A landmark ruling by New York State’s highest court last February 15, 1983, providing for the civil court’s enforcement of a couple’s pre-nuptial agreement included in their ketubah (Jewish marriage contract), may help alleviate the plight of individuals seeking to obtain a get (Jewish divorce) from recalcitrant spouses.
Plaintiff Susan Roe Avitzur of Albany sued for breach of the terms of her Conservative ketubah by her civilly divorced husband, Boaz. A pre-nuptial agreement in the couple’s standard Rabbinical Assembly ketubah, in use since 1954, provides for the summoning of husband or wife, at the other spouse’s request, before the Conservative Bet Din (Jewish court) of the RA and the Jewish Theological Seminary of America, as a means of resolving marital disputes, including the granting of a get. This function of the Bet Din is intended to “enable the party so requesting to live in accordance with the standards of the Jewish law of marriage through his or her lifetime,” and the court has the power to require compensation for non-compliance.
Boaz refused to appear before the Bet Din and failed to grant Susan a get. Without the get, Susan, and many other women in similar situations, are known as agunot (anchored women) and are not free to remarry under Jewish law. The children of such remarriages are considered illegitimate. Since, under Jewish law, only a man has the power to grant a divorce, many women are left helpless, subject to financial and/or emotional extortion by their former husbands. (See Bracha Osofsky, “Progress on the Get Problem,” Lilith #10).
The 4-3 decision by the New York State Court of Appeals reversed an Appellate Division ruling which stated that the ketubah, as a religious document, could not be enforced by the civil courts. Yet, Judge Sol Wachtler, in his majority opinion in the Appeals Court case, stated that the decision was based on “neutral principles of contract law, without reference to any religious principle,” and that “we find nothing in law or public policy to prevent judicial recognition and enforcement of the secular terms of such an agreement.” In his dissenting opinion, Judge Hugh Jones wrote that such a step would violate “the constitutional prohibition against entanglement of our secular courts in matters of religious and ecclesiastical content.” (The case was returned to the New York Supreme Court for implementation.) The Appeals Court decision in the Avitzur case, in establishing the principle that a religious document is enforceable as a civil contract, paves the way for civil enforcement of other religious prenuptial or separation agreements.