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.

The ketuba, asmakhta, and the Merchant of Venice

At most Orthodox weddings (and many Conservative ones), between the qiddushin, which is actually the betrothal - when the groom gives the bride the ring - and the nissuin, the marriage itself, the ketuba is read.  (Once upon a time there was a real time lapse, like a year, between qiddushin and nissuin.) Most people are fairly bored, because they've heard it before and they didn't understand it then, and they don't understand it now either.  But then the reader gets to the point where the amounts of money are read.  

Have you ever been to a wedding where the reader says that the groom promises some huge amount (this is the tosefet ketuba, in addition to the base amount), like one million shekels, and everyone who was paying attention at all and understands the Hebrew (the amount is in Hebrew and not Aramaic) goes psssss!  Wow!  They are so impressed!  How romantic!  He must really love her to promise so much money!  He must think she is worth everything in the world!  I'm not sure, actually, what people are thinking (you can tell me in the comments), but I sure get the impression that they think it is romantic.

Well, in the event that the wife is widowed, say when the couple is married 75 happy years, a lot of money might really be important (assuming for the moment, that they are operating under Jewish law, and there is no inheritance for her - you do know that under Jewish law, a wife doesn't inherit her husband, but a husband does inherit his wife?)

But clearly I must have an agenda here.  There must be a problem, if I'm bringing up the subject of exorbitant ketubot.  And, yes, there is.  It is a problem of asmakhta.  And that's where the Merchant of Venice comes in.
Act I Scene III

Shylock            This kindness will I show.
Go with me to a notary, seal me there
Your single bond; and, in a merry sport,
If you repay me not on such a day,
In such a place, such sum or sums as are
Express'd in the condition, let the forfeit
Be nominated for an equal pound
Of your fair flesh, to be cut off and taken
In what part of your body pleaseth me.

Antonio            Content, i' faith: I'll seal to such a bond
And say there is much kindness in the Jew.

Bassanio     You shall not seal to such a bond for me:
I'll rather dwell in my necessity.

Antonio            Why, fear not, man; I will not forfeit it:
Within these two months, that's a month before
This bond expires, I do expect return
Of thrice three times the value of this bond.

But Antonio’s ships are lost at sea.  He writes to Bassanio:  

“Sweet Bassanio, my ships have all miscarried, my creditors grow cruel, my estate is very low, my bond to the Jew is forfeit.”

Act III Scene III

Salarino           I am sure the duke

                        Will never grant this forfeiture to hold.

Antonio           The duke cannot deny the course of law:

For the commodity that strangers have

With us in Venice, if it be denied,

Will much impeach the justice of his state;

Since that the trade and profit of the city

                        Consisteth of all nations.

Indeed, Antonio is correct – the duke will not set a legal precedent and nullify the contract.  The duke refers the case to a lawyer, Balthazar, who is actually Portia in disguise.  She couldn’t agree with Antonio more:

Act IV Scene I

Bassanio          … And, I beseech you, 

Wrest once the law to your authority: 

To do a great right, do a little wrong, 

And curb this cruel devil of his will.

Portia              It must not be. There is no power in

Venice

Can alter a decree established: 

’T will be recorded for a precedent, 

And many an error by the same example 

                        Will rush into the state. It cannot be.

If this case were to come before a beit din rather than the duke of Venice and Venetian law, this surely would be a case of asmakhta.  Antonio had every confidence that he would be able to pay the bond.  In no way did he seriously consider that his flesh would be cut out.

Rashba"m defines asmakhta as follows (Bava Batra 168a at the incipit asmakhta - in Bava Batra, the commentary that appears where Rashi’s commentary usually appears in the printed editions of the Talmud is in fact Rashba”m’s commentary):

רשב"ם בבא בתרא קס"ח א

אסמכתא - המבטיח לחבירו דבר על מנת שיעשה דבר לעתיד וסומך בלבו בשעת התנאי שיוכל לקיים הדבר כשיגיע זמן וכשיגיע הזמן יאנס ולא יוכל לקיים.

[A situation where someone] promises his fellow [to pay or forfeit] something unless he performs some act in the future.  He relies on his assumption, made at the time of agreement to the condition, that he will be able to perform the act, but due to unforeseen and uncontrollable circumstances at the time by which he must perform it, he could not uphold the promised action.

Now consider the following case (588903/1; pesak dated 10 April 2013) before a beit din  (Haifa) regarding a large sum in a ketuba.  I won't go into the details of the marital problems.  The husband is the one who first opened the case, with the wife first refusing, and requesting shalom bayit (reconciliation).  At some point, though, the husband said "shalom, bayit" (farewell, home) and the wife agreed to be divorced (each accusing the other of all sorts of nasty behavior).  Here is a summarizing paragraph from the pesak:

במקרה שלפנינו הבעל תובע גירושין. האישה בתחילה בקשה שלום בית אולם בסופו של דבר הסכימה להתגרש. לכאורה, בעל המבקש לגרש את אשתו חייב בכתובתה, אלא אם יוכיח שאינה זכאית לכתובה. בנדון זה אין לבעל עילה לגירושין. טענותיו לחוסר התאמה אינן פוטרות מכתובה, את טענתו בדבר הרומן עם גיסו לא הוכיח, וגם בשאר טענותיו – בדבר התכתבויות בפייסבוק – אין ממש.

In the case before us, the husband sues for divorce.  At first, the wife asked for reconciliation, but she did eventually agree to divorce.  A husband who requests to divorce his wife is obligated to pay her ketuba, unless he can prove that she is not entitled to it [because of wrongdoing on her part - remember, it is NOT "no-fault" divorce].  In this case, the husband has no grounds for divorce.  His claim of "incompatibility" does not absolve him from [paying] the ketuba; the claim of an affair [between his wife and] his brother-in-law was not proven; nor did any of his other claims - correspondence [with men] on Facebook - have substance.

The husband also made various claims about illnesses, such as epilepsy, that the wife has.  (For example, some illnesses might be considered a case of mekah ta'ut - an acquisition under false pretenses.)  Summarizing the ruling of the beit din on these claims: none of them are justification for her to lose her ketuba, with reference to the relevant paragraph in the Shulhan Arukh.

נמצא שלבעל אין עילה לגירושין, והואיל והוא חפץ בגירושין הרי שהוא חייב בכתובה.

It is determined that the husband has no grounds for divorce, and since he is the one who wants the divorce, he is obligated [to pay] the ketuba.

Before we continue with the problem presented in this decision, I want to emphasize the nature of the "yes-fault" divorce and the asymmetry of the way it works (sometimes to the disadvantage of the wife and sometimes to the disadvantage of the husband).  If the husband sues for divorce, and the wife relents, he has to prove grounds for divorce to be absolved from paying the ketuba.  If the wife sues for divorce and the husband relents, she has to prove grounds for divorce to be able to collect her ketuba.  The result of this approach is a string of nasty allegations thrown around on both sides, sometimes polygraph tests (if both parties agree to use them to back up their claims - perhaps in a later post I'll bring some example of that), private investigators - in short, lots of dirt made public, often rather fictitious dirt. There has to be a better way!

But, as stated, in this case the beit din ruled that the husband must pay the ketuba, so what is the problem?

סכום הכתובה בנדון זה הוא מיליון ₪. ידועה מחלוקת הדיינים אם כתובה בסך הנ"ל היא בגדר אסמכתא ואין לחייב את הבעל בכל סך הכתובה או שכתובה בסך הנ"ל אינה אסמכתא והבעל חייב בכל סכום הכתובה.

The amount of the ketuba in our case is one million shekels.  It is a known dispute among dayyanim whether such a [large] sum is a case of asmakhta, in which case the husband should not be obligated to pay the whole sum of the ketuba, or a ketuba with such a sum is not asmakhta, and the husband has to pay the whole sum of the ketuba.

The pesak then proceeds to present the two opposing opinions, each in the name of a very senior, very well-respected dayyan, and each with some of the halakhic arguments of the respective "camp".  The problem is not just that there has been a dispute about this issue in the past halakhic discourse.  If the rabbinate had chosen one, consistent approach to dealing with such problems, then the batei din would have to rule accordingly.  But they didn't.  And so it ends up left to each beit din to rule as it sees fit.

According to the opinion cited which claims it is askmakhta, the amount of the ketuba should be between 100,000 NIS and 120,000 NIS - the amount required to support someone for a year, to be consistent with the opinion that the 200 zuz (see the post about the Value of the Ketuba Part I) was meant to be maintenance for a year.  It is true, according to this opinion, that theoretically any additional amount could be valid, if the commitment was not made under pressure, if it was not done to impress those present at the wedding, etc. Further, the Israeli law that divides property (refer to the Value of the Ketuba Part II) must be taken into consideration (there also might be no property to divide).  But according to this opinion, the groom is under pressure and is out to make an impression.  Therefore, according to the dayyan who maintains this opinion, only the basic amount of a ketuba (the 100,000 NIS to 120,000 NIS) should be paid.

The opposing opinion - that the exorbitant ketuba is not a case of asmakhta - claims that a kinyan (acquisition) is made and it is stated clearly in the ketuba that the the groom recognizes that it is not asmakhta.   (In halakhic reality, such a statement on a contract does not mean that asmakhta is ruled out.) According to this opinion, the groom knows very well what he is agreeing to. If the amount is attainable during the lifetime of the husband (if he can't pay it all at once, he owes the balance and should pay it when he has it), then it is not askmakhta.  A million shekels is an attainable amount.
The av beit din (head of the beit din) writes:

לדעתי, יש היגיון בסברא לומר שחתן הכותב כתובה מוגזמת כוונתו להרשים את הנוכחים בחתונה או שמרגיש אי נעימות לכתוב סכום נמוך, ובנוסף אין החתן מרגיש שהתחייבות זו היא מחייבת – הואיל וזה עתה נושא אישה אין הוא חושב על גירושין ואינו מאמין שהתחייבות זו תבוא לידי ביצוע.

In my opinion, it is reasonable to say that a groom who writes an exaggerated ketuba [sum] intends to impress those present at the wedding, or that he feels uncomfortable writing a small amount, and in addition, the groom does not feel that this obligation is [actually] incumbent upon him - considering that he is presently marrying a woman and he does not think about divorce and he does not believe that this obligation will come to pass [but he should realize that it is very feasible that he will leave his wife a widow - the ketuba is supposed to be for that, too! - DK].

He therefore concludes that it is asmakhta.  He adds that according to the other opinion - that it it not asmakhta, this is so only if the amount is attainable by the husband.  In this case, the wife even agreed to settle for half the amount, 500,000 NIS, suggesting that she realizes that the whole amount is not feasible.  This husband will never be able to attain even the 500,000 NIS amount; forget the one million shekels!  (He is not a big earner, you must gather from this.)  Their jointly-owned apartment in Haifa is not worth the half million.  The husband is a man in his thirties, and not particularly well-off. Since the woman agreed that the beit din could use its judgment to decide on the amount of the ketuba, and because there is no other joint property to divide under Israeli law, the beit din set the amount he should pay at 200,000 NIS.  The other two dayyanim concur.

Is this fair? Well, one could say that since he wants the divorce, he should pay. But if it were the other way around, she wouldn't have to pay!  She'd probably have to give up her ketuba, but she wouldn't  have to shell out anything.

I have several conclusions that I make from all of this:

1) The ketuba is part of a halakhic system that is based on a model of marriage that is no longer relevant for most couples today.  If a marriage is dissolved, whether by divorce or death, property distribution should be based on a more equitable system of law - be it an overhauled Jewish law (not very likely) or a civil system.  If a couple wants to be sure to have a more equitable distribution of property, in the event that the marriage is not a success, they would be best to have a financial prenuptial agreement (and proper, equitable wills for successful marriages!!), and in that agreement, the wife should agree that she waives collection of her ketuba.  

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?

3) What about those kalla teachers?  Instead of feeding brides a lot of medieval drivel about her responsibilities to please her husband, how about if they would explain to the bride the meaning of the ketuba and the complications that can arise? 

The topic of my next post: Understanding a system that has no alimony.

We interrupt the discussion of the ketuba for this case, just received – a sarvan get finally relents

I'll start out with the "happy end", dated today, May 8, 2013, and then we'll see if you think it is really that.

לאחר מתן ההחלטה מתאריך כ"ו באייר תשע"ג (6.5.2013) הגט סודר ונמסר כדמו"י בו ביום.

After issuance of the decision from May 6, 2013, the get was arranged "according to the laws of Moshe and Israel" on that same day.

What got this guy to give the get, and after how much time?  Here is the decision (loosely translated) from May 6th (Haifa):

א.       בית הדין ניסה רבות לעשות בתיק זה כדי להביא את הצדדים לידי פשרה, אולם ללא הצלחה.

ב.      בית הדין סבור כי יש להמשיך במאמצים כדי לשכנע את הבעל לתת גט מרצון, ולצורך כך בית הדין מזמן את הבעל למחר יום שלישי כ"ז באייר תשע"ג 7.5.2013 בשעה 8.30 בבוקר, ואם ניסיונות השכנוע לא יצלחו, הרי הבעל יתייצב כאן בכל בוקר בשעה 8.30 לדיון בפני בית הדין.

ג.       בשלב זה האשה אינה צריכה להתייצב, אולם עליה להשאיר במזכירות בית הדין פרטי התקשרות עמה, למקרה בו ייאות הבעל לתת גט – או אז היא תוזמן מידית.

ד.      הבעל הצהיר לפני בית הדין כי אין בדעתו להתייצב מחר, לאור ההתחייבויות שיש לו כלפי לקוחותיו במשרד, במקצועו כעורך דין. ראשית, בית הדין סבור כי התרת אשתו מעגינותה הנמשכת קרוב לעשור, קודמת לכל התחייבות אחרת, ושנית על הבעל להבין כי חסד נעשה עמו באשר אחד הצעדים הבאים יכול שיהיו כדוגמת שלילת רישיונו בעיסוקו במקצוע עריכת הדין, על פי חוק בתי דין רבניים (קיום פסקי דין של גירושין) התשנ"ה–1995, ולכן ביטול פגישות עם לקוחות, היא פגיעה פחותה מכל אפשרות אחרת.

ה.      אולם, לאור הצהרת הבעל כאמור, ולשם הבטחת הופעתו, בית הדין אינו רואה ממנוס, מהזמנתו בצו הבאה ע"י משטרת ישראל.

ו.        יחד עם זאת, ניתן יהיה להמיר את צו ההבאה בהפקדת מזומן בסך 150,000 ₪ כערובה להתייצבות הבעל מחר ובכל יום אחר שהוא יוזמן אליו על פי החלטת בית הדין.

על משטרת ישראל להביא את הבעל מחר לדיון כאמור בסעיף ב', ואין לשחררו ללא אישור מפורש מבית הדין.

ניתן ביום כ"ו באייר התשע"ג (06/05/2013) .

1. The beit din has tried extensively to bring the sides to a compromise, with no success.
2. The beit din maintains that it should continue efforts to convince the husband to give the get willingly, and for this purpose, he is requested to appear tomorrow at 8:30 am, and if the efforts to convince him do not succeed, he must appear every morning at 8:30 am, for a hearing before the beit din.
3. At this stage, the wife does not need to appear, but she must leave contact information with the secretary, in case the husband sees fit to give the get, and then she will be requested to come immediately.
4. The husband declared that he has no intention of appearing, because of his commitments to his clients in his office; professionally he is an attorney.  First of all, the beit din maintains that releasing his wife from being an aguna [yes! they use this term - see my introductory post on this matter], which has dragged on for almost a decade [my emphasis], takes precedence over all other obligations.  Second of all, the husband must understand that this is a favor that is being done for him [to order him to appear before the beit din to try to resolve the matter] because one of the next steps might be such as invalidating his license to practice law, according to the 1995 law for batei din, and therefore cancelling appointments is the lesser damage than other options.
5. But, considering the husband's declaration [that he will not appear], and in order to insure his appearance, the beit din sees no alternative but to request his appearance with an order of a police escort.
6. In place of the police escort, the husband can deposit 150,000 NIS in escrow, to be certain that he appears tomorrow and any other day that he is requested by the beit din to appear.

The police must bring him tomorrow, as instructed in paragraph 2, and should not release him without specific instructions from the beit din.

OK.  So the husband was convinced that the beit din means business.  I am sincerely happy for the woman, who was finally released from bondage.  She has reason to celebrate.  But why did it take almost ten years for this to happen?  And what if he is the type of lawyer for whom 150,000 NIS is pocket change?  (There are lawyers like that.)  Then how much longer would it drag on? 

That's why I don't think the rest of us have any cause to celebrate - not those of us who believe that freedom of choice - to whom we are married and if we want to stay married - is a basic human right. Not for those of us who believe that a halakhic system has to be just and moral.  Otherwise, it should be scrapped, here and now.

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?

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.