In this post, instead of beginning with a long-winded introduction, I'll start out right away with summaries of a few cases - cases that, at least to me, have rather perverse implications. (Other opinions? You can write comments.) I'll save the long-winded stuff for the end.
In all of these cases, the man sues for divorce, but the woman refuses, and claims that she wants to reconcile. Unfortunately, as I mentioned in my previous post, the best example that I saw of this in the last few months was in a file that mysteriously disappeared from my computer. I'll summarize it from memory.
The husband sued for divorce, several years ago. The wife did not want to accept, but asked for shalom bayit (reconciliation). The beit din did not agree that the husband's claims against his wife were sufficient to order her to accept the divorce. But the husband now lives overseas with a woman, and, based on the fact that they have been separated for quite a while (sometimes considered a reason to order acceptance or granting of a divorce), he renewed his suit for a divorce. The woman still refuses and claims she wants him back. The beit din has compassion for this woman, abandoned by her husband, who is now living with another woman. The wife, as it turns out, is ill, and depends upon the mezonot that the husband is obligated to pay to support his wife - after all, so long as she is his wife, he is obligated to pay for her support (her earnings would reduce the sum he must pay, but this woman, it appears, was not employed). It was not clear in the case whether this woman became sick after the husband left her, before, or whether she had this illness even before they were married. No matter - the beit din will not force the woman to accept a divorce (by using sanctions against her), and they insist that the husband is still obligated to pay her mezonot.
It was not clear to me how they can enforce payment of mezonot, if he is living overseas. Maybe he is actually not such a bad fellow, and listens to the beit din. It wasn't clear. (More likely, Bituah Leumi - National Insurance - pays her, at the taxpayers' expense, and they will need to take action to collect the debt, somehow. But once she is divorced, Bituah Leumi will not do this.) What the beit din is able to do is prevent him from reentering Israel, if and when he wants to visit family, children, friends, without being stopped with the purpose of trying to get him to pay his debt of mezonot to his wife. (And that's probably what Bituah Leumi would have to do to try to get him to pay his debt back to them.) But of course, if he is really a rat, he might not ever try to return, and thus avoid paying. He won't be extradited because of this.
I leave it to you to think about whether this man should be responsible to continue to support this woman because she became ill, even if he were no longer married to her. In other words, would alimony be justified in this case? I think there are a lot of factors that might determine whether it is or is not justified (think about the responsibility to purchase disability insurance, even for stay-at-home parents). But let's suppose that it is justified - I'm sure each of us could conceive of the situation where she became sick while they were married, she raised and cared for their children while he worked, and he can't just walk out on her without being responsible, and therefore alimony is justified. Except, Jewish family law does not provide for alimony; in fact Israeli civil family law does not, either. (I hope that in a future post I will show an example of how this is rectified, in some rare situations.) The ketuba is all that the husband would be obligated to pay, if the woman did agree to the divorce, which might not be all that much. That is why this woman, whose husband has made a life with someone else and no way would reconcile and come back to his wife, insists that she wants shalom bayit. What she really wants is continued financial support.
By not obligating the woman to accept a divorce, the beit din is actually sanctioning the lifestyle of a man who has a wife and a mistress. What is that we hear about Jewish family values? Is not something perverse here? Would it not be better to say "the marriage is over, but the man must pay alimony"? By not obligating the woman to accept the divorce, this man doesn't even need a heter me'a rabbanim (see my first post). He has a heter shelosha rabbanim!! (Three rabbis, for all intents and purposes, permit him to live with another woman while he has a wife.) True, they say he is evil for doing it - but they are doing nothing to end this situation. They do not demand of the wife to accept the divorce. If the situation were that the woman were living with another man, and she wanted the divorce, but for some reason the husband didn't want to give the get (maybe she is rich and he hopes to inherit her), there is no way a beit din would tolerate the claim of shalom bayit on the part of the husband. She would be declared a moredet (a rebellious wife), would lose her ketuba, and he would be obligated to divorce her, and if need be, there would be sanctions against him until he does so.
The next case that I will summarize is almost twenty years old, but is similar in many respects, and at least this time I can cite a case number, so that you know I'm not just using a creative imagination to come up with these cases. I do not have the original pesak din; rather I refer to the summary in HaDin VeHaDayyan (case 4 in issue 22).
Case 005470158-21-1 17/7/1995
The husband sues for divorce on the grounds that he and his wife (married for over 40 years) are already living apart for eight years (recall what I said above about a lengthy separation sometimes being grounds for divorce) and they have also divided their property, and there is no chance for a reconciliation. The wife claims that the husband left the house, has other women, and she will accept a divorce if the husband fulfills the conditions set by mediators that were appointed - nine years before!!
The beit din rejects the husband's claim for divorce on the grounds that he did not fulfill the conditions set by the mediators, among which include that the husband must provide for his wife those benefits that she would receive as the wife of a shareholder in the Egged (bus company) cooperative, and a share in his pension benefits as the wife of a shareholder in the cooperative. Therefore, in reality, the couple agreed - according to the decision of the mediators - to live separately without being divorced. She remains technically his wife, so that she can continue to receive these spousal benefits. They are living this way already since the mediation decision, and the husband never sued for divorce before, so the beit din sees no reason why suddenly he should want to divorce his wife. If he did, she would lose all of these spousal benefits. Living separately, which might normally be grounds for divorce, is not accepted as grounds for divorce in this case, because they chose this way to live.
Given the situation in the first case that I described, need I say more? Oh, maybe just a reminder that I don't think that the beit din imagines for a moment that this guy is celibate all these years, especially given the wife's initial complaints. Alimony anyone?
And for my last case, fairly recent: Case 823575/7 19/12/2012
The couple in this case were divorced for three months at the time of the last hearing. The dispute is about support payments that the husband was obligated to pay prior to the divorce (remember what is says in the ketuba?), when the couple - married for over 30 years, and with four children - first approached the beit din. At that time, in 2011, the husband sued for divorce, but the wife requested shalom bayit (reconciliation). This, in spite of the fact that the husband boasted that he found a true soul-mate, a gentile woman with whom he lived, and that his wife was only such technically. The beit din then, in 2011, rejected the husband's request to divorce his wife, in no uncertain terms, and said they would not permit him to discard the wife of youth and treat a proper Jewish woman that way. And they ordered him to pay spousal support and household expenses (mezonot, as a husband - this is not alimony) in the amount of 8450 NIS per month (after taking into consideration the wife's earnings).
After approximately a year, the wife decided that she really couldn't reconcile with him, considering the slurs he said about her, and other nasty behavior that, to keep things a reasonable length, will be omitted here. So she agreed to the divorce, and they were divorced.
But, apparently, the husband never paid what he was ordered to, and now that they are divorced, he is claiming he never should have had to pay those mezonot (which she is suing for). He gives a list of reasons why, which the beit din does not accept or does not believe. It turns out that the husband has been cheating on his wife for decades - more than half of the time they were married, and this woman he is living with is the third lover he's had, and she was his lover before he left the family home.
But beyond the mezonot that the husband owes her from when they were married (even if living apart), the wife is suing for her ketuba and for additional compensation for damages.
It is clear - given the fact that the husband "slept around" (see my earlier post) - that he is obligated to pay the ketuba. But in addition, the pesak includes a discussion of what possible halakhic framework would support additional compensation for damages. It cites, at length, an article on this topic - again, too lengthy to summarize here.
The dayyan then rules that based on the precedents provided in that article, there is justification to rule in favor of compensation for the wife, based on the following reasons:
1) It is the husband who caused the destruction of the family unit.
2) The wife requested shalom bayit, but some time later agreed to accept the divorce ... [as I already summarized above].
3) We are talking about destruction of a marriage of over 38 years, more than half of which the husband has been cheating on his wife.
4) The woman's pension payments that she will receive in a several years will be very low, while the husband's income will be several times that. And, right now, he lives a very comfortable lifestyle with his mistress, both in Israel and abroad.
5) The husband admits that his wife was an eshet hayyil [a "woman of valor"] and modest, who gave all of herself to her husband and children, while he was philandering with other women.
6) The husband admits that he cheated and still cheats on his wife with a number of women, up to and including the last one (whom he calls "the European", a gentile woman), for more than 20 years.
7) The husband admits that as a result of this, he caused his wife pain, he understands her pain, and even admits that she suffered a crisis because of him.
8) In letters to his son, the husband admits that his wife is entitled to at least half of the property, and that regardless of the income of each one of the couple, it is due to the efforts of both of them that they have been so prosperous.
9) The bulk of the property is legally owned by both of them.
10) The husband has the financial ability to pay compensation, in light of his high income, his high standard of living that he lives with his mistress, including trips abroad, meals in restaurants, hotels, entertainment, horse riding, a new car for over 300,000 NIS (though part of it is a loan).
Considering that the husband already paid the ketuba and the tosefet ketuba [333,497.50 NIS, including linkage to the cost of living index], the beit din obligates the husband to pay 180,000 NIS (this is a low sum, for someone who cheated on his wife behind her back for over 20 years, and who wrote about her, in his words "modest, who gave all of herself to her husband and children" [this last parenthetical statement is in the pesak din, itself]).
In light of some of the points made by the beit din, I assume that the "slurs" that the wife referred to were things the husband said in an attempt to get the beit din to order her to accept a get.
My question in this last case is: considering what a philanderer her husband was, did the wife ever really want shalom bayit, or was she hoping for a fair settlement? I cited this last case to show another example of the beit din allowing a woman to refuse a divorce, in spite of the fact that her husband was philandering. And, to raise the question: considering mainly the matter of pension and future financial support, wouldn't alimony be justified? Do you consider the payment of ketuba, tosefet ketuba plus the 180,000 NIS (a total of approximately half a million shekels) a fair settlement instead of alimony (consider that the woman is probably some where in her 50s)? Keep in mind that she will (or did) receive half of the property, and that chances are that the value of the property is far more than 333,497.50 NIS, so that she may not see the latter.(Usually a beit din will not award the ketuba and tosefet in addition to a 50% share of the property - see this post, though in this case, since they believe that the husband wronged his wife so much, that might be their intent - it is not clearly spelled out, and the husband might yet appeal). You judge (and are invited to comment about your judgment).
Now that you saw several cases, I'll summarize some explanatory points (some of which I already stated) and then share my thoughts:
I have used the word "alimony" to mean spousal financial support for an ex-spouse (not child support). This is the usual definition, except that sometimes it also refers to spousal support during the time that a couple is separated, but is not yet divorced. I distinguish between the two, because in Jewish family law, if a couple is separated, but not divorced, then the husband is still obligated to financially support his wife (we revert, for Jewish law, to the paternalistic model - there is no such thing as a wife being obligated to support her husband, unless they have a specific financial agreement that states so), just as he is if they are living together. This financial support is called mezonot. (Don't get confused - the same word is used for support for one's children, but usually the word is qualified, so that you know for whom the mezonot are intended.)
To get a quick idea of how varied alimony laws are in different countries, and different states within the US, you can take a look at the Wikipedia entry for alimony. As I stated above, Jewish family law, unlike many other systems of law, does not provide for alimony (according to my narrow definition), nor does Israeli civil family law, apparently following the pattern of Jewish law. I hope to be able to show in a future post a case that demonstrate how, effectively, the equivalent of alimony might be awarded to a spouse.
There is something positive, in my own view, to not having alimony, but that positive aspect does not work well with the traditional model of a Jewish family (which I summarize in this post). The Jewish concept of not having alimony after divorce is consistent with the term sefer keritut ספר כריתת that appears in Deuteronomy 24, verses 1 and 3. The term is typically translated as "bill of divorce," but that does not give the flavor of the term. The word keritut has the same root as the verb to "cut off" (and other related meanings). And that is how the Sages in the Talmud understood it. A clean break. There is no clean break, if a man continues to support his ex-wife.
In an ideal situation - well, there is no ideal situation if we are talking about divorce, but in as good a situation as divorce can be - a clean break allows each spouse to begin a new life and move on. And, if both spouses have been working and have relatively equal earning potential, then there is no justification to award alimony. Alimony should not be a method of extorting money in exchange for agreeing to a divorce, nor should it be a way to penalize someone for "ruining the marriage". That's how the mudslinging begins. Alimony is a means to provide a just distribution of property and the non-financial contribution to a marriage. A spouse's efforts at home or raising children (typically the woman's) is part of the contribution to the marriage and the family, and alimony is a means to balance the various types of effort - whether they earn a salary or not.
But this "ideal" situation is not always the situation, and I'm sure you can all conceive of situations that are not so. Let's consider divorce without mudslinging - no-fault divorce. A couple agrees that the marriage isn't right and agrees to divorce. Consider on your own under what conditions it makes sense for one spouse to pay alimony to the other, and if it should be forever, or for a specified amount of time, say, until the recipient spouse finishes medical school. Factors like the ages of each spouse, the likelihood that they can each join the workforce, etc., should all be considered. One idea is for a paragraph in a couple's prenuptial agreement to require mediation in the event that one party seeks alimony.
There are various approaches as to how to divide a household in a reasonably equitable manner, but no approach should result in sham marriages, with philandering or abusive spouses, sustained in the name of justice. I believe that the batei din, by publicizing these cases, are convinced that they are demonstrating their compassion to women. (They probably also think there is a value to show that some men are refused the ability to divorce their wives.) But this form of compassion is causing women to sacrifice their self-respect in exchange for financial support.
In all of these cases, the man sues for divorce, but the woman refuses, and claims that she wants to reconcile. Unfortunately, as I mentioned in my previous post, the best example that I saw of this in the last few months was in a file that mysteriously disappeared from my computer. I'll summarize it from memory.
The husband sued for divorce, several years ago. The wife did not want to accept, but asked for shalom bayit (reconciliation). The beit din did not agree that the husband's claims against his wife were sufficient to order her to accept the divorce. But the husband now lives overseas with a woman, and, based on the fact that they have been separated for quite a while (sometimes considered a reason to order acceptance or granting of a divorce), he renewed his suit for a divorce. The woman still refuses and claims she wants him back. The beit din has compassion for this woman, abandoned by her husband, who is now living with another woman. The wife, as it turns out, is ill, and depends upon the mezonot that the husband is obligated to pay to support his wife - after all, so long as she is his wife, he is obligated to pay for her support (her earnings would reduce the sum he must pay, but this woman, it appears, was not employed). It was not clear in the case whether this woman became sick after the husband left her, before, or whether she had this illness even before they were married. No matter - the beit din will not force the woman to accept a divorce (by using sanctions against her), and they insist that the husband is still obligated to pay her mezonot.
It was not clear to me how they can enforce payment of mezonot, if he is living overseas. Maybe he is actually not such a bad fellow, and listens to the beit din. It wasn't clear. (More likely, Bituah Leumi - National Insurance - pays her, at the taxpayers' expense, and they will need to take action to collect the debt, somehow. But once she is divorced, Bituah Leumi will not do this.) What the beit din is able to do is prevent him from reentering Israel, if and when he wants to visit family, children, friends, without being stopped with the purpose of trying to get him to pay his debt of mezonot to his wife. (And that's probably what Bituah Leumi would have to do to try to get him to pay his debt back to them.) But of course, if he is really a rat, he might not ever try to return, and thus avoid paying. He won't be extradited because of this.
I leave it to you to think about whether this man should be responsible to continue to support this woman because she became ill, even if he were no longer married to her. In other words, would alimony be justified in this case? I think there are a lot of factors that might determine whether it is or is not justified (think about the responsibility to purchase disability insurance, even for stay-at-home parents). But let's suppose that it is justified - I'm sure each of us could conceive of the situation where she became sick while they were married, she raised and cared for their children while he worked, and he can't just walk out on her without being responsible, and therefore alimony is justified. Except, Jewish family law does not provide for alimony; in fact Israeli civil family law does not, either. (I hope that in a future post I will show an example of how this is rectified, in some rare situations.) The ketuba is all that the husband would be obligated to pay, if the woman did agree to the divorce, which might not be all that much. That is why this woman, whose husband has made a life with someone else and no way would reconcile and come back to his wife, insists that she wants shalom bayit. What she really wants is continued financial support.
By not obligating the woman to accept a divorce, the beit din is actually sanctioning the lifestyle of a man who has a wife and a mistress. What is that we hear about Jewish family values? Is not something perverse here? Would it not be better to say "the marriage is over, but the man must pay alimony"? By not obligating the woman to accept the divorce, this man doesn't even need a heter me'a rabbanim (see my first post). He has a heter shelosha rabbanim!! (Three rabbis, for all intents and purposes, permit him to live with another woman while he has a wife.) True, they say he is evil for doing it - but they are doing nothing to end this situation. They do not demand of the wife to accept the divorce. If the situation were that the woman were living with another man, and she wanted the divorce, but for some reason the husband didn't want to give the get (maybe she is rich and he hopes to inherit her), there is no way a beit din would tolerate the claim of shalom bayit on the part of the husband. She would be declared a moredet (a rebellious wife), would lose her ketuba, and he would be obligated to divorce her, and if need be, there would be sanctions against him until he does so.
The next case that I will summarize is almost twenty years old, but is similar in many respects, and at least this time I can cite a case number, so that you know I'm not just using a creative imagination to come up with these cases. I do not have the original pesak din; rather I refer to the summary in HaDin VeHaDayyan (case 4 in issue 22).
Case 005470158-21-1 17/7/1995
The husband sues for divorce on the grounds that he and his wife (married for over 40 years) are already living apart for eight years (recall what I said above about a lengthy separation sometimes being grounds for divorce) and they have also divided their property, and there is no chance for a reconciliation. The wife claims that the husband left the house, has other women, and she will accept a divorce if the husband fulfills the conditions set by mediators that were appointed - nine years before!!
The beit din rejects the husband's claim for divorce on the grounds that he did not fulfill the conditions set by the mediators, among which include that the husband must provide for his wife those benefits that she would receive as the wife of a shareholder in the Egged (bus company) cooperative, and a share in his pension benefits as the wife of a shareholder in the cooperative. Therefore, in reality, the couple agreed - according to the decision of the mediators - to live separately without being divorced. She remains technically his wife, so that she can continue to receive these spousal benefits. They are living this way already since the mediation decision, and the husband never sued for divorce before, so the beit din sees no reason why suddenly he should want to divorce his wife. If he did, she would lose all of these spousal benefits. Living separately, which might normally be grounds for divorce, is not accepted as grounds for divorce in this case, because they chose this way to live.
Given the situation in the first case that I described, need I say more? Oh, maybe just a reminder that I don't think that the beit din imagines for a moment that this guy is celibate all these years, especially given the wife's initial complaints. Alimony anyone?
And for my last case, fairly recent: Case 823575/7 19/12/2012
The couple in this case were divorced for three months at the time of the last hearing. The dispute is about support payments that the husband was obligated to pay prior to the divorce (remember what is says in the ketuba?), when the couple - married for over 30 years, and with four children - first approached the beit din. At that time, in 2011, the husband sued for divorce, but the wife requested shalom bayit (reconciliation). This, in spite of the fact that the husband boasted that he found a true soul-mate, a gentile woman with whom he lived, and that his wife was only such technically. The beit din then, in 2011, rejected the husband's request to divorce his wife, in no uncertain terms, and said they would not permit him to discard the wife of youth and treat a proper Jewish woman that way. And they ordered him to pay spousal support and household expenses (mezonot, as a husband - this is not alimony) in the amount of 8450 NIS per month (after taking into consideration the wife's earnings).
After approximately a year, the wife decided that she really couldn't reconcile with him, considering the slurs he said about her, and other nasty behavior that, to keep things a reasonable length, will be omitted here. So she agreed to the divorce, and they were divorced.
But, apparently, the husband never paid what he was ordered to, and now that they are divorced, he is claiming he never should have had to pay those mezonot (which she is suing for). He gives a list of reasons why, which the beit din does not accept or does not believe. It turns out that the husband has been cheating on his wife for decades - more than half of the time they were married, and this woman he is living with is the third lover he's had, and she was his lover before he left the family home.
But beyond the mezonot that the husband owes her from when they were married (even if living apart), the wife is suing for her ketuba and for additional compensation for damages.
It is clear - given the fact that the husband "slept around" (see my earlier post) - that he is obligated to pay the ketuba. But in addition, the pesak includes a discussion of what possible halakhic framework would support additional compensation for damages. It cites, at length, an article on this topic - again, too lengthy to summarize here.
The dayyan then rules that based on the precedents provided in that article, there is justification to rule in favor of compensation for the wife, based on the following reasons:
שיקולי בית הדין
לגבי גובה הפיצוי בנידון דידן הם כדלהלן:
א. הבעל הוא שגרם לפירוק והריסת התא המשפחתי.
ב. האישה תבעה שלום בית, אולם לאחר זמן הסכימה לקבל
את גטה מאחר ושוב לא יכלה לעמוד בהשמצות הבעל ובהתנהגותו כפי שכתבנו לעיל.
ג. מדובר בהרס של בית לאחר שלושים ושמונה שנות
נישואין שבמשך למעלה ממחציתה הבעל רעה בשדות זרים.
ד. גובה הכנסות האישה לפנסיה בעוד מספר שנים הוא נמוך
מאד בעוד שהכנסתו של הבעל גבוהה פי כמה. ועתה חי לו חיי הרווחה עם בת זוגתו,
לעיתים בארץ ולעיתים בחו"ל.
ה. הבעל הודה כי האישה הייתה אשת חיל וצנועה שהעניקה
את כל כולה לבעלה וילדיה בזמן שהבעל התרועע עם נשים אחרות.
ו. הבעל הודה כי במשך שנים רבות בגד ובוגד באשתו עם
מספר נשים ועד האחרונה ("האירופאית" כלשונו, נוכרית) למעלה מעשרים שנה.
ז. הבעל הודה כמובא לעיל כי הכאיב לאשתו ומבין את
כאבה ואף מודה כי הביא אותה למשבר קשה בדרך צינית.
ח. הבעל אף במכתביו לבנו כתב כי חלקה של האישה ברכוש
שנצבר לכל הפחות מחצית כמו שמגיע לו, ובזכות שניהם הגיעו לרכוש זה וזה לא קשור
להכנסה הפורמאלית של כל אחד.
ט. עיקר הרכוש שיש לצדדים רשום ע"ש שניהם בחלקים
שווים.
י. יש ביכולתו של הבעל לשלם פיצוי שיושת עליו לאור
הכנסתו הגבוהה ורמת החיים הגבוהה שהוא חי עם בת זוגתו הכוללת נסיעות לחו"ל,
מסעדות, בתי מלון, בילויים, רכיבה על סוסים, קניית רכב חדש בסכום של למעלה
מ-300,000 ש"ח (אמנם על חלקו יש הלוואה).
בהתחשב בכך
שהבעל כבר חויב במלוא הכתובה ותוספת כתובה [כתבו במקום אחר שצמוד למדד זה שווה 333,497.50 ש"ח], בית הדין מחייב את הבעל ב-180,000
ש"ח (זהו סכום נמוך למי שבגד באשתו מאחורי גבה למעלה מ-20 שנה
ושעליה כתב "אישה צנועה" שהעניקה את כל כולה לי ולילדים", כלשונו).
The considerations of the beit din regarding the amount of the compensation in our case are as follows:1) It is the husband who caused the destruction of the family unit.
2) The wife requested shalom bayit, but some time later agreed to accept the divorce ... [as I already summarized above].
3) We are talking about destruction of a marriage of over 38 years, more than half of which the husband has been cheating on his wife.
4) The woman's pension payments that she will receive in a several years will be very low, while the husband's income will be several times that. And, right now, he lives a very comfortable lifestyle with his mistress, both in Israel and abroad.
5) The husband admits that his wife was an eshet hayyil [a "woman of valor"] and modest, who gave all of herself to her husband and children, while he was philandering with other women.
6) The husband admits that he cheated and still cheats on his wife with a number of women, up to and including the last one (whom he calls "the European", a gentile woman), for more than 20 years.
7) The husband admits that as a result of this, he caused his wife pain, he understands her pain, and even admits that she suffered a crisis because of him.
8) In letters to his son, the husband admits that his wife is entitled to at least half of the property, and that regardless of the income of each one of the couple, it is due to the efforts of both of them that they have been so prosperous.
9) The bulk of the property is legally owned by both of them.
10) The husband has the financial ability to pay compensation, in light of his high income, his high standard of living that he lives with his mistress, including trips abroad, meals in restaurants, hotels, entertainment, horse riding, a new car for over 300,000 NIS (though part of it is a loan).
Considering that the husband already paid the ketuba and the tosefet ketuba [333,497.50 NIS, including linkage to the cost of living index], the beit din obligates the husband to pay 180,000 NIS (this is a low sum, for someone who cheated on his wife behind her back for over 20 years, and who wrote about her, in his words "modest, who gave all of herself to her husband and children" [this last parenthetical statement is in the pesak din, itself]).
In light of some of the points made by the beit din, I assume that the "slurs" that the wife referred to were things the husband said in an attempt to get the beit din to order her to accept a get.
My question in this last case is: considering what a philanderer her husband was, did the wife ever really want shalom bayit, or was she hoping for a fair settlement? I cited this last case to show another example of the beit din allowing a woman to refuse a divorce, in spite of the fact that her husband was philandering. And, to raise the question: considering mainly the matter of pension and future financial support, wouldn't alimony be justified? Do you consider the payment of ketuba, tosefet ketuba plus the 180,000 NIS (a total of approximately half a million shekels) a fair settlement instead of alimony (consider that the woman is probably some where in her 50s)? Keep in mind that she will (or did) receive half of the property, and that chances are that the value of the property is far more than 333,497.50 NIS, so that she may not see the latter.(Usually a beit din will not award the ketuba and tosefet in addition to a 50% share of the property - see this post, though in this case, since they believe that the husband wronged his wife so much, that might be their intent - it is not clearly spelled out, and the husband might yet appeal). You judge (and are invited to comment about your judgment).
Now that you saw several cases, I'll summarize some explanatory points (some of which I already stated) and then share my thoughts:
I have used the word "alimony" to mean spousal financial support for an ex-spouse (not child support). This is the usual definition, except that sometimes it also refers to spousal support during the time that a couple is separated, but is not yet divorced. I distinguish between the two, because in Jewish family law, if a couple is separated, but not divorced, then the husband is still obligated to financially support his wife (we revert, for Jewish law, to the paternalistic model - there is no such thing as a wife being obligated to support her husband, unless they have a specific financial agreement that states so), just as he is if they are living together. This financial support is called mezonot. (Don't get confused - the same word is used for support for one's children, but usually the word is qualified, so that you know for whom the mezonot are intended.)
To get a quick idea of how varied alimony laws are in different countries, and different states within the US, you can take a look at the Wikipedia entry for alimony. As I stated above, Jewish family law, unlike many other systems of law, does not provide for alimony (according to my narrow definition), nor does Israeli civil family law, apparently following the pattern of Jewish law. I hope to be able to show in a future post a case that demonstrate how, effectively, the equivalent of alimony might be awarded to a spouse.
There is something positive, in my own view, to not having alimony, but that positive aspect does not work well with the traditional model of a Jewish family (which I summarize in this post). The Jewish concept of not having alimony after divorce is consistent with the term sefer keritut ספר כריתת that appears in Deuteronomy 24, verses 1 and 3. The term is typically translated as "bill of divorce," but that does not give the flavor of the term. The word keritut has the same root as the verb to "cut off" (and other related meanings). And that is how the Sages in the Talmud understood it. A clean break. There is no clean break, if a man continues to support his ex-wife.
In an ideal situation - well, there is no ideal situation if we are talking about divorce, but in as good a situation as divorce can be - a clean break allows each spouse to begin a new life and move on. And, if both spouses have been working and have relatively equal earning potential, then there is no justification to award alimony. Alimony should not be a method of extorting money in exchange for agreeing to a divorce, nor should it be a way to penalize someone for "ruining the marriage". That's how the mudslinging begins. Alimony is a means to provide a just distribution of property and the non-financial contribution to a marriage. A spouse's efforts at home or raising children (typically the woman's) is part of the contribution to the marriage and the family, and alimony is a means to balance the various types of effort - whether they earn a salary or not.
But this "ideal" situation is not always the situation, and I'm sure you can all conceive of situations that are not so. Let's consider divorce without mudslinging - no-fault divorce. A couple agrees that the marriage isn't right and agrees to divorce. Consider on your own under what conditions it makes sense for one spouse to pay alimony to the other, and if it should be forever, or for a specified amount of time, say, until the recipient spouse finishes medical school. Factors like the ages of each spouse, the likelihood that they can each join the workforce, etc., should all be considered. One idea is for a paragraph in a couple's prenuptial agreement to require mediation in the event that one party seeks alimony.
There are various approaches as to how to divide a household in a reasonably equitable manner, but no approach should result in sham marriages, with philandering or abusive spouses, sustained in the name of justice. I believe that the batei din, by publicizing these cases, are convinced that they are demonstrating their compassion to women. (They probably also think there is a value to show that some men are refused the ability to divorce their wives.) But this form of compassion is causing women to sacrifice their self-respect in exchange for financial support.
תודה על הפוסט.
ReplyDeleteיתכן שהביקורת צריכה להיות מופנית בראש ובראשונה לחוק הישראלי האזרחי שקיבל על עצמו את ההלכה בנושא המזונות.
כידוע, גם בית המשפט דן מזונות (אשה או ילדים) לפי ההלכה, ולכן גם הוא אינו יכול לחייב מזונות לאחר גירושין, אלא אם מדובר בנישואין אזרחיים. מכיון שסטטיסטית רוב תיקי המזונות נידונים בבית המשפט ולא בבית הדין, הרי שהבעיה שם לא פחותה מאשר בבתי הדין, אולי אפילו גדולה יותר.
אפשר כמובן לרצות שההלכה תשתנה, אבל אם נהיה ראליים, הרי שהסיכוי לשנות את החוק האזרחי גדול לאין שיעור, ולכן אליו יש לכוון את הביקורת (יש הרבה עיוותים שנוצרים כאשר כופים את דיני המזונות ההלכתיים על העולם המודרני, לא רק זה שבו עסק הפוסט).
אם אשה הייתה מקבלת מזונות לאחר הגירושין בבית המשפט, סביר להניח שהדבר היה משפיע גם על הליך הגירושין שלה בבית הדין, אפילו במקרים הקשים שהובאו כאן.
Amihai, Thank you for your important comment. You can see that I mentioned (two times) in my post that the Israeli civil law is like the religious law in this matter. A no-fault system, where marriages that have soured and are irreparable should end, and just financial settlements are decided independent of the divorce, would be the direction to go. You are correct that critique of the civil law is in order - and people should press the Knesset members to be concerned with this (but I don't have much hope there). However, the point of my blog is to look at Jewish family law, which is why I focus on that. Also, my aim is for people to know what they are getting into when they get married. There is no other contractual agreement as serious as marraige that people enter with so little awareness of the "fine print". They cannot rely on the system to protect them. Given my lack of optimism about any change soon to civil law, and certainly not to religious law, people should have well thought-out prenuptial agreements and know what they are getting into, or choose alternative methods to establish a relationship.
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