A Brief Insight into the Lieberman Clause: An Option for Jewish Couples

Technology is continuously evolving, providing new opportunities and solutions to ancient problems. In the past, a solution for agunot was having men who going off to war, provide their wife with a get prior to their departure; the get would also provide them with the ability to remarry upon the soldier’s safe return.[1] Today, Progressive denominations have taken three significant steps to address the gender inequalities present in the divorce process under halacha, which contributes significantly to the modern day agunot crisis.[2] The most relevant to this post being the inclusion of the Lieberman Clause in the ketubah, which has proven to help ensure that a get is granted in a timely manner.[3]

When starting my research, I found myself asking, “What is a “Lieberman Clause?” and “What is the point?” The Lieberman Clause was first introduced to the Beit Din of the Rabbinical Assembly of America in 1954, by Professor Saul Lieberman, of the Jewish Theological Seminary, to “summon either party at the request of the other, in order to enable the party so requesting to live in accordance with the standards of Jewish Law of Marriage throughout his or her lifetime.”[4] The Lieberman Clause indicates agreement of the parties, in the event of a civil divorce, their participation in a get.[5] Alternatively, it may provide as a prenuptial agreement that would annul the marriage, if a get is not given within six months of the civil divorce.[6]

People often think of prenups as tools of manipulation and greed, but that’s not true! A prenup may also protect and secure the rights of the husband and wife, such as guaranteeing the giving and receiving of a get in the case of divorce. The theory behind the Lieberman Clause, despite halachic or constitutional concerns, is that those concerns do not apply where the parties have freely agreed to submit to a rabbinic tribunal of their choosing.[7] If all steps have been properly taken, Progressive denominations seem to accept the inclusion of the Lieberman Clause, despite the issues that accompany it.[8]

Sweet! We have found a solution! Just make sure each married couple includes the Lieberman Clause as part of their wedding ceremony! If only it was that simple. Unfortunately, the inclusion of the Lieberman Clause is not the solution. It is a solution, but there are still flaws with reliance on the Lieberman Clause. First, it is not recognized as a solution to the agunot problem to those who follow traditional readings of get law.[9] Those folks take issue with the penalties contained in the Lieberman Clause.[10] Second, even in a community where the Lieberman Clause is recognized, due to the separation of Church and State, civil courts are unlikely to enforce any agreement if the husband challenges the enforcement.[11]

One case that can give us hope is Avitzur v. Avitzur.[12] There, the court determined that where a case can be decided based solely on the application of neutral principles of contract law, without any reference to religious principle, the court may properly enforce an agreement to the extent it does not contravene law or public policy.[13] This means that the courts may enforce contract agreements between parties, including ketubahs and prenuptial agreements, despite the requirement that Church and State remain separate.[14]

Unfortunately, the decision of Avitzur v. Avitzur only applies to New York courts. Other states have taken steps in light of the Avitzur decision. In Connecticut, the court determined that where a provision of the ketubah would require the courts to choose between competing rabbinical interpretations of Jewish law, the court cannot do so without violating the First Amendment.[15] And in Arizona, despite acknowledging Avitzur, the Arizona court determined it was not within their power to order the husband to grant a get, because courts cannot interfere with exercise of religion.[16] The Arizona court would not address whether and to what extent a court could enforce such a provision in an otherwise valid separation agreement approved by the court as part of its dissolution; nor did it decide whether enforcement by a court would violate the First Amendment.[17]

There is still hope that comes from Avitzur and the Lieberman Clause, despite the constitutional difficulties that courts face. Avitzur gives hope to those living in New York and gives instruction to courts outside of New York jurisdiction on how to approach such a difficult parsing of secular and religious laws. The Lieberman clause also gives us hope, as it is accepted by many Rabbis. While the Lieberman Clause mainly serves those in Progressive denominations, these solutions mentioned here are not the only solutions for getting agunot their freedom.

[1]Irving Breitowitz, Article: The Plight of the Agunah: A study in Halacha, Contract, and the First Amendment, 313, 317 (1992).

[2]Elliot Dorff, Daniel Nevins, and Avram Reisner, Rituals and Documents of Marriage and Divorce for Same-Sex Couples, https://www.rabbinicalassembly.org/sites/default/files/public/halakhah/teshuvot/2011-2020/same-sex-marriage-and-divorce-appendix.pdf.

[3]Id.

[4]Jessica Davidson Miller, The History of the Agunah in America: A Clast of Religious Law and Social Progress, 19 Women’s Rts. L. Rep. 1, 7 (1997).

[5]Id.

[6]Id.

[7]Irving Breitowitz, Article: The Plight of the Agunah: A study in Halacha, Contract, and the First Amendment, 313, 361 (1992).

[8]Jewish Virtual Library, Issues in Jewish Ethics: Agunot — Abandoned Wives, https://www.jewishvirtuallibrary.org/agunot-abandoned-wives (last visited Jan. 23, 2022).

[9] Id.

[10]Irving Breitowitz, Article: The Plight of the Agunah: A study in Halacha, Contract, and the First Amendment, 313, 361 (1992).

[11] Jewish Virtual Library, Issues in Jewish Ethics: Agunot — Abandoned Wives, https://www.jewishvirtuallibrary.org/agunot-abandoned-wives (last visited Jan. 23, 2022).

[12] Avitzur v. Avitzur, 58 N.Y.2d 108 (N.Y. 1983).

[13]Avitzur v. Avitzur, 58 N.Y.2d 108, 115 (N.Y. 1983).

[14] Jessica Davidson Miller, The History of the Agunah in America: A Clast of Religious Law and Social Progress, 19 Women’s Rts. L. Rep. 1, 8 (1997).

[15] Tilsen v. Benson, 2019 Conn. Super. LEXIS 2475, 19 (Conn. Super. Ct.).

[16] Victor v. Victor, 177 Ariz. 231, 234 (Ariz. Ct. App. 1993).

[17] Victor v. Victor, 177 Ariz. 231, 234 (Ariz. Ct. App. 1993).