İn the case of a woman whos husband went missing or is reported dead, the rabbis allow for considerable leniency in the testimony that is accepted to prevent a case where a woman, due to lack of testimony regarding her husband's death, has to remain in a dead marriage, as the Rambam also enumerates:
This is justified by arguing that were it to be proven untrue, the consequences would be quite severe for the woman in question (her children are declared mamzerim and she receives neither the money from her ketubah nor may she keep her own property she brought into the marriage), under the assumption that she is speaking the truth and this eventuality will simply not occur.
R. Daniel Feldman, in his book on ha'aramot, examines first the difficulties in transposing this case to the contemporarily more problematic one of a husband refusing to give a get. As he is evidently still alive, the talmudic leniency of admitting otherwise inadmissible testimony cannot apply. On alternative methods, R. Feldman writes:
One suggestion that has increasingly found significant rabbinic endorsement is the utiluzation of Halakhic prenuptial agreements. While there are, as will be noted, detractors to this as well, the broad support that does exist for these arrangements has provided a foundation for great effectiveness and promise for the future.
One such agreement is associated with the Beth Din of America (BDA) and was drafted in 1992 by R. Zalman Nechemiah Goldberg together with R. Mordechai Willig, and has been endorsed by prominent rabbinic experts such as R. Ovadiah Yosef, R. Chaim Tzimbalist, R. Yitzchok Leibes, R. Herschel Schachter, R. Asher Weiss, and R. Gedalyah Dov Schwartz, and many others.
There are two major components to this prenuptial agreement. The first is essentially uncontroversial: an agreement to arbitrate the terms of the divorce in a predetermined Beit Din. This component in and of itself would go a tremendous distance in eliminating the agunah problem.
This is because, as experience indicates, the vast majority of intractable Jewish divorce situations are, at a basic level, venue disputes. Most recalcitrant spouses are not admitting to a strategy of permanent intransigence. Rather, they are maintaining that the other spouse's preferred authority – be it a specific Beit Din or civil court – is biased against them. Once the case is moved to a "fair" venue, they will promptly cooperate. Accordingly, designating a mutually acceptable venue in advance, through a legally binding agreement, removes what is very often the major obstacle and can in a great many cases lead directly to a speedy resolution.
This first component, the agreement to arbitrate, has been proposed and utilized by many authorities and is an extremely valuable tool in this area. R. Moshe Feinstein, in a brief responsum written in 1979 to R. Yechiel Perr, endorsed the suggestion that a clause be placed into the t'na'im (marriage commitment document). This clause would state that in the event of a separation, the husband agrees to provide a get, and the wife to accept one, when so ordered by an identified beit din.
The second component is monetary in nature, and has been the subject of some debate. The gist of this component is to formally recognize that until the get has been given by the husband and accepted by the wife, the marriage continues to be in effect. As such, the husband continues to be obligated in financial support of his wife.
Of course, given that they are separated, it is no longer true that "two can live as cheaply as one." The agreement establishes a rate of support that is within a realistic range, indexed to fluctuations in the cost of living. Practically speaking, the burden of paying out of pocket for this support of a spouse one no longer wants to live with will generally motivate the husband to end the marriage in short order.
R. Daniel Z. Feldman, Letter and Spirit: Evasion, Avoidance, and Workarounds in the Halakhic System
