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

Thursday, May 2, 2013

What's the value or use of a ketuba? - Part I

When you think of a ketuba, do you think of  this?
Beinecke Rare Book & Manuscript Library, Yale University; image in the public domain
or this?

Homeless Woman in Washington D.C., by dbking (originally posted to Flickr as #13), via Wikimedia Commons

Well, that should get your attention!
I'd really like to start looking at some real cases, but I believe at least some broad-stroked explanation of the ketuba is in order, for those readers who are not so familiar with what it really means (and I bet that includes most people). So, without getting too bogged down in details, multiple versions and customs in different communities, the difficulties of translating the nuances of certain Aramaic words, etc., etc., here goes.

Until a woman wants to collect payment on her ketuba or a man is instructed by the beit din to pay up, I think most people think of the ketuba as a lovely romantic document that articulates the loving relationship between a man and a woman.  In actuality, though there are some nice words in the ketuba about how the groom stated that he will "work (אפלח literally is "I will work", or "I will worship" - if it is in reference to a god or idol, but you can find it translated many ways in translations of the ketuba), honor, support, and maintain you in accordance with the custom of Jewish men who work, honor, support, and maintain their wives faithfully," that's about as far as the romance goes.  After that, it pretty much gets down to the money.

There are no romantic words about how the bride said that she will work, honor, support, and maintain the groom, because this is basically a one-sided contract.  Some will try to use this point to prove how it is all to the wife's advantage.  Only the groom has obligations.  They are misleading.   By accepting the groom's offer of betrothal - it is stated in the ketuba that the bride did so - she consented to everything that qiddushin entails, under Jewish law, and what she is consenting to is not spelled out in the ketuba.  Mind you, she is also consenting to the fact that if she is widowed, but her husband does not have any descendants (from any relationship, even a mamzer would qualify as a descendant to absolve her), then she must undergo halitza (see my Introduction), and if the yabam is a little kid, then she must wait.  That, too, is what she agrees to.

The rest of the ketuba spells out how much money the man takes responsibility to pay, even if he has to mortgage everything he owns, if the marriage is dissolved in his lifetime (which would mean if they are divorced), or after his death (to be carried out by his heirs out of the estate).  Divorce or death are not actually mentioned.  They are implicit.

The amount of money involved has several components.  According to both Sephardi and Ashkenazi custom, there is a gift, the mohar, that the groom gives to the bride (but is actually held for her by the husband), which is set to 200 zuz for a "virgin" and 100 zuz for a widow or divorcee (maybe it is not because she is "used merchandise" but because it is an incentive for a man to marry a widow or divorcee?), of disputed value, but generally considered not worth very much.

According to Sephardi custom, there is an additional sum that the groom obligates himself to pay.  This latter sum is defined by the groom, and it could be very significant.

According to Ashkenazi custom, there is another sum that represents what the bride brings as a dowry, doubled by the groom, but which has been standardized at 200 (100 for a widow or divorcee) zequqim  - silver coins, also of a disputed value, but probably worth a lot, for which the groom takes responsibility.  In addition, the groom sometimes specifies a supplemental amount, which is typically significant, or he woudn't have bothered to add it in.  
Food, clothing, and sexual relations are also promised by the groom to the bride.  Again, the bride's obligation for sexual relations is not mentioned at all. But if she refuses, she is called a moredet (a rebellious wife), and it is grounds for divorce without having to pay the ketuba.  And here I use the word ketuba to mean a payment, rather than a contract.  You'll see that it is the common use of the word in the proceedings of the batei din (as it is in most halakhic discussion).

The reason I bothered to itemize these amounts is that the supplemental amount (or the second amount in the Sephardi custom) is one of the sources of questions that are raised if and when a woman wants to claim her ketuba. However, a look at this particular problem will be deferred to another post.

We will first look at some cases that will begin to shed light on when a woman is awarded her ketuba and when she is denied it, and on what basis the decision is made.  By looking at these cases, we can understand the value of a ketuba today, and how a woman could better protect her financial situation, in the event of either divorce or widwohood.

Case 838835/8 in the Tel Aviv beit din (pesak dated 24/1/2013 - all dates are dd/mm/yyyy)

The woman filed for divorce on 19/1/2012 (in every case I cite, pay attention to how much time has passed).  Interestingly, she filed suit for her ketuba even before that, on 14/9/2011.  But maybe this is because this is actually "round two".  The husband first filed for divorce on 11/1/2011, and he claimed that she was a rebellious wife (which would absolve him of paying the ketuba).

So what's the problem?  They both want to divorce!  Here is the situation:
בתיק הראשון התקיימו דיונים, ולמעשה הצדדים הגיעו בשלב מסוים להסכמה להתגרש, ואת שאלת תשלום הכתובה ע"י הבעל השאירו להכרעת ביה"ד שיפסוק לאחר הגט. לאחר מכן הבעל חזר בו מהסכמתו והודיע כי ללא ויתור של האשה על הכתובה לא יסכים להתגרש. לצורך כך משך הבעל את תביעת הגירושין.

In the first filing, there were hearings, and at a certain point the sides came to an agreement to divorce, but the question of payment of the ketuba by the husband was left to the decision of the beit din, which would rule about it following [giving] the get.  Afterwards, the husband reneged on his agreement, and informed that without the woman relinquishing the ketuba, he won't agree to divorce.  For that reason, the husband withdrew his divorce suit.

So the court needs to concern itself with the complaints of both sides.  If they would both agree to divorce, and the husband were willing to accept the decision of the beit din on payment of the ketuba, they would not have to bother with all the dirt that each spouse will claim against the other.  But since now only the wife wants the divorce, the beit din needs to concern itself with what the complaints are.

Maybe this is the juicy stuff that people like to read, but I want to limit the size of these posts, somehow!

So, in short, the husband claims: the wife refused to have sex with him, starting right after their small child was born, and also during the pregnancy, she refused; she has outbursts of anger, which were supposedly medically treated by a psychiatrist; she filed false complaints against him with the police, but after the last one he did not return home.  The woman's parents intervened and disturbed the shalom bayit.

The wife claims: until the birth of their child, everything was fine.  But then after the birth he forced her to have sex three times. He also had sex with her when she was nidda.  The husband asked to have sex together with her and another woman.  He cursed her, hit her, slapped her, and kicked her.  That's why she complained to the police, who put a restraining order on him for a week.  She never went to a psychiatrist or psychologist and did not have any medication, but rather they went for some kind of counseling.  The husband's parents said she should be a sex slave for her husband.

This was all at the first time around, before the husband reneged on his agreement to divorce.  The second time around, when the woman filed for divorce, she made new claims.

She claimed that the husband was having an affair and also sexual relations with even a different woman, and that's why she wants a divorce and payment of the ketuba.

The husband claims he wanted to reconcile, but the wife refused and chased him out of the house.  So, once again, he'll agree to the divorce if he doesn't have to pay the ketuba.  He admits that he has a girlfriend, a divorcee, with whom he has sexual relations and that they live in Bat Yam.  He admits that he had a prior girlfriend (also a divorcee), and that he had sexual relations with her after he left his wife.

Now, here is an important point in determining the status of the ketuba:
ב"כ הבעל בקש להביא ראיות שבני הזוג הלכו לשני יועצים, גמרו בדעתם להתגרש ושנגמרה מערכת הנישואין ביניהם, ולכן הבעל לא יחשב כרועה זונות. לשם כך ביקש מועד לדיון להביא עדים.

The husband's attorney requested to bring evidence that the couple went to two counselors, were final in their decision to divorce, and that the marriage is over, and therefore the husband should not be considered as someone who "sleeps around" [רועה זונות does not necessarily mean that he goes to prostitutes, per se.]  For this purpose he [the attorney] requested to set a date to bring witnesses.

This is an important point, because if the beit din would determine that he is someone who "sleeps around", then she has justification to receive the ketuba. But if he is not so vile as that, then perhaps his claims against her will be sufficient for the beit din to determine that he does not have to pay her ketuba, because she is at fault.  As we can see here, the divorce is no-fault only if both sides agree to divorce and to settle their finances, because then the beit din really doesn't care that much who is at fault.  Otherwise, it is all about showing who is at fault.

So, the husband's lawyer brought a social worker as a witness, who testified that she had thirteen meetings, either with both of them together or with one of them, and to put what she concluded in a very few words, the marriage ain't no good.

And here is what the beit din concluded:
לאור הודאתו של הבעל שגר יחדיו עם אשה ומקיים אתה יחסים, לפני כן קיים יחסים עם אחרת על פי הודאתו – הלכה פסוקה באהע"ז סימן קנ"ד סעיף א' בהג"ה דינו של הבעל כדין רועה זונות שכופין לגרש.
טענות הבעל הוכחשו ע"י האשה בתיק שסגר הבעל וכן בתיק שהאשה פתחה לגירושין. נשמעה עדותה של העו"ס שקיימה עם בני הזוג שלוש עשרה פגישות ודיווחה על אלימות הדדית וריבים משותפים. גם אם נצא מתוך הנחה שכל התלונות של האשה היו לשווא אין בכך לומר שהאשה הפסידה כתובתה.

In light of the husband's admission that he lives with a woman and has sexual relations with her, and before that he had sexual relations with a different woman according to his own admission - according to the Shulhan Arukh (Even HaEzer 154,1, in the addenda of Rem"a) it is the halakha that the law for a husband who sleeps around is forced to divorce [his wife].  The husband's claims were denied by the woman in the [first] filing, which the husband closed, and [they were] also [denied] in the [second] suit for divorce that the woman started.  The social worker's testimony was heard, that she had thirteen meetings with the husband and wife, and she reported on violence and arguments from both parties.  Even if all of the complaints that the woman made [to the police] were false, this would not mean to say that she lost her ketuba.

Just a note on the Rem"a's ruling.  That paragraph cited from the Shulhan Arukh lists the situations in which the beit din would force (somewhere down the road, the term "force" כופין will be clarified) a man to give a get.  The Rem"a adds a few more, and generally there is a source for them, indicated in a note.  For this situation - the guy who "sleeps around" - the Rem"a states that there has to be testimony or self-admission (as in our case at hand), but there is no note to indicate the source of this ruling.

So far, so good, you might say.  She will get her divorce and the beit din will instruct him to pay the ketuba!  Don't open the champagne, yet.  Wait for the next post to see what problems are yet in store.

No comments:

Post a Comment

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.