What pained me, however, was the fact that Rabbi [Yehiel Yaakov] Weinberg was very much in favor of relief for agunot by annulment, and for those about to marry, by the use of contracts for conditional marriages, which was the proposal of one of his disciples – if not his most famous one – the late Rabbi Eliezer Berkowitz [sic - should be vitz]. Rabbi Weinberg hoped other well-known scholars would agree with him; his modesty prevented him from going it alone.
His view would not only have solved the problems of these women whose husbands refuse them a religious divorce, but with Rabbi Berkowitz's proposals would have terminated altogether the incidence of the problem all over the world.
What a tragedy this is. Yet happily I learned that what he approved was followed in practice by many rabbis all over the world, and especially Sephardi rabbis, whose rabbinate was always more liberal in this area than Ashkenazi ones.
Yet why cannot modern agunot claim to be accorded Sephardi liberalism? Does the Torah or their ketubot bind them to the stringency of Ashkenazim? The stringency of most Orthodox rabbis is only alienating Jews and giving the Torah tradition a bad image. It is also decisive [sic?: divisive?].
May the memory of Rabbi Weinberg in the Yeshiva world he loved inspire penitence and induce much change of heart there.
But who were these Sephardim? I quote Rabbi Dr. Marc D. Angel, Voices in Exile: A Study in Sephardic Intellectual History:
I've also seen that Rabbi Dr. Michael J. Broyde, a student of Rabbi Rackman's (see On the Death of a Giant, obituary of Rabbi Rackman by Rabbi Broyde), also supports Rabbi Berkovits's proposal, citing in the name of Rabbi Weinberg. See "An Unsuccessful Defense of the Beit Din of Rabbi Emanuel Rackman: The Tears of The Oppressed by Aviad Hacohen" (review essay by Rabbi Broyde of Aviad Hacohen's The Tears of the Opressed). This essay is Rabbi Broyde's refuting a different (more controversial and ambitious) proposal of Rabbi Rackman's, before Rabbi Broyde offers his own proposal, namely the same Rabbi Weinberg-Berkovits proposal put forth above by Rabbi Rackman. (See also the follow-up response, with replies from the author of The Tears of the Oppressed, at http://www.edah.org/backend/JournalArticle/5_1_Continued.pdf)
To quote Rabbi Broyde:
There are many valid reasons why such a proposal has never been forthcoming and endorsed by significant segments of the rabbinic community, and I have elsewhere explained them. Were such a proposal to be crafted and accepted by mainstream halakhic authorities, it would likely be formulated, I think, to combine three different mechanisms into a single document, and in a way that if any of them were halakhically valid, then the resulting get would be valid. The three elements would be conditions applied to the marriage (tenai be-kiddushin), authorization (harsha’ah) to give a get, and broad communal ordinance to void a marriage (taqqanat haqahal). Each of these avenues has significant halakhic support of both classical and modern posqim; consequently, a real case could be made that a single document that successfully incorporates all three elements would survive any be-di-`avad halakhic criticism, and the get issued as a result of such a document would be valid according to most authorities. Indeed, in the twentieth century alone, one can cite a list of luminary rabbinic authorities who have validated such agreements in one form or another, including Rabbi Yosef Eliyahu Henkin, Rabbi Isaac Herzog, Rabbi Jechiel Jacob Weinberg, and Rabbi Ovadia Yosef, as well as many others. And no less an authority than Rama approved of conditional marriages (although maybe only in yibbum situations).
 50See Michael Broyde, Marriage, Divorce and the Abandoned Wife in Jewish Law: A Conceptual Approach to the Agunah Problems in America (Ktav, 2001).
 A suggested text for a document along these lines (shelo le-halakhah) can be found in Appendix A.
 See Rama, Even ha-Ezer 157:3; Terumat Ha-Deshen 223 and Bach, Even ha-Ezer 157. See also Teshuvot Rabbi Akiva Eiger 93; Chatam Sofer, Even ha-Ezer 111; Noda Be-Yehudah, = Even ha-Ezer 1:56 and Arukh ha-Shulchan, Even ha-Ezer 157:15, all of whom agree with Rama.
 Rabbi Yosef Eliyahu Henkin, Perushai Ibra 110-117. The section on sexuality prior to divorce not voiding the authorization can be found in Rabbi Yitzchak Isaac Herzog, Hechal Yitzchak, 2:41.
 Teshuvot Rashba 185, 1163. See Maharam Alshaker 48 who explicitly adopts this view. See also, Rabbi Ovadia Yosef, “Kol ha-Meqaddesh Ada`ata de-Rabbanan Meqaddesh,” Sinai 48 (1961), 186-193. See also Rabbi Jechiel Jacob Weinberg in Seridei Aish 1:90, 1:168 and Rabbi Weinberg’s introduction to Eliezer Berkowitz, Tenai be-Nisuin ve-Get.
 See above, notes 53 and 54.
 See Breitowitz, above note 49, at 59. [ = For an excellent survey, see Irving Breitowitz, Between Civil and Religious Law: The Plight of the Agunah in American Society (Greenwood Press, 1993).]
Appendix: Suggested Tripartite Document (Shelo le-Halakhah)
This document is to certify that on the [ordinal number] day of the month of [name of month], in the year [calendar year], in [location], [name of groom], the groom, and [name of bride], the bride, of their own free will and accord entered into the following agreement with respect to their intended marriage.
The groom made the following declaration to the bride under the huppah (wedding canopy):
“I will betroth and marry you according to the laws of Moses and the people of Israel, subject to the following conditions:
“If I return to live in our marital home with you present at least once every fifteen months until either you or I die, then our betrothal (kiddushin) and our marriage (nisu'in) shall remain valid and binding;
“But if I am absent from our joint marital home for fifteen months continuously for whatever reason, even by duress, then our betrothal (kiddushin) and our marriage (nisu'in) will have been null and void. Our conduct should be like unmarried people sharing a residence, and the blessings recited a nullity.
“I acknowledge that I have effected the above obligation by means of a qinyan (formal Jewish transaction) before a beit din hashuv (esteemed rabbinical court) as mandated by Jewish law. The above condition is made in accordance with the laws of the Torah, as derived from Numbers Chapter 32. Even a sexual relationship between us shall not void this condition. My wife shall be believed like one hundred witnesses to testify that I have never voided this condition.
“Should a Jewish divorce be required of me for whatever reason, I also appoint anyone who will see my signature on this form to act as scribe (sofer) to acquire pen, ink and feather for me and write a Get (a Jewish Document of Divorce), one or more, to divorce with it my wife, and he should write the Get lishmi, especially for me, ve-lishmah, especially for her, u'lesheim gerushin, and for the purpose of divorce. I herewith command any two witnesses who see my signature on this form to act as witnesses to the bill of divorce (Get) to sign as witnesses on the Get that the above-mentioned scribe will write. They should sign lishmi, especially for me, ve-lishmah, and especially for her, u'leshem gerushin, and for the purpose of divorce, to divorce with it my above mentioned wife. I herewith command anyone who sees my signature on this form to act as my agent to take the Get, after it is written and signed, and be my messenger to give it into the hands of my wife whenever he so wishes. His hand should be like my hand, his giving like my giving, his mouth like my mouth, and I give him authority to appoint another messenger in his place, and that messenger another messenger, one messenger after another, even to one hundred messengers, of his own free will, even to appoint someone not is his presence, until the Get, the document of divorce, reaches her hands, and as soon as the Get reaches her hands from his hands or from his messenger's hands, or from his messenger's messenger's hands, even to one hundred messengers, she shall be divorced by it from me and be allowed to any man. My permission is given to the rabbi in charge to make such changes in the writings of the names as he sees fit. I undertake with all seriousness, even with an oath of the Torah, that I will not nullify the effectiveness of the Get, the Jewish Document of Divorce, to divorce my wife or the power of the above-mentioned messenger to deliver it to my wife. And I nullify any kind of a statement that I may have made which could hurt the effectiveness of the Get to divorce my wife or the effectiveness of the above-mentioned messenger to deliver it to my wife. Even if my wife and I should continue to reside together after the providing of this authorization to divorce her, and even if we have a sexual relationship after this authorization to write, sign and deliver a Get, such a sexual relationship should not be construed as implicitly or explicitly nullifying this authorization to write, sign and deliver a Get. My wife shall be believed like one hundred witnesses to testify that I have not nullified my authorization to appoint the scribe to write the Get on my behalf, or the witnesses to sign the Get on my behalf or any messenger to deliver it to the hand of my wife.
“Furthermore I recognize that my wife has agreed to marry me only with the understanding that should she wish to be divorced that I would give a Get within fifteen months of her requesting such a bill of divorce. I recognize that should I decline to give such a Get for whatever reason (even a reason based on my duress), I have violated the agreement that is the predicate for our marriage, and I consent for our marriage to be labeled a nullity based on the decree of our community that all marriages ought to end with a Get given within fifteen months. We both belong to a community where the majority of the great rabbis and the batei din of that community have authorized the use of annulment in cases like this, and I accept the communal decree on this matter as binding upon me.
“Furthermore, should this agreement be deemed ineffective as a matter of halakhah (Jewish law) at any time, we would not have married at all.
“I announce now that no witness, including any future testimony I might provide, shall be believed to nullify this document or any provision herein.”
Signature of Groom _________________________
The bride replied to the groom:
“I consent to the conditions you have made and I accept the qinyan (formal Jewish transaction) in front of the beit din hashuv (esteemed rabbinical court).”
Signature of Bride _________________________
We the undersigned duly constituted beit din witnessed the oral statements and signatures of the groom and bride.
Witness 1 ________________________
Witness 2 ________________________
Notice a few things about that prenuptial:
- It says,
We both belong to a community where the majority of the great rabbis and the batei din of that community have authorized the use of annulment in cases like this, and I accept the communal decree on this matter as binding upon me.That's the problem with the prenuptial: no matter how kosher your divorce is, if the community rejects it...sigh...
- The conditions all result in the annulment of the Jewish divorce and delivery of the get, but say nothing about apportionment of property, or the like. Apparently, this prenuptial would allow you both to remarry while still allowing you to continue negotiating financial aspects of the divorce even after you have both begun living with other marital partners.
- It says,
Furthermore I recognize that my wife has agreed to marry me only with the understanding that should she wish to be divorced that I would give a Get within fifteen months of her requesting such a bill of divorce. I recognize that should I decline to give such a Get for whatever reason...The problem is that it says nothing about the wife being obligated to accept the get if the man wants the divorce. According to the taqana of Rabbenu Gershom, the woman must accept the get for the get to work, and therefore, a recalcitrant wife could chain her husband and make him an agun if she refused to receive the get. Hopefully, the condition about the marriage being void after fifteen months of non-cohabitation will suffice to protect men from recalcitrant wives, but still, I'd like to see a condition like,
Furthermore my wife recognizes that she has agreed to marry me only with the understanding that should I wish to be divorced that she would accept a Get within fifteen months of my delivering such a bill of divorce. She recognizes that should she decline to receive such a Get for whatever reason...