VaTashar Devora logo

VaTashar Devora logo
“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

Monday, May 6, 2013

What's the value of a ketuba? - Part II

In the case that I presented in my last post, I stated that the beit din ruled that the husband should be forced to give his wife a get, because he was "sleeping around" with other women, and they also ruled that the husband had no legitimate claims that would disqualify the woman from being paid her ketuba.

To some of you, this latter point may come as a surprise.  Many people - both in Israel and outside of Israel - are under the impression that the ketuba is never paid these days.  Outside of Israel, indeed, it is quite rare, because there is civil divorce, and the property division is settled in the civil courts.  A civil court outside of Israel will  not consider a ketuba as a binding contract, if for nothing else, because the values of the zuz and zaquq are not certain.  (See my previous post.)  This does not prevent a couple from agreeing to settle their property division in a beit din according to the ketuba and Jewish family law, if they both agree, but a civil court would not do so.  If the husband and wife were really being true to halakha, they would settle their dispute in the beit din, so that they would not turn to the gentile court for adjudication - a prohibition, as you shall see further on in this post - except when there is no alternative.

Israeli law also permits a couple to settle property division in the civil court according to civil law, but in Israel, a couple can also settle their property division - whether amicably or not - in the beit din.  The question is, does the beit din operate solely according to halakha, or does Israeli civil law come into play?  This is the tricky part.  I will not even attempt to explain what is supposed to happen, according to Israeli law - it is very complex, and seems to be interpreted differently by different people.  We will see how, in effect, this happens in the recent cases that I will be citing in this blog, the first to be the continuation of the case cited in my previous post.

However, first I must summarize a few main principles of the Israeli "Law of Financial Relations between Couples" (to be referred to as  "Israeli Law") in a very simplified fashion, and then point out some significant differences between that and halakha.

Under the Israeli Law:
1) A couple may sign any financial agreement that they wish (always a smart move, no matter where a couple lives, rather than to rely on the courts to interpret matters), before or after marriage (different procedures in each case), including a financial agreement arrived at in the beit din.
2) In the event that there is no financial agreement, all property that was accumulated during the marriage - not counting personal gifts or inheritance - whether registered with joint ownership or not, is considered joint property and is to be "equalized", if a couple divorces, or if one of the spouses requests such a division in the family court, prior to divorce.  This property includes pension funds, severance pay, savings, tax-deferred savings funds, etc.  The court has the right to include, for this purpose, even property that one spouse has transferred its ownership to someone else, if the court (or beit din) sees it as an attempt to hide some of the property.
3) The family court or beit din has the option to make implementation of the "equalization" of property according to this law contingent upon an agreement to divorce.
4) "Equalization" of property is done by assessing the value of the  property (including such things as pension funds) of each spouse, and then if the values are not equal, the spouse who owns the greater amount must give half the difference to the other spouse.
5) The court or beit din has the option to decide that some or all of the property should not be divided 50-50, but rather according to a different proportion, because the court takes into consideration such factors as earning potential of one spouse.  This is an important point for when I get to the subject of alimony.

Now, here come the very problematic points, both in Part IV of the law, and because they are so essential, I will cite them first in Hebrew, and then translate them.  (Here is a link to a website with the complete law in Hebrew, for those who are interested and want to see all the details that I left out.  You can also download the whole page as a Word document.)
החוק ובתי הדין
13.   (א)  חוק זה אינו בא לשנות מסמכות שיפוטם של בתי הדין הדתיים.
           (ב)  בענין שחוק זה דן בו ינהג גם בית דין דתי לפי הוראות חוק זה, זולת אם הסכימו בעלי הדין לפני בית הדין להתדיין לפי הדין הדתי.
The Law and the Batei Din
13. (a) This law does not alter the authority of the religious courts.
     (b) In any matter that this law is relevant, the relgious court must
         also operate according to this law, unless both parties agree to
         be judged according to the religious law.
שמירת זכויות ודינים
17.   אין בחוק זה כדי לגרוע מזכויות לפי חוק לתיקון דיני המשפחה (מזונות), תשי"ט-1959, או מזכויות האשה לפי כתובתה
Retention of Rights and Laws
17. This law does not cancel the rights that are accorded under the Family Law of 1959, or a woman's rights according to her ketuba.

The model that the Israeli Law operates under is one of a partnership in marriage.  It doesn't matter who earns more, who worked more years, who had a better pension plan, who stayed home with the kids and sacrificed career growth - they are in it together, and if the family unit is dissolved, whatever was accomplished, earned, saved, invested is considered a joint endeavor. Point 5) in my listing is relatively recent, and it is intended to serve a similar purpose as alimony, which is not defined in and of itself in the Israeli Law. We will look at a very recent interesting case in the context of alimony in a future post.  

Halakha operates under a very different model.  Again, I'll summarize a few main principles in a very simplified fashion:
1) A couple may sign any financial agreement that they wish (always a smart move, no matter where a couple lives, rather than to rely on the default under halakha), before or after marriage.
2) In the event that there is no such agreement, all property that was accumulated during the marriage - not counting personal gifts or inheritance - whether earned by the husband or the wife, belongs to the husband.  Even the earnings on her dowry (suppose she brought a plot of land as part of her dowry) belong to the husband.  Even if she finds a winning lottery ticket, it belongs to the husband.
3) In exchange for the husband's total ownership, he has the obligations that he agreed to in the ketuba (see the previous post).

Now I want you to do an exercise.  Think of scenarios in which the wife would come out better off under the Israeli Law and scenarios in which she'd be better off according to halakha, in the event of a divorce.  Then, consider the same question in the case of the husband.

And, now, finally, we can return to our case at hand, 
Case 838835/8 in the Tel Aviv beit din (pesak dated 24/1/2013)

Remember that I concluded saying that the beit din determined that the husband did not prove any reason that he should be absolved from paying the ketuba.  And now comes the "but":

אך בשלב זה אינה רשאית לגבות סך כתובתה כל עוד לא ניתנה פסיקה על תביעת הזכויות וקופות גמל ומוניטין של הבעל שתבעה האשה בבית משפט.

But at this stage, she is not entitled to collect the value of her ketuba, so long as there has not yet been a judgment on her claim for rights, pension funds, and the husband’s worth [such as the value of a business that he built while married to her], for which she entered a claim in the family court.

This sounds fair enough - a woman can't expect to collect both types of settlements.

However, it is interesting to see the halakhic reasons that the av beit din (head dayyan, Shimon Malka) gives for his ruling that at this stage she cannot collect her ketuba.  The first reason is what I referred to before, the prohibition to bring a claim to the gentile courts:

שו"ע חו"מ סימן כ"ו סע' א' אסור לדון לפני דייני עכו"ם ובערכאות שלהם אפי' בדין שדנים כדיני ישראל, ואפי' נתרצו בעלי דינים לדון בפניהם אסור. (כ"כ הרמב"ן הרשב"א).

Shulhan Arukh Hoshen Mishpat 26,1:  It is forbidden to be judged before gentile judges and in their court system, even if their law is in accordance with Jewish law, and even if both parties agree to be judged before them, it is prohibited.

The av beit din  proceeded to cite additional sources to emphasize the severity of this prohibition and to explain why such possible claims as dina d'malkhuta dina (the law of the government is accepted as law) do not apply in this case. Need I remind you that all this discussion - for several pages - relates to the Israeli court system, and not a court system in, say, Tsarist Russia?

The av beit din then summarizes his conclusions, which are the same as before:  the husband is obligated to divorce his wife; the wife has not lost her right to the ketuba, but cannot collect at this stage, so long as there has not yet been a judgment in the family court on her suit.

However, there is a dissenting opinion, written by R. Eliyahu Hishrik, another of the dayyanim.  The dissenter does not dispute the conclusion about the obligation of the husband to give a get.  But he does dispute the conclusion about the ketuba, and states:
הבעל לא הוכיח על פי דיני הראיות כל עילה שיש בה כדי להפסיד לאשה את כתובתה. ולפיכך חייב הבעל לשלם לאשתו את כל סכום הכתובה שכתב – בסך 360,000 ₪.

The husband did not prove, according to the laws of evidence, any justification for the woman to lose her ketuba, and therefore the husband is obligated to pay his wife the whole sum of 360,000 NIS that he wrote on the ketuba.

R. Hishrik then states that the case centers around the questions as to whether a husband can be obligated to pay the ketuba after the division of property is done in the family court under Israeli Law.  R. Hishrik proceeds with a lengthy discussion of the background of the conflict between the two systems of law, the differences between them (some of which I pointed out), and the implications.  I will summarize some important points that he makes:

  • Whether the husband and wife agree to be judged in the family court or whether they agree to be judged in the beit din system, the property settlement will be in accordance with the Israeli Law (according to the understanding of the respective judges).
  • In either case, the losing side is usually the husband from the perspective of the halahka, because according to the halakha some of what rightfully belongs to the husband will be awarded to the wife.
  • Therefore, the batei din have adopted a common method whereby there is no "double dipping" - a beit din will not award a woman her ketuba if she receives her settlement of property from the family court, considering the fact that the family court awarded her property that isn't even rightfully hers, according to the halakha.
However, R. Hishrik then states that this thinking is not correct in all situations. R. Hishrik understands paragraph 17, cited way above, to mean that even if a woman wins a settlement in the family court, it should not impinge her rights to her ketuba!!  R. Hishrik says that there are those who interpret paragraph 17 to mean that the settlement in family court should not impinge upon the rights of a woman to her ketuba in the case that the settlement in family court was less than the value of the ketuba (in other words, one of those cases in which the perhaps the joint property doesn't amount to much).  But R. Hishrik disagrees. He says that it isn't the job of the dayyanim to start to write interpretations of Israeli law, and the peshat - the simple interpretation - of the law is that a woman doesn't lose her rights to her ketuba because of a settlement in family court.

R. Hishrik writes a rather lengthy discussion of this opinion, including comparison to inheritance law and the use of the ketuba in situations of widowhood.  He discusses how a religious couple versus a secular couple would view their own financial arrangements.  He assumes that a religious couple would internalize the religious law and live accordingly.  He discusses the legal standing of a ketuba, and what the contract represents.  He presents different models of how the ketuba and the family court settlement might or might not be set against one another, with systematic analysis of each model. His extensive opinion could probably be used as a source for multiple classes in law school on this subject.

So before I lose you (and myself) in all of the legalistic discussion, I will mention an important point that he makes:  It was the husband who opened the case before the family court and the husband who opened the case in the beit din to request to divorce his wife.  So it is the husband who is guilty of transgressing the prohibition to go to the "gentile" court for judgment.  And then R. Hishrik points out something interesting.  What happens if someone did, nevertheless?  Well the Shulhan Arukh doesn't say, but on that same paragraph that we saw above, the Rem"a states that if he did, he cannot renege.  In other words: you went to the family court, too bad for you, but it doesn't get you out of your obligation for the ketuba (the latter being R. Hishrik's conclusion).  Therefore, he concludes that the husband must pay the 360,000 NIS.

But the third dayyan (Zevadya Cohen) agrees with the av beit din, and states - very briefly, praise to the Lord - that the judgment on the ketuba must wait until the judgment in the family court is passed.

The concluding pesak of the beit din is according to the majority opinion, and included a statement to the effect that if the husband refuses to give his wife the get, the beit din will consider "methods of enforcement", in accordance with halakha (and the law in Israel).

It is likely that in this case, the husband thought that by going to the family court, he would have to pay less than he would if he had to pay his ketuba.  It appears - we don't know what the final outcome will be - that the beit din won't let him get away with that.  They will rule that he has to top off whatever the family court ruled so that the total is 360,000 NIS.  If he doesn't have it - well, that is another problem.

So, what is a ketuba worth?  Well, in this case it might depend upon how financially solvent the two-timing husband is.

And, lastly, what is my opinion in all this?  The husband might be a rat fink, but the use of the ketuba that way, even according to the majority opinion, is still unjust (in this case unfair to the man, assuming that she will collect some additional amount from the ketuba), and certainly the minority opinion, as clever as his halakhic argument was, is unfair, if we view a marriage as an equal partnership.  I'd like to think it is.  I prefer the model of the Israeli Law, and I think that a couple would be wise to keep the value on the ketuba to the bare minimum, so that there is a fair equalization of property.  (There are reasons - particularly in a second marriage, where each spouse has children from a previous relationship, where it makes sense to keep some property separate, and this should be spelled out in a financial agreement.)  And, any financial agreement between a man and a woman who are establishing a domestic relationship should specify that the ketuba cannot be claimed (rendering it quite obsolete - I'll return to that in a future post).    Rather, whatever property settlement that the couple consider truly equitable should be the rule.  In conclusion, any couple that marries and has a ketuba should therefore have some form of financial agreement (and probably so should any other couple).  Remember, that is also a halakhically valid option!

What do you think?


  1. Would it not be more straightforward for a religious couple living in Israel to include any prenuptial agreements they wish to make in the ketuba itself? This way the agreements would be legally binding, while preserving the original purpose of the ketuba.

    1. You are right - it would make sense and return the ketuba to its original purpose. But the ketuba is one-sided (as I pointed out in part I about the ketuba), and a prenup would include commitments in both directions, so that it would really be a new form of contract. Halakhically, there are ways to do that, but the Orthodox establishment looks at the ketuba like it was given at Sinai and changing the text is a sacrilege, old ketuba collections proving otherwise, notwithstanding. If you look at ketubot from centuries ago, you will see all kinds of conditions set in them, though they were conditions set by the woman for the man to commit to (such as he will not take another wife without her agreement). Prenuptial agreements can be included in what is called tena-ei ketuba (conditions for the ketuba), and this agreement could override or supplement what is in the ketuba, but the standard ketuba - other than varying the monetary amount that the husband is obligated in - is kept intact in the Orthodox establishment.


Comments to this blog are moderated. Serious, open-minded engagement and dialectic are welcomed. But if all you have to offer is something like “you have to accept God’s decree”. Or “who are you to say that the Sages were not sensitive enough?”, then please, save your bandwidth.

Note: Only a member of this blog may post a comment.