, Issue 2

it is also true that the halakhic prenup is not the solution to the agunah
problem that so many dreamed it would be.

37



Brandeis University Law Journal Spring 2022, Volume 9, Issue 2

Works Cited
Aranoff, Susan and Haut, Rivka. “Prenuptial Agreements,” in The

Wed-Locked Agunot: Orthodox Jewish Women Chained to Dead
Marriages (Jefferson, NC: McFarland, 2015), 172-195.

Bleich. David. “A Suggested Antenuptial Agreement: A Proposal in
Wake of Avitzur,” Journal of Halacha and Contemporary Society,
no. 7 (1984), 25-36.

Bleich, David. “Modern Day Agunot: A Proposed Remedy,” Jewish Law
Annual, no. 4 (1981), 167-178.

Feldman, Steven. “Grappling with Divorce and Jewish Law,” in Women
in Chains: A Sourcebook on the Agunah, ed. Jack Nusan Porter
(New Jersey: Jason Aronson, Inc., 1995), 217.

Frank, Laura R. “Dependent on the Gentiles: New York State, the
Orthodox Rabbinate and the Agunah Problem 1953–1993,” at:
www.academia.edu/4044598/The_Agunah
_and_the_Secular_State. (accessed May 11, 2021).

Herring, Basil and Auman, Kenneth. The Prenuptial Agreement:
Halakhic and Pastoral Considerations (Jason Arronson, Inc,
1996).

Koeppel v. Koeppel, 138 N.Y.S.2d 366, 373 (Sup. Ct. Queens Co. 1954).
Mordechai Willig. “The Prenuptial Agreement: Recent
Developments,” Journal of the Beth Din of America (2012), 12.

The Beth Din of America. “What Does the Prenup Say”
https://theprenup.org/explaining-the-prenup/what-does-the-prenup
-say/

Weiss, Susan. "Prenups Meant to Solve the Problem of the Agunah:
Toward Compensation, Not “Mediation.” Nashim: A Journal of
Jewish Women's Studies & Gender Issues, no. 31 (2017), 61-90.

38




