Update 9/3/13 Purpose of kesuba is not financial security
In the various discussions about divorce - it has been repeatedly said that anyone who gets more than the Torah prescribes is a thief. According to the Talmudic law a wife is entitled only to get her Kesuba and assets she brought into the marriage. Thus it is claimed that if the wife ends up being given various additional payments such child maintenance or division of assets, it is claimed that this is against Jewish law and show a clear influence of feminist agenda. (But it isn't so simple.)
In the various discussions about divorce - it has been repeatedly said that anyone who gets more than the Torah prescribes is a thief. According to the Talmudic law a wife is entitled only to get her Kesuba and assets she brought into the marriage. Thus it is claimed that if the wife ends up being given various additional payments such child maintenance or division of assets, it is claimed that this is against Jewish law and show a clear influence of feminist agenda. (But it isn't so simple.)
I am now reading Justice Menachem Elon's "The Status of Women" where he discusses the issue of marriage settlement (pitzuim) in Israel developed in Israeli in the 1940's, the wife inheriting the husband, and daughter inheriting her father. The legitimacy of the payments decreed by the rabbanut was a point of strong contention between Rav Eliashiv and Rav Karelitz - and obviously others. I also want to discuss the machlokes between Rabbeinu Tam and other Rishonim as to whether post talmudic authorities have the right to modify Talmuidic laws regarding marriage and divorce e.g., get me'usa.
This is also related to the question of whether a husband can legally and morally use his right to grant the divorce in order to pressure his wife for large sums of money and/or favorable custody rights. Likewise can a wife use her right to refuse a get to pressure her husband for large sums of money and/or favorable custody rights.
In sum, I want to clarify what exactly is the halacha according to the Talmud in these areas and what subsequent takkanos were made concerning these matters. I want to explore also the power of post-Talmudic rabbonim to change Talmudic halacha. Finally even if it is one's legal right to use a get as leverage - is it moral.
Update: Divorce payments follow local minhag - do decrees of the rabbanut determine minhag?
update From the Principles of Jewish Law by Menachem Elon page 423Update: Divorce payments follow local minhag - do decrees of the rabbanut determine minhag?
שולחן ערוך (אבן העזר הלכות כתובות סימן סו יא) ץ
הנושא אשה, סתם, כותב לפי המנהג. וכן היא שפסקה להכניס, נותנת כפי מנהג המדינה. הגה: ומה שהאשה מכנסת לבעלה, הן מעות הן בגדים, ומקבלן עליו והן באחריותו נקרא נדוניא בכל מקום, ואינה נגבית אלא עם הכתובה; אבל לשאר דברים אין דינו ככתובה, וכמו שיתבאר לקמן. ויש מקומות שהחתן מוסיף לה בנדונייתא, וכותב יותר ממה שקבל, והולכין בזה אחר המנהג (כל הנ"ל בטור). ומן הסתם אחריות הנדוניא עליו כנכסי צאן ברזל, אבל אם ירצה להניח לה ברשותה ושלא לקבל אחריות עליהם, הרשות בידו. וע"ל ריש סי' צ"ג וק' עוד מאלו הדינים. כשהאב קיים ומשיא בתו, כותבים: ודין הנדוניא דהנעלת ליה מבי אביה; וכשאין האב קיים, כותבין: מבי נשא (מרדכי פרק ב"מ בשם ר"ת). מיהו אם שינה, לית לן בה (תשובת ר"ש משנץ). בכתובת גרושה כותבין: מתרכתא, כדי שידעו שהיא גרושה ואסורה לכהנים (פסקי מהרא"י סימן נ'). וכשבאה לגבות כתובתה, מגבין לה מה שבכתובתה לפי מנהג המדינה. הגה: ואם היא אומרת שהוסיף לה יותר מן המנהג, צריכה להביא ראייה לדבריה; אבל אם יש בידה שטר כתובה שאינו מקוים, או שאחד מן העדים הוא פסול, אף על פי שמראה התנאים שביניהם שהוצרך להוסיף לה, אינה גובאת אלא כמנהג. (פסקי מהרא"י סימן פ"ט). וע"ל סי' ק' סעיף ה'. ובכל אלו הדברים וכיוצא בהן, מנהג המדינה הוא עיקר, ועל פיו דנין, והוא שיהיה אותו המנהג פשוט בכל המדינה. הגה: מיהו אם רוצה להתנות ולפחות לאשתו מן המנהג, הרשות בידו (מהרי"ל סימן ע"ו), ובלבד שלא יפחות ממה שתקנו רבנן. ונראה לי דוקא שהתנה כן בשעה שעשה השידוכים, אבל אם עשו שידוכים סתם, ושעבדו עצמן בקנסות, צריך לכתוב לפי המנהג ולא יוכל לשנות (דברי הרב וכן משמע במהרי"ל). ויש מקומות שנוהגים לכתוב כל הכתובות בשוה, אפילו לא הכניסה לו כלום, ואם ירצה מוסיף לה, ואם ירצה לפחות לה היא כותבת לו: כך וכך קבלתי על כתובתי; וכן נוהגין במדינות אלו.
In the State of Israel. In terms of the Rabbinical Courts Juridiction (Marriage and Divorce) Law, 5713 -1953, matters of marriage and divorce between Jews, citizens or residents of the state, fall within the exclusive jurisdiction of the rabbinical courts, which jurisdiction extends to any matter connected with the suit for divorce, including main tenance for the wife and for the children of the couple (sec. 3(1 )). Divorce for Jews is performed in accordance with Jewish law (sec. 2). In applying the halakhah the rabbinical courts have introduced an important innovation, namely the award of monetary compensation to a wife who is being divorced; this is done even when the divorce is not specifically attributable to the fault of the husband, but the court, after close scru tiny of all the facts, is persuaded that the situation prevailing between the parties does not, objectively speaking, allow for the continuation of their marriage. In this event, the court, upon the husband's demand that his wife be obliged to accept a get, will customarily oblige the former to pay a monetary or equivalent compensation to his wife - in addition to her ketubbah - in return for her willingness to accpet the get (OPO 51-55; POR 1:137). The extent of the compensation is determined by the court, having regard to all the circumstances, including the financial position of the parties and their respective contributions to the state of their assets.
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update 9/2/2013 From השקדן (biography of Rav Eliashiv page 167-168): Regarding the differing views of Rav Shlomo Karelitz and Rav Eliashiv regarding post talmudic decrees. Rav Karelitz viewed them as non-existent and if it required a payment of money he viewed it as theft. Rav Eliashiv viewed them as binding.
מענין לענין - על חילוקי דעות משמעותיים ועקרוניים בין הגרי"ש [אלישיב]
להגרשש"ק[רליץ] - שניתן ללמוד מהם על הבדלי גישותיהם, ואשר כמובן לא העיבו במאומה על הידידות וההערכה ההדדית שהיתה כולה
בתורה:
הרה"ר (בשנים מוקדמות) קבעה תוספת על חיוב אב במזונות בניו
הקטנים, שעל פי הדין אין לאב חיוב מעל גיל
וי שנים, כי אם מדין צדקה. (דהיינו שאם האב
במצב שאין להטיל עליו חיוב לתת צדקה, אין חוב המזונות של ילדיו הגדולים עליו). התקנה הכללית שניתנה לכלל בתי
הדין בארץ ישראל היתה שהחיוב הבסיסי (ולא
כדין צדקה) יעמוד בעינו עד גיל ט"ו.
בבדיקה מעמיקה ועקבית של פסקי דיני בתי הדין הרבים שהתפרסמו בספרי הפד"ר ועוד, נמצא הבדל מהותי וחד
משמעי בין אלו שנידונו ונפסקו בהרכב
שהשתתף בו הגרי"ש, ובין אלו מהרכב שבהשתתפות הגרשש"ק. בעוד לדעת הגרי"ש התקנה הזו תקפה לחלוטין, וכך
פסק לאורך כל השנים; נראה כי לפי
הגרשש"ק לא חל שום שינוי כלשהו מההלכה הכתובה בשו"ע, והוא מתעלם מהתקנה כלא היתה.
ומענין זה לענין נוסף אך דומה.
בתי הדין הנהיגו להטיל את שיעור חיובי האב לזון את בניו על פי מדידת
עושרו. (לא נמצאה כזו תקנה מפורשת, וכנראה זה השרשת בבתי הדין בתקופה מאוחרת, אולי
בהשפעת עקרון הפסיקה של בתי השמפט החילוניים בנושא זה ).
על זה מתבטא הקרש"ש קרליץ (במכתב תורני לגרש"ב ורנר) נדפס ב"משפטי
שלמה" חלק ב':
"... הרי אשר לפי זה אין מקום לכאורה לחייב את האב במזונות
בניו כדי מחסורו כו' מדין
צדקה, מאחר שחיובו של ביה"ד היא כפיה גמורה להוציא ממון ממנו ...
לפי דעתי הוא חשש גזילה ואין ראיה ממה שיש בתי דין כאלה שמחייבים...
וכמו שראיתי מודפס בפסקי הדין שבתי הדין נוהגים לפסוק פצויים לאשה
כשמתגרשת וכמובן אף בסירובו של הבעל לתת ולדעתי זה גזילה גמורה..."
In contrast Rav Eliashiv view regarding the binding nature of post Talmudic decrees is cited in the psak below Psak regarding pitzuim - Rav Eliashiv's view
==========================
וכן לא מצאנו שבתי דין אחרים בארץ ובחו"ל שאינם שייכים למערכת בתי הדין הרבניים מחייבים פיצויי גירושין, שיסודם ממון. כך שניתן לומר שמנהג זו אינו פשוט בין כל הדיינים, אדרבא רובם של הדיינים לא מתנהגים ליתן פיצויים לאשה בעת גרושיה, שתובעת אותם על יסוד טענות לזכויות ממוניות, על כן אין במנהג זה כח ליצור חיוב על בעל ליתן פיצויים וצריך לדון בתביעת פיצויים אלו על פי הדין.
פניתי לכבוד מרן הגאון הרב י.ש. אלישיב שליט"א לשמוע דעתו ביחס לפיצוי גרושין והשיב לי, שכאשר מדובר בפיצויים שמטרתם להביא את האשה להסכים להתגרש יש מקום לנהוג לחייב הבעל ליתן לאשה בנוסף לכתובתה תוספת כפיצויים [זה מתאים לסוג א' של פיצויי גרושין כפי שנבאר לעיל] אולם תביעת פיצוים המתבססת על זכויות ממוניות הקשורות לתרומתה של האשה לממון ורכוש הבעל בחיים המשותפים [זה מתאים לסוג ב' של פיצויים בשעת גרושין כפי שנבאר לעיל] קבע מרן שליט"א שאין לנהוג כך בבית הדין לחייב הבעל בתביעת פיצויים מסוג זה.
עמדה זו משתקפת מכמה פסקי דין של ביה"ד הגדול שכבוד מרן הרב שליט"א היה יו"ר ההרכב או חבר בהרכב [עיין פד"ר ח"ו, ע' 257 פד"ר ח"ז ע' 111, פד"ר ח"ח ע' 36 פד"ר ח"ט ע' 65].
פניתי לכבוד מרן הגאון הרב י.ש. אלישיב שליט"א לשמוע דעתו ביחס לפיצוי גרושין והשיב לי, שכאשר מדובר בפיצויים שמטרתם להביא את האשה להסכים להתגרש יש מקום לנהוג לחייב הבעל ליתן לאשה בנוסף לכתובתה תוספת כפיצויים [זה מתאים לסוג א' של פיצויי גרושין כפי שנבאר לעיל] אולם תביעת פיצוים המתבססת על זכויות ממוניות הקשורות לתרומתה של האשה לממון ורכוש הבעל בחיים המשותפים [זה מתאים לסוג ב' של פיצויים בשעת גרושין כפי שנבאר לעיל] קבע מרן שליט"א שאין לנהוג כך בבית הדין לחייב הבעל בתביעת פיצויים מסוג זה.
עמדה זו משתקפת מכמה פסקי דין של ביה"ד הגדול שכבוד מרן הרב שליט"א היה יו"ר ההרכב או חבר בהרכב [עיין פד"ר ח"ו, ע' 257 פד"ר ח"ז ע' 111, פד"ר ח"ח ע' 36 פד"ר ח"ט ע' 65].
[to be continued]
Israeli judge orders brother to pay divorce settlement
Israeli judge orders wife to pay for refusing to accept get
One point to bear in mind regarding this discussion is that whatever the disagreement between Rav Eliashev and Rav Karelitz is, they are arguing whether the rabbonim can today enact decrees modifying the Torah Law specifying the ownership and distribution of assets post-divorce. What they both agree on is that in the absence of a rabbobim-declared decree on this matter, Torah Law rules. And Torah Law is that the husband owns all marital assets (including his wife's earned income during the marriage) except whatever assets she brought into the marriage, having owned prior to marriage. Plus he must pay her the one-time kesuba payment.
ReplyDeleteTherefore everyone, including both Rav Eliashev and Rav Karelitz, agree that if a wife takes advantage of a secular-law, such as American Law or Israeli-law, that gives "equitable" (50/50) distribution of marital assets -- or for that matter any distribution of assets different than Halacha -- she is forbidden from taking advantage of those secular laws instituted by the gentiles running the legislatures that passed those laws. And she must only demand or accept at maximum the assets that Halacha grants her.
And if she violates this principle and law, she is a thief. And the husband may take action to recover the money or assets she has stolen from him through the secular divorce process and/or secular court system. This action may, potentially, include reasonably and halachicly denying her a "Get" until such time she ceases and desists from this thievery and returns and illicitly obtained money and assets she already obtained from her husband.
Furthermore, in addition to Jewish Law granting full ownership of the marital home and all bank accounts to the husband (save what she owned prior to marriage), Jewish Law also grants her no recurring or monthly or ongoing payments for alimony. Even if secular law grants her recurring alimony payments. Additionally even child support payments are something she cannot demand or accept. While a father does have certain Torah Law obligations to support his children up to a certain age (age 7 or 13?), his obligation is directly towards his children. Not towards their mother. So under Torah Law he may choose to directly support them however he decides. He might decide to directly pay their needs. Or give the money to the child. Or purchase all their necessities and provide it to his children rather than make an outlay of money for them. The choice remains his. And all this child support can only directly support the child, not their mother/ex-wife. And the amount of support he is obligated to make towards his children is determined by Halacha and a Beis Din not by a secular court.
Thank you for a lengthy post which only serves to underscore the affliction of 'mental constipation' that RDE quoted a few days ago.
DeleteAnd for the record, I'm a man whose wife is clearly intent on גזילה during our divorce. Yet, I fail to see how leaving her nearly penniless -- as you claim the Torah wishes -- is good for the kids, good for society, or is in any way ישרות.
Ben Torah: Yasher Koach for a well explained Torah point of view.
DeleteDaniel your point is important. However has far as I know the Kesuba was not created by the rabbis as a safety net for the wife. It is a device whose sole purpose was to discourage divorce. Once the cherem of Rabbeinu Gershom was accepted there really is no need for a kesuba for that purpose since the wife can simply refuse to accept the get until she gets her demands met.
Deletesome quick points:
ReplyDelete1) Just like the government could tax you, or charge you a license fee etc., so too there is no reason the government can't say that the Husband should have to pay child support and give half of his assets to his wife. Remember, every year the government asks you for half your income as a tax. It is no different if they ask to give it to them or directly to the wife. They also charge all sorts of business license fees etc.
AZ
Incorrect. Halachic Dinei Mamonos take precedence over local non-Jewish laws.
DeleteIf the State Legislature passes a law that states that Reuven can seize and assume ownership of Shimon's automobile, Reuven is halachicly forbidden from doing so and is a thief if he does.
Halacha gives the specific right to government, both Jewish and gentile, to "tax" their residents where the money goes to the government treasury. This right is specific to taxes and does not include monetary matters between two Jews.
DeleteIt is the plain old issur of "arkoyos".
DeleteChaim,
DeleteIndeed. However in most cases where parties enter a financial agreement it is the terms of the agreement that govern and we do assume that common local practice and local law in the particular market place sets the context for interpreting an agreement. If one looks at the tshuvah literature in Choshen mishpat at least through the 18th century you see gedolei harabbonim saying that they asked merchants (or ship owners or whatever) what the standard practice is, even where there is a specific ruling in the gemara, because it is the former that governs when the agreement does not violate an issur.
In societies where the ketubah is negotiated between the parties, such as was the case in the times of Chazal and the rishonim, it makes sense to say that it governs the financial settlement in case of divorce. In communities where it is a fixed text and the amount of achrayos the husband accepts for the wife's assets as specified in the ketubah has no relation whatsoever to the assets the wife actually has, it is a stretch to say that that is what the parties intend. See the article by Rabbi Broyde that was linked to an earlier post.
Also I don't think that having the ketuba as the governing document is good for the Jewish family, as it would lead not only to protracted and often embarrassing negotiations over the ketuba and nedunya (see the time the Rem"a was mesader kiddushin on Shabbos when the relatives of an orphaned bride and the chasan dug in their heels over the dowry for an example of how unpleasant that can get)
but also to women (as the gemara says they may) keeping their earnings and forgoing support, and to wives' families giving gifts "on condition the your husband has no authority over them". Given the divorce rate and the fact that women usually contribute significantly to the family income, any woman who is not a fool would keep her assets out of the marital pot if all she would get on divorce is 200 silver pieces. It is worth remembering that Chaza"l instituted the ketubah as a protection for wives, not husbands.
שולחן ערוך אבן העזר הלכות כתובות סימן סו
Deleteסעיף יא
הנושא אשה, סתם, כותב לפי המנהג. וכן היא שפסקה להכניס, נותנת כפי מנהג המדינה. הגה: ומה שהאשה מכנסת לבעלה, הן מעות הן בגדים, ומקבלן עליו והן באחריותו נקרא נדוניא בכל מקום, ואינה נגבית אלא עם הכתובה; אבל לשאר דברים אין דינו ככתובה, וכמו שיתבאר לקמן. ויש מקומות שהחתן מוסיף לה בנדונייתא, וכותב יותר ממה שקבל, והולכין בזה אחר המנהג (כל הנ"ל בטור). ומן הסתם אחריות הנדוניא עליו כנכסי צאן ברזל, אבל אם ירצה להניח לה ברשותה ושלא לקבל אחריות עליהם, הרשות בידו. וע"ל ריש סי' צ"ג וק' עוד מאלו הדינים. כשהאב קיים ומשיא בתו, כותבים: ודין הנדוניא דהנעלת ליה מבי אביה; וכשאין האב קיים, כותבין: מבי נשא (מרדכי פרק ב"מ בשם ר"ת). מיהו אם שינה, לית לן בה (תשובת ר"ש משנץ). בכתובת גרושה כותבין: מתרכתא, כדי שידעו שהיא גרושה ואסורה לכהנים (פסקי מהרא"י סימן נ'). וכשבאה לגבות כתובתה, מגבין לה מה שבכתובתה לפי מנהג המדינה. הגה: ואם היא אומרת שהוסיף לה יותר מן המנהג, צריכה להביא ראייה לדבריה; אבל אם יש בידה שטר כתובה שאינו מקוים, או שאחד מן העדים הוא פסול, אף על פי שמראה התנאים שביניהם שהוצרך להוסיף לה, אינה גובאת אלא כמנהג. (פסקי מהרא"י סימן פ"ט). וע"ל סי' ק' סעיף ה'. ובכל אלו הדברים וכיוצא בהן, מנהג המדינה הוא עיקר, ועל פיו דנין, והוא שיהיה אותו המנהג פשוט בכל המדינה. הגה: מיהו אם רוצה להתנות ולפחות לאשתו מן המנהג, הרשות בידו (מהרי"ל סימן ע"ו), ובלבד שלא יפחות ממה שתקנו רבנן. ונראה לי דוקא שהתנה כן בשעה שעשה השידוכים, אבל אם עשו שידוכים סתם, ושעבדו עצמן בקנסות, צריך לכתוב לפי המנהג ולא יוכל לשנות (דברי הרב וכן משמע במהרי"ל). ויש מקומות שנוהגים לכתוב כל הכתובות בשוה, אפילו לא הכניסה לו כלום, ואם ירצה מוסיף לה, ואם ירצה לפחות לה היא כותבת לו: כך וכך קבלתי על כתובתי; וכן נוהגין במדינות אלו.
second point - Not sure why you are convinced that Chazal really contemplated that the Kesuba would be the maximum penalty - it is more likely the minimum penalty, and in each generation the government will enact laws. Do you really think that the Torah only contemplated a fine for a rapist. If King David was going to give a thief of the poor man's sheep death - he would surely give a rapist death. There is 2 separate things - the laws of the Torah and the additional laws that the Torah expects the government to institute to protect society which changes according to the needs of the generation. Those punishments were not prescribed by the Torah because they need to change according to the needs of the generation.
ReplyDeleteAZ
Incorrect. The kesuba is the exact amount that is due. It is neither a minimum nor a maximum.
DeleteUnlike rape, divorce is neither a sin nor unnecessary. Thus we have an entire mesechta in the gemora devoted to gittin.
You are also incorrect about added penalties for rape.
anyone can add to the ketuba.
DeleteBen: Before the marriage. Not at the time of divorce.
DeleteYou are disagreeing with Chazal. Chazal set the rules and regulations governing Jewish divorces. Between your point of view and Chazal's, my vote is to go with Chazal.
DeleteThe Chazal comment was intended for a different thread below.
Deletethird point - I believe there is a simple error in logic which appears often in your posts and in the comment section.
ReplyDeleteAlthough according to the Torah a woman cannot demand a get for no reason, for example claiming "he is dumb". In practice this isn't relevant. Because what happens in most of these agunah cases, is that it starts over something petty but then they fight and argue and the marriage is no longer viable - it is no longer relevant if it started over something petty. The point is - that at this point - he wants to be divorced as much as her - If you would put these agunah couples together they would probably literally kill each other. At this point she can demand a get because he also doesn't want to be married to her - he would probably strangle her if he got his hands on her! He just wants to not let her remarry - he is not interested in staying married.
AZ
Whether you or anyone else thinks that "the marriage is no longer viable" is irrelevant as long as the husband believes that the marriage IS viable. If he believes it is viable and wishes to maintain the marriage that is his legal right under Jewish law. In the absence of any actionable wrongness on his part towards his wife that she can satisfactorily demonstrate to beis din that entitles her to a Get, he has no obligation, legal, moral or ethical, to surrender his marriage.
DeleteMy point is that everyone agrees that in the vast majority of Agunah cases the husband does not think that the marriage is viable. He hates her to death - and it would probably be dangerous for them to be in the same room together. He would never really be willing to be married to her in any normal sense. He doesn't want to giver her a get - not because he wants her - but to take revenge on her.
DeleteTo be crystal clear - these famous Agunah cases are not scenarios where the husband has any interest in having anything to do with his spouse.
Daas Torah - if possible can you weigh in on my comments?
Thanks,
AZ
"I am now reading Justice Menachem Elon's "The Status of Women" where he discusses the issue of marriage settlement (pitzuim) in Israel developed in Israeli in the 1940's, the wife inheriting the husband, and daughter inheriting her father."
ReplyDeleteWhen and where were "pitzuim" issued by the rabbinical establishment in Palestine in the 1940's? Which rabbis issued them? Which communities accepted them? Were they ever accepted in any communities outside of Eretz Yisroel? Are they still accepted anywhere today?
Was there ever any change that a bchor inherits a double portion of his father's estate? Was there ever any change that a father is only inherited by his sons, not his daughters? A wife gets "maintenance" costs to help her live, she doesn't inherit her husband.
ReplyDeleteAs far as I know these halachic principles were never changed since they were incorporated into Shulchan Aruch and are still applicable today.
Where can we access Menachem Elon's Status of Women book/article?
ReplyDeleteRabbi Eidensohn - I would also be interested in hearing your view of Mishpat Ivri. I find tht recently I have been very impressed by books and articles that come under this category and that unfortunately they seem more sensible and legally accurate than a lot of purely rabbinic responsa.
It is a 490 page Hebrew book published by Hakibbutz Hameuchad in 2005
DeleteFull title is The Status of Women
Law and Judgement, Tradition and Transition
The Values of a Jewish and Democratic State
Regarding Mishpat Ivri - they definitely are easier to read and understand - but they have no authority.
The standard text of the tanaim states that the financial resources of the couple are shared 50/50. And it is signed by both parties. The woman enters the marriage assuming this agreement applies only to discover that the whole thing was a sham. The document she signed means nothing. Its not worth the paper its written on.
ReplyDeleteAnd the ketuba is worth even less. If very imaginable excuse can override the ketuba's obligation that a man must support his wife, etc, then it certainly does not need any more authority to append the financial penalties. But no, the abridgment of the husbands DEORAITA responsibilites are supported without protest, but an abridgment of his obligations is protested with moral outrage.
http://www.globes.co.il/news/article.aspx?did=1000682214
ReplyDeleteIsraeli judge order brother to pay divorce settlement
If the views of R' Elyashiv z'tl during his service as Dayan at the Rabbanut are considered, then you might think twice about him having been Haredi. Under Rav Herzog z'tl the young illui R' Elyashiv was very creative in halacha, setting free agunot etc.
ReplyDeleteEddie could you please cut out the stereotypic comments. "A real charedi is not creative in halacha and is not concerned about setting agunos free etc etc etc"
DeleteIs that the implication of my comment? Perhaps the comments about Heichal Shlomo made by R' Eliashiv at that period, being the first saplings of the Sanhedrin, whilst the Brisker Rav and Rav Shach put the same institution into Herem. It is not about stereo types, it is about a change of hashkafa.
DeleteActually, Rav Herzog had found some very creative devices to promote equality of inheritance for men and women, but this was opposed by the Chazon Ish. An interesting question would be whether the psak of Rav Eliyashiv at the rabbanut would be accepted by Haredi poskim today, or if they would only rely on his later psak. I don't see the problem in asking this question, or pointing out that there are differences in approach to halacha.
That is exactly the way it comes across. So you are telling me that you have discovered that chareidi poskim don't always agree - I am shocked! You have discovered that chareidi poskim's views changed of time - unimaginable! You find it troubling that views expressed 50 years ago might not be accepted today - incredible!
DeleteIf your point is asking questions or pointing out differences in approach - there is no problem. That is what this post is about. But you are taking a negative stereotypic view of chareidim as your focus. I simply pointed out in the post that there are two major approaches to new takanos that are not found in the Shulchan Aruch. Both views are chareidi and therefore the issue is not whether someone was once not a true chareidi but is now but rather the rationale behind each position.
Eddie: You are dead wrong. Rav Eliashev was not creative in his rabbunut days as you claim. He did not use any creativity in halacha to free agunos. You are referring to the Yemenite case where she wasn't really even married in the first place. That was standard old fashioned halacha, nothing creative or un-chareidi.
DeleteAZ where have you been. Mo'us olai is not according to rov poskim a reason for a bais din to be mechayev a get.
ReplyDelete"The point is - that at this point - he wants to be divorced as much as her - If you would put these agunah couples together they would probably literally kill each other. At this point she can demand a get because he also doesn't want to be married to her - he would probably strangle her if he got his hands on her! He just wants to not let her remarry - he is not interested in staying married."
The point is she cannot demand a Get whether you like it or not. Stop inventing halocho. Furthermore if she behaved in a fashion that was not moral such a preventing him access to the children, then you can't even try and claim that morally he should give her a Get. if she went to arko'oys let her sit until her hair turns white, that is the halocho. While today may be September 1, it is on April 1 that you can make such foolish assertions.
Just a thought. It seems to me that child support stands on a different footing than alimony and other payments to a divorcing spouse. Child support reflects an obligation to support one's children -- which it seems in the modern world has gone beyond what halacha requires. But these are not due to the wife per se, but from one parent to another, usually, but not always, from husband to ex-wife. There ARE cases (relatively uncommon) when this is ordered in reverse, from ex-wife to ex-husband (say he gets custody and she has a well-paying job), or even when a parent is ordered to pay support to an institution or relative who has custody of the child. And, of course, once the child grows up, the obligation to pay support ceases.
ReplyDeleteSo this part seems to me more like a takkanah to financially support one's child up to a certain age (paid through the custodial parent) than dividing marital assets.
So what exactly is the halakha here? Can a beis din order a parent to pay yeshiva tuition? To provide support for the basic needs of life (food, clothing, shelter)? Up till what age?
Halachicly one only needs to support his children until age 7. So beis din cannot halachicly order support after that age.
DeleteAnd even until the halachic age that support is required, the amount and type of support a father is required to provide is much less than secular law demands.
Beis din cannot order more than that. And to utilize secular court to obtain more than that is theft.
You have discovered that chareidi poskim's views changed of time - unimaginable!
ReplyDeleteIt is more complicated than that. rav elyashev was not accepted by the charedim when he was a dayan, He was sharply criticised by the brisker rov. and he felt isolated. rab elyashev moved rightwards or gave the impression of moving rightwards in his last 25 years. It is legitimate to discuss a connection between a change in halachik psak to a change to his view on zionism.
This comment is mostly fictional.
DeleteThis comment is mostly true.
Deleteperhaps dan you can elaborate a bit more
DeleteRav Eliashev was always accepted as a posek in the chareidi world. He was always on the right from the outset; he didn't move there later. He didn't change his halachic psaks. And he was always anti-zionists, as much as any Agudist.
DeleteDan's last comment is mostly fictional.
DeleteDan: Well put. Thank you.
DeleteStan wrote "Mo'us olai is not according to rov poskim a reason for a bais din to be mechayev a get."
ReplyDeleteHow is this similar to Mo'us Olai? In 50% of the cases, the husband was the first to want a divorce, he left her first, didn't want anything to do with her, he is insisting on a divorce, and wants to be divorced in every sense of the word - but doesn't want to give a get, because he hates her. She is not saying Mo'us Olai, he is the one saying Mo'us Olai!
AZ
AZ
One more point on this "Mo'us Olai" misconception:
ReplyDeleteThe whole concept of Mo'us Olai assumes that the woman is requesting a divorce and the husband doesn't want a divorce. Have you ever come across a case where the husband didn't also want the divorce? In every case I read, the husband says that he wants the divorce but is not giving a get because he wants money from her or more visitation or just wants to make her miserable. Not a single case where he wants her back! If you want to discuss whether the husband can withhold a get to receive money or more visitation rights - we can have that discussion. But let's be clear - this has nothing to do with the concept of "Mo'us Olai"
AZ
It is perfectly acceptable and legitimate for a husband to delay giving a Get until all aspects of the divorce process are settled. The Get should be the final instrument delivered after all outstanding divorce issues, including custody and asset distribution, is settled.
DeleteThe "get" may be withheld if the woman is demanding more than she is halachicly entitled to in monetary or custody matters, until such time she drops her non-halachic demands.
DeleteDaas Torah,
ReplyDeleteI read your response to Mike S. I don't understand how it answers the question. To rephrase the issue:
A husband and a wife are allowed to agree on a higher Kesubah. Shouldn't we assume that they entered into marriage with an implied agreement to follow the minhag of the country, just like we assume by every business deal that there is an implied agreement to follow the minhag of the country. And in the USA the minhag is for the wife to receive alimony and 50% of the assets.
AZ
What the goyim in the State Legislature legislate as law, and whatever and whenever they change the divorce/alimony laws every few years, does NOT make that minhag hamokem for Jews. Jews' minhag hamokem is the laws Jews follow. Not the goyim's laws or "minhagim". So while the goyim set laws of 50/50, that is not the Jewish law.
DeleteJewish law is that the husband owns substantially all marital assets. No non-Jewish law can change that fact. When the husband earns $150,000 a year and as a result has a large marital bank account and used his income to purchase a nice house, the wife cannot seize his hard-earned money that is his and always was his, using non-Jewish laws. A non-Jewish law decreeing that Person A (lets say the husband) must surrender his money to Person B (lets say the wife) for whatever reason, is not binding or relevant to Jews under Jewish law.
Jewish law (Shulchan Aruch) has its own sets of laws governing monetary matters between Jews (dinei mamonus). If we were to replace Shulchan Aruch with the laws passed (and changed every few years) by the New York State Legislature (or any other States or Country or Congress), then we may as well throw out the Shulchan Aruch. Who needs Shulchan Aruch if you're going to say that secular law overrides Shulchan Aruch under the rubric of minhag hamokem. Jewish law does not work that way.
AZ wrote:
DeleteDaas Torah,
I read your response to Mike S. I don't understand how it answers the question. To rephrase the issue:
A husband and a wife are allowed to agree on a higher Kesubah. Shouldn't we assume that they entered into marriage with an implied agreement to follow the minhag of the country, just like we assume by every business deal that there is an implied agreement to follow the minhag of the country. And in the USA the minhag is for the wife to receive alimony and 50% of the assets.
=====================
that seems to be the view of the rabbinut. Rav Eliashiv seems to agree that minhag is to be followed but he disagrees with a takana made by the rabbanut makes it a minhag. The shulchan Aruch I cited states that minhag is followed.
So yes I think that since minhag has a influence on a wide range of laws - that something which is acknowledge as local minhag becomes binding. I don't know why you don't think that non-Jewish laws can help establish minhag. In the post I cited the issue of a father's obligation to support his kids where it is acknowledged that the origin of this from non-Jewish sources.
An good discussion of customs - even non Jewish custom being viewed as halacha
Deletehttp://www.jlaw.com/Articles/bankruptcy.html
1.Informally established commercial practices
Halacha recognizes that commercial transactions are governed by custom. The first Mishna of "HaSocher es HaPoalim," Talmud Bavli, Bava Metzia 83a, states that
One who hires laborers and tells them to come early or stay late: in a place where the custom is not to come early or stay late, the employer is not allowed to force them [to do so]. . . All [such terms] are governed by local custom."
In fact, minhag prevails over what would otherwise be the halacha.23
Moreover, the majority view is that as to commercial matters, such customs need not have been established by halachic or communal authorities, nor even by Jews.24 Parties are simply presumed to have implicitly made applicable customs part of their agreement. Rabbi Moshe Feinstein explains:
It is entirely obvious that all of these rules that depend on custom . . . do not have to be customs established by Torah scholars, and not even by Jews specifically. Even if these customs were established by Gentiles, if they are the majority of the inhabitants of the city, the halacha is in accordance with the custom [unless the parties specify otherwise] because [it is deemed that] the parties conditioned their agreement in accordance with the custom of the city [unless they specify otherwise].25
There are many examples where custom prevails over what would otherwise be the halachic rule. For instance, where persons on a caravan hire a guide, halacha prescribes a formula for determining how much of the guide's fee each person should contribute. That formula takes into consideration both a per capita and a property component so that a person who brings more property pays more. If, however, there is a custom to determine payment based solely on the amount of property each person has with him, then the custom governs.26
Similarly, although halacha provides that one may become contractually liable only through certain formal procedures (kinyanim), the Gemara, Bava Metzia 74a, states that where people in business use a different method ("s'tumtah"), such as a handshake, this method is halachically valid.27
continued
Delete2. Custom established by secular law
A custom is frequently based on the fact that secular law requires such action. Many poskim have stated that this fact does not detract from the custom's halachic status. For example, Rabbi Yosef Iggeres argues:
One cannot cast doubt upon the validity of this custom on the basis that it became established through a decree of the King that required people to so act. Since people always act this way, even though they do so only because of the King's decree, we still properly say that everyone who does business without specifying otherwise does business according to the custom.28
Similarly, Rabbi Blau states in the name of Chacham Yosef Chaim Pealim ("Ben Ish Chai")29 that even where the separate doctrine dina d'malchusa dina, to be discussed by us in Section IV, does not apply, if people act in accordance with the secular law, the custom has halachic validity as custom.30
Rabbi Moshe Feinstein has arguably gone further, suggesting that secular law may have the same effect as minhag, even if people do not always act in accordance with the secular law. Thus, in one case, Rabbi Feinstein was told that applicable landlord-tenant law prohibited the landlord from evicting a tenant at the end of the lease, even if the landlord wanted to use the property himself. Although Rabbi Feinstein was asked whether the law was halachically valid because of dina d'malchusa dina,31 he chose not to rule on this ground. Instead, he declared that the landlord agreed to the secular law at the time of the lease:32
[C]ertainly the law of the land is no worse than minhag and unless the parties agree otherwise it is deemed as if they agreed according to the secular law, and a fortiori when the minhag is in accordance with the secular law.33
Customs established for merchants and commercial transactions, whether set by local law or customary practice, are NOT comparable to monetary matters in personal settings or dealings or divorce. Divorce is NOT a commercial or mercantile transaction. It is a personal monetary issue or dispute or ownership question between two individual Jews.
DeleteMinhag HaMokem applies in commercial transactions because, effectively, both parties to the transactions accepted minhag hamokem at the time they made their transaction. So halacha therefore recognizes minhag hamokem as binding.
DeleteBut that is inapplicable to ownership issues that were not a result of a transaction. If Reuven lost an object and Shimon found that object, whether Shimon has to return it to Reuven is not dependent upon minhag hamokem or secular law but rather dependent on strict halacha, Jewish Law as defined by Shulchan Aruch.
And since a divorce is only a question of who owns what money or property which is not a result of a transaction, but rather a simple ownership issue, strict halacha applies and not minhag hamokem. (Even though minhag hamokem does apply to commercial transactions.)
Daas Torah,
DeleteThank you for the sources from R' Moshe Feinstein.
AZ
Stan wrote "Mo'us olai is not according to rov poskim a reason for a bais din to be mechayev a get."
ReplyDeleteHow is this similar to Mo'us Olai? In 50% of the cases, the husband was the first to want a divorce, he left her first, didn't want anything to do with her, he is insisting on a divorce, and wants to be divorced in every sense of the word - but doesn't want to give a get, because he hates her. She is not saying Mo'us Olai, he is the one saying Mo'us Olai!
AZ
AZ stop inventing statistics. Prove that in 50% of cases its the man who leaves her. Furthermore you made a claim that she has a right to demand a get. According to who? Please show me in the shulchan oruch which seif that she has a right to demand a get? My point was even in a case of mo'us olai she does not.
And in the world we live in in the US in 90% of the cases at least its the woman who runs to arko'oys with mesirah and lies where she definitely has no right to a get. Where do my statisticvs come from? Why would a man run to court when the courts are so biased against him?
You are frankly some naive feminist who has no idea what really goes on when a woman with the court system decides she is going to destroy a man financially and emotionally. Do you think when all this is over that a man is really in a position to get remarried? he is usually bankrupt and emotionally wrecked following all the false allegations and lies thrown at him. So in theory while he may be permitted to remarry his ex wife has seen to it that it can't happen and if it does he comes with so much emotional baggage that the chances of it working are almost zero.
So, what I hear you saying, is that some women are scoundrels of the highest order. Agreed.
DeleteI still don't believe that that entitles us to conclude that women perforce are to be left nearly penniless upon divorce. It just isn't true. See the comment below on twisted יראת שמים from Rav Kook.
It is definitely difficult to explain why people are afflicted with someone trying to destroy their lives....but wholesale marginalization of women undergoing divorce is NOT the proper answer to this dilemma.
The kesuba is designed to insure they are not penniless.
DeleteThe Kesuba was not created by the rabbis as a safety net for the wife. It is a device whose sole purpose was to discourage divorce. Once the cherem of Rabbeinu Gershom was accepted there really is no need for a kesuba for that purpose since the wife can simply refuse to accept the get until she gets her demands met.
DeleteThe item that is the most troubling, is that is seems in many cases Limud HaTorah is causing a corruption of people's character. How could a compassionate person want a woman to just get 200 zuz (about 2 thousand dollars) and be left on the street? People who never learnt torah naturally think that she deserves a lot more than that. Are people becoming worse because they learn Torah? Of course, the problem isn't Torah - the problem is our misunderstanding of Torah. Poskim like R' Schachter who help the woman also know Torah.
ReplyDeleteWe would do well to learn the words of Rav Kook.
"Yir’at Shamayim—fear of heaven—may not supplant the natural sense of morality of a person, for in that case it is not a pure Yir’at Shamayim. The signpost for a pure Yir’at Shamayim is when the natural sense of morality (המוסר הטבעי) that is extant in the straightforward nature of man is improved and elevated by it more than it would have been without it. But if one were to imagine a kind of Yir’at Shamayim that without its input, life would tend to do well and bring to fruition things that benefit the community and the individual, and furthermore, under its influence less of those things would come to fruition, such a Yir’at Shamayim is wrong."
AZ
You are disagreeing with Chazal. Chazal set the rules and regulations governing Jewish divorces. Between your point of view and Chazal's, my vote is to go with Chazal.
DeleteAZ, while you have a point, remember we are discussing what a beis din can din. There are many cases where a person morally ought to pay a certain amount of money, but the beis din shel mattah is not empowered to force him to do so. (IIRC, a person who injures someone through gramma is an example.) A moral obligation and a legal one are not the same thing.
DeleteAs for a woman being "left on the street," that is not the way it is in many situations. What if the woman has an education and is able to get a job? Or her family can help support her? Or some combination thereof?
Tal Benschar wrote "remember we are discussing what a beis din can din"
ReplyDeleteAgreed, at the end of the day we have to follow halacha. My main point is that if in theory the halacha would be that the woman receives only 200 zuz, then when giving her the 200 zuz we should at least feel bad for the woman, tell her we are sorry for her situation, and try to think of other long term solutions for other future women(prenuptial agreement etc.). However, some of the commenters here and on other threads seem to be rejoicing at her halachic predicament. They are happy if the halacha is that the woman gets almost nothing. It seems that they wouldn't be happy if we could come up with a halachic solution to help the woman receive a get right away with alimony and a significant percentage of the assets via a prenuptial agreement or some other halachic method.
Kol tuv,
AZ
I just made a new post regarding the kesuba that it is not for financial security - but to prevent divorce.
ReplyDeletehttp://daattorah.blogspot.co.il/2013/09/kesubas-purpose-is-to-prevent-divorce.html
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ReplyDeletenope, in the early years, he was a protégé of Rav Herzog, who was Chief rabbi and religious Zionist. Rav Elyashiv actually issued heterim for R Herzog, and thus got a job as a Dayan in the Rabbanut, and there are photos of him attending RZ ceremonies, including the inauguration of Heichal Shlomo - which the Brisker Rov was so opposed to.
ReplyDelete