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“The books, the compositions, and the commentaries are our teachers, and all is according to the understanding of the intellect and reason.” R. Sh’muel ben Moshe di Modina

Tuesday, May 21, 2013

Follow-up to Askmakhta post - The Chief Rabbinate's Maximum Tosefet Ketuba

I know, I know.  I said my next post would be about alimony (or lack thereof). But Professor Amihai Radzyner on the Bar-Ilan University Law Faculty called something interesting to my attention, in light of my previous post, and I think it is worthy of a follow-up post.  Besides, the two most important files that I wanted to use for my discussion of alimony disappeared (and I already tried data recovery, to no avail), and this way I have an excuse to delay figuring out how I'm going to deal with that.

What Professor Radzyner called to my attention is a pesak din (5192-21-1 Ashkelon) from November 8, 2001, in which there is a citation of a direction by the Chief Rabbinate about the maximum tosefet ketuba (see previous post).
יא. סכום של מליון ש"ח אינו מוגזם
במכתב מטעם הרבנות הראשית למנהלי לשכות רושמי נשואין נתנו כמה הוראות שעל הרבנים עורכי החופות להקפיד, ובין השאר ( י"ד תשרי תשס"ב ), נאמר שעליהם להקפיד שלא לכתוב תוספת כתובה מוגזמת, והם ממליצים שם ואומרים "סכום תוספת הכתובה, לא יעלה על מליון ש"ח ", משמע שהם העריכו שעד סכום כזה עדין זה בגדר הסביר, ואין זה סכום מוגזם שנאמר עליו אסמכתא.
11. An Amount of One Million NIS is not Exaggerated
In a letter from the Chief Rabbinate to the directors of the marriage registration bureaus, several directions were given, by which it is incumbent upon the officiators of weddings (huppot) to abide.  Among them (14 Tishrei 5762) it is stated that they must be certain that they should not write an exaggerated tosefet ketuba, and they (the Rabbinate) recommend that "the amount of the tosefet ketuba should be no more than a million NIS."  This implies that they assessed that up to this amount is still considered reasonable, and this sum is not so exaggerated that it could be called asmakhta.
Now, in my previous post, I asked the following question:
2) Why in the world don't the mesadrei kiddushin (the clergy who perform the weddings) tell the couple that it is best to keep the standard, minimum amount on the ketuba and not put in sums that they (or at least the groom) might regret later? Why do they let grooms give ketubot with exaggerated amounts on them?
So, actually, in the case in that post, the mesader kiddushin might very well have been aware of the direction of the Chief Rabbinate from more than a decade before.  But then, why did the beit din rule that the husband should pay 200,000 NIS, and not the full amount?  Why did they consider the 1,000,000 NIS a situation of asmakhta?  It appears to be a clear case of the lack of oversight or authority of the Chief Rabbinate.

And, even in the case just cited, where the decision states that:

לאחר כל מה שכתבנו לעיל, נראה שחיוב הכתובה גם כאשר הסכום הנקוב בו גבוה ביותר מחייב את הבעל ככל התחייבות.
Considering all that we wrote above, it appears that the obligation of the ketuba, even when the amount is very high, is obligatory upon the husband, as any obligation.

And yet, the beit din determines that they nevertheless should impose a compromise on the parties, because they have not removed all doubt about what amount is really the maximum over which it would be considered asmakhta!

Now, consider this quite recent case (871774/1, Tverya), from 7/3/2013, where the ketuba is 2,000,000 NIS!!  (Inflation hasn't been so high, has it?)

In this case, there was already a decision by the beit din, two months prior, that the couple should divorce. They then originally set a date of thirty days later to determine the decision about payment of the ketuba, and then the husband was given an additional thirty days to bring evidence to back up his claims that the wife was not entitled to her ketuba (showing fault on her part). But the husband did not bring any evidence of substance, and the beit din rules that therefore the woman is entitled to her ketuba

They cite the classic sources (mostly rishonim: Maimonides, Nahmanides, Maggid Mishne, R"I Migash, and more - in my opinion this material is just meant to pad the pesak din and does not really add anything that anyone who knows the halakha doesn't  know) about a woman's entitlement to the ketuba unless proper evidence and testimony is brought to show her wrongdoing. Further, these sources show that without any reasonable evidence, she does not need to take an oath to declare her innocence.

על כן בנסיבות שבפנינו שאין בפנינו עדות של עד אחד המעיד עדות שראה בעצמו את המיוחס לאשה, אין אסמכתא אחרת לטענה זו, וגם הבעל אינו טוען שראה בעצמו את המיוחס לה בטענותיו – אין מקום לחיוב שבועה.
Therefore, in the situation that is before us, we do not have testimony of even one witness to testify that he saw himself what is claimed about the woman, there is no other evidence about this claim, and even the husband himself does not claim that he himself saw her [do] what is attributed to her in his claims.  There is no justification for obligating an oath.

What remains is for the beit din to rule on the amount to be paid, and in this matter the beit din is not unanimous.  The majority opinion (reminder: two out of three) is that the husband must pay the full amount.  They are aware of the opinion that 120,000 NIS is the maximum amount to be paid (see previous post), but maintain that it does not apply in this case; they discuss and dismiss, with various arguments, opinions that exorbitant sums are not obligatory, and one of the two dayyanim even claims that since many people own apartments that are worth 2,000,000 NIS, it is not even such an exorbitant sum.

Nevertheless, they do make the following recommendation - which does not affect this decision that the husband is obligated to pay.

מכאן יש לצאת בקריאה לרבנים מסדרי חו"ק שיפעלו למנוע כתיבת סכומי כסף מופרזים בשטר הכתובה, ויבהירו לחתן ששטר הכתובה שריר וקיים גם אם נכתב בו סכום גבוה מאוד, ומן הראוי שייכתב סכום סביר.
In consideration of this, it behooves us to declare to the rabbis who officiate at weddings (huppa v'qiddushin) that they should act to prevent the writing of outrageous amounts in the ketuba document, and they should warn the groom that the ketuba document is "firm and established" [i.e., totally valid], even if a very high value is written in it, and therefore it is appropriate to write a reasonable sum.

The dissenting dayyan states that the financial situation of the husband has changed, and he has psychological problems, and that he should pay, in place of the 2,000,000 NIS, 150,000 NIS, as compensation for the ketuba (that he really isn't paying - how do you compensate for a large amount with a small one?), and as compensation for the fact that he was unfaithful to his wife, and even had a child with another woman.  This dissenting dayyan even uses the word kenas - penalty.  

This actually raises a different topic - is payment of a ketuba (or alimony, which doesn't exist in Jewish family law, but we'll get to that soon) a penalty for being at fault, for being unfaithful to one's wife, for example?  And, if payment of the ketuba is viewed as a penalty - and in a future post we will look at some cases that view it as such - then what does it say about payment of the ketuba to a widow?  Is it some kind of "penalty"?!  Something for you to think about, until I address that topic in a future post.

In the meantime, I'd like to reiterate regarding the ketuba: A couple should have an equitable financial prenup (no matter what type of wedding they have - Orthodox or not), a no-fault prenup, that makes it clear that if the marriage "is over" for whatever reason, after reasonable professional marriage counseling is tried for a reasonable amount of time, the  property will be divided according to this agreement, and all mudslinging will be avoided. Children, if there are, will thus be spared hearing the bad behavior of their parents (at least the bad behavior that they are not already aware of), the process will be quicker, and the court systems will have a lesser load, thus bringing justice to more people faster.  Rights to a ketuba should be waived in that prenup.  And, the prenup should be drafted by professionals who make certain that it will be upheld in court - family court, and one of the stipulations in the prenup should be that the settlement is in fact resolved in the family court.  Technically, such an agreement could state that the couple agrees to have this settlement arranged in the beit din, but I think a system that has both male and female judges, a system whose default property division is more equitable and is based on a more relevant model of family structure and finances, is more likely to be the more equitable system.

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