Recalcitrant Wives: Refusing the Ketubah – part 1, by Caryn Noveck

The Missing Picture

You can tell from my parent’s wedding album that they got married in 1975. Between my grandmothers’ floor-length lace and purple gowns, the plethora of tortoiseshells and my father’s, well, bangs, there’s no room for doubt. I used to enjoy looking through the album as a child, the pictorial narrative of the origins of my family slowly coming together. First, a shot of the invitation, set tables, some bridesmaids getting ready, and my beautiful young mother in her gown. Then some pictures of my father, parents and brother, some of my mother, parents and brother, separate families still. Eventually the group comes together, two families becoming one. Later, more relatives appear, allowing me to play the game of picking out cousins as their shrunken child-sized selves, great-grandmothers I never met, and male relatives I never imagined once had a full head of hair. Finally, somewhere in-between all the family portraits and awkward table shots, the moment that made it all count, my father’s father, my mother’s father, the brothers, uncles and several first and second degree male cousins from both sides, all surrounding my father seated at a table, holding a pen and smiling, signing the Ketubah*, the Jewish marriage contract.

 

And then on the next page, my mother’s mother, my father’s mother, grandmothers, aunts, female relatives from both sides, all surrounding my mother, seated at the table smiling, holding the pen, signing the Ketubah.

***

I’m just kidding. The second picture doesn’t exist. Because of course, as everyone surely knows, at least in 1975, in a Conservative synagogue, a Jewish woman didn’t sign her own marriage contract.

 

Despite my childhood sense of the ominous nature of my mother’s absence from the Ketubah picture, I can’t say I’ve spent a whole lot of time thinking about the feminist implications of the Jewish marriage contract between then and coming to work for CWJ this summer. And in learning about the arcane reasoning of the Rabbinic courts that marrying or divorcing Israeli Jews are subject to, it can be really easy to assign the blame on the lack of separation of Rabbinate and state in Israel. Civil marriage for everyone, we can say, problem solved, people who still want religious sanction for their marriage or divorce can choose to subject themselves to whoever’s antiquated rulings they choose, or not.

***

While I believe it’s essential to provide secular jurisdiction over all aspects of Israeli family law starting yesterday, we can’t pretend that the Israeli Agunah* crisis arose out of a vacuum. We can’t say that it’s all due to a tiny little error of judgement Ben Gurion made 63 years ago, or that the Israeli problem is unrelated or wholly different in nature from the Agunah problem that continues to exist in the free Jewish world outside Israel. Agunot have existed for thousands of years. The problem of the Agunah has been one of the most intractable legal and ethical conundrums in the Jewish community for ages. Temple destroyed?  No worries, we’ll just focus on the book. Can’t sacrifice animals anymore?  We’ll pray instead.  In perpetual exile?  That’s ok, we can always celebrate holidays for two days instead of one.  It says in Deuteronomy that should he find some unseemly thing in her, he writeth her a bill of divorcement…?  Uh oh. And 2000 years later, it seems as if all most of us are doing is still shrugging our shoulders and saying, uh oh.

It turns out my mother’s presence wasn’t the only unnecessary one for the Ketubah signing. “Traditionally” the only signatures required are two male Jewish witnesses, unrelated to the bride and groom. Husband, wife, Rabbi, all completely superfluous. In fact, the Ketubah isn’t even technically a marriage contract, per se, it’s an ancient prenuptual agreement, originally intended to protect the wife in the event of a divorce. In ancient times, a Jewish husband made a payment to his wife or her parents upon engagment/marriage, which served as compensation to her if he should die or decide to divorce her. The Rabbis introduced the Ketubah as a solution both to the problem of young men who could not afford to pay the sum at the time of marriage, thus delaying the payment until the time of actual injury done to the wife, and secondly in order to provide a financial disincentive for men considering divorce. This was of course in a time when women were so inherently dependent on men socially, legally and financially that staying married was seen as being in her interest, at any personal or emotional cost.

Of course today, the Ketubah is the least of the financial disincentives a man faces in granting his wife a divorce. Women, as partners in a marriage, have rights to property and child support that their ancient counterparts couldn’t have dreamed of. Sometimes a man literally feels he can’t afford to let his wife divorce him, and this along with the authority granted him under Jewish/Israeli law, has led to the widespread practice of financially extorting women in exchange for the get*. This is what makes the Tort of Get Refusal* such an effective strategy; winning a substantial reward of financial damages against the husband works to negate the financial incentive he has in withholding the get.

So, sign a halachicly* valid prenuptual agreement, you might say. And this is one of the “solutions” being promoted by many, if not all of the Agunah advocacy organizations out there, including CWJ. If a Jewish couple is going to get married in a Jewish ceremony under the laws of Moses and/or the modern state of Israel, they should absolutely sign a halachic pre-nup, hands down. They work. They are effective at preventing the possibility of get refusal should the marriage indeed end.

I have two problems with calling this a solution. Firstly, the prenup does nothing to protect people who are already married without one. And secondly, I cannot figure out why I should have to sign a prenup to protect me from the results of another prenup, the Ketubah. By “signing” or at least consenting to the Ketubah, would I not be freely submitting myself to a system of authority which does not recognize my equality as a human being? Within Judaism women have the right, authority, agency to consent or refuse marriage. Despite the symbolism of her signature being unnecessary, she does have to verbally consent to the marriage and Ketubah, at least in modern times, for the marriage to be valid. But once she gives that consent, she no longer has any say over her marital status, she has handed that agency over to her husband, under the authority of the Jewish/Israeli religious courts, of her own free will. After that, if things should ever go south in the marriage, she may get lucky in having a mentsch of an ex-husband or she may spend decades in and out of Rabbinical courts pleading for her freedom. The Ketubah is a woman’s last moment of choice, and I wonder why more of us don’t make a different one. After all, how many self-proclaimed Jewish feminists march, donate, and agitate for global women’s rights at every opportunity, while at the same time proudly displaying their Ketubah as a work of art in their home? Is the choice to participate in the system that creates Agunahs really one to be proud of?

Of course it’s simple for me (as a relatively young, single person, who’s never entertained serious proposals of marriage and is not expecting to do so in the near future), to proclaim that knowing what I now know, I wouldn’t touch a Ketubah with a 10-foot pole. These questions are hypothetical for me, I’m only just beginning to ask them, I don’t claim to have the answers.

And that, dear reader, is where you come in:

If marriage is either a looming possibility or your official relationship status,

did/will you have a Jewish wedding? Who signed/will sign the Ketubah? Do you know what it says in your Ketubah? How much did you know about women’s status in the Jewish divorce process before you got married? What, if anything did your Rabbi tell you about the rules of Jewish divorce before you got married? If you had reservations, did you still choose to have a religious marriage anyway? Why, or why not? What made up your mind?

tbc…

*Agunah: woman trapped in a dead marriage according to Jewish religious law, because her husband is either dead, unconscious, insane, missing, hiding or “recalcitrant” i.e. simply refuses to grant her a divorce of his own free will

*Ketubah: Jewish marrige “contract”

*Get: Jewish bill of divorce

*Tort of Get Refusal: the legal strategy pioneered by Center for Women’s Justice, of suing a spouse who refuses to grant a Jewish divorce for financial damages in Israeli civil courts.

*Halacha: Jewish talmudic law, and in Israel, state marriage/divorce law

Caryn Noveck, an undergraduate student at Columbia University during the year, is interning at CWJ for the summer.  She is studying all manner of interesting things, and when she does indeed have an official declared major, promises that the CWJ blog reading audience will be among the very first to hear about it.

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