Tuesday, September 3, 2013

Kesuba's purpose is to prevent divorce not to provide financial security

In the previous post about pitzu'im (divorce settlement) it was asserted or implied by various commentators that the kesuba was instituted to provide financial security for the wife in case of divorce. In fact, the sources I have seen give it no such role. According to the Talmud (Kesubas 11a) the kesuba was instituted to make divorce difficult - for both the husband and wife. It is viewed as a device of social control over marriage. A rebellious wife loses her kesuba. A rebellious husband must add to the kesuba. There is mention in the Talmud of major rabbis who didn't divorce a difficult spouse simply because they couldn't afford to pay the kesuba. The focus of rabbinic concern was solely to create pressure that the couple remained married - not that the wife shouldn't be penniless if she was divorced. The fear was that a woman might fall in love with another man and want to leave the marriage. The loss of her kesuba was motivation not to focus on being in love but to have a stable marriage. If she declared that she found her husband disgusting and wanted out of the marriage - the divorce was only given if she accepted the loss of her kesuba and the husband agreed to the divorce. Permanence of marriage not personal happiness is clearly the main concern of the Rabbis. In fact I don't know of any rabbinic sources regarding the financial security of the divorced wife until recent times when the issue of pitzu'im (divorce settlement) was raised. Today there is concern - in the secular justice system - for a variety of payments to ensure that the wife is not penniless and that she get an equitable share of the couple's wealth as well as child support. This modern secular concern clashes with halacha. Any sources to the contrary would be greatly appreciated.
Justice Menchem Elon states the following in Principles of Jewish Law
The ketubbah was instituted for the purpose of protecting the woman, "so that he shall not regard it as easy to divorce her" (Ket. 11 a; Yev. 89a; Maim. Ishut 10:7), i.e., in order to render it difficult for the husband to divorce his wife by obliging him to pay her, in the event of a divorce, the sum mentioned in the ketubbah, which generally exceeded the sum due to her according to law. As this is the object of the ketubbah, some auth­orities are of the opinion that since the herem of Rabbenu Gershom, which prohibited the divorce of a wife against her will, the same object is achieved in any event; it is therefore argued - on the analogy of Ketubbot 54a concerning the ravished woman who is thereafter married by her ravisher and, according to pentateuchal law, cannot be divorced - that there is no longer any need for a ketubbah to be written. However it has remained the halakhah that a ketubbah is to be written (Rema EH 66:3, concl.).

Rabbis Broyde and Reiss have a good article on  JLaw
[...] the purpose of the ketubah was to mandate payments in cases of divorce high enough so that a man would not hastily divorce his wife. Payments of $25, $100, or even $1,000 hardly accomplish this talmudic mandate. Consistent with this notion, it is noteworthy that Rabbi Feinstein dismissed the European practice which was to evaluate the ketubah at 75 rubles because this sum would be laughably small nowadays.
What then is the purpose of the Ketubah in cases of divorce after the ban on polygamy and unilateral no-fault divorce? Rabbi Moshe Isserless (Ramo) provides a very important answer.
He states in the beginning of his discussion of the laws of ketubah:
See Shulchan Aruch Even Haezer 177:3 where it states  that in a situation where one only may divorce with the consent of the woman, one does not need a ketubah. Thus, nowadays, in our countries, where we do not divorce against the will of the wife because of the ban of Rabbenu Gershom, as explained in Even Haezer 119, it is possible to be lenient and not write a ketubah at all; but this is not the custom and one should not change it
[...]
However, no one argues with the basic economic assertion of the Ramo: The purpose of the Ketubah written to impose a cost on the husband for divorce — so that he should not divorce her rashly — has become moot; this basic purpose has been overtaken by the ban of Rabbenu Gershom which simply prohibited that which the Talmudic Sages sought to discourage. The ketubah neither establishes nor effects nor modifies any economic rights in cases of divorce without fault in places where Cherem deRabbenu Gershom is accepted. In situations where Cherem deRabbenu Gershom is not applicable due to misconduct, fault is always found, and no ketubah payment is thus mandated by Jewish law.
Rav Moshe Feinstein (Igros  Moshe E. H. 4:91): The value of the ketubah is not known to rabbis and decisors of Jewish law, or rabbinical court judges; indeed we have not examined this matter intensely as for all matter of divorce it has no practical ramifications, since it is impossible for the man to divorce against the will of the woman, [the economics of] divorce are dependent on who desires to be divorce, and who thus provides a large sum of money as they wish to give or receive a divorce.

36 comments :

  1. Recall that the gemara says that originally the ketuba settlement was deposited with the wife's father at the start of the marriage, and Chazal found that, since husbands had given up the money already, men were too ready to divorce their wives. I think it would be more accurate to say that the ketuba, which was to provide financial protection in case of divorce or widowhood, was restructured by Chazal to also help reduce the divorce rate.

    You are correct to say that Chazal values stable marriages more than personal fulfillment. However, that is not an absolute preference, which is why they said that a beit din can compel a get if the husband has ailments or exhibits behaviors that most women would find intolerable.

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    1. can you provide a single reference in the gemora or rishonim where it says that the kesuba was to provide financial support in case of divorce? I agree stability is not absolute but it is clearly the reason for the creation of kesuba.

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    2. I don't have time to look up that gemara now. It may be that I just took for granted that that was the purpose in having the husband deposit the money with the wife's father at the time of the marriage. In that form it doesn't, as Chazal observed, function as a deterrent against divorce at all.

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    3. Indeed. Halacha recognizes that once divorced the ex-wifes financial security is not the responsibility of her ex-husband anymore than her ex-husband is responsible for the financial security of any other random person. And why should he be. She is not his wife any longer.

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    4. "Recall that the gemara says that originally the ketuba settlement was deposited with the wife's father at the start of the marriage, and Chazal found that, since husbands had given up the money already, men were too ready to divorce their wives."

      Wikipedia:

      The rabbis in ancient times insisted on the marriage couple entering into the ketubah as a protection for the wife. It acted as a replacement of the biblical mohar[2][3][4][5][6] – the price paid by the groom to the bride, or her parents, for the marriage (i.e., the bride price). The ketubah became a mechanism whereby the amount due to the wife (the bride-price) came to be paid in the event of the cessation of marriage, either by the death of the husband or divorce. It may be noted that the biblical mohar created a major social problem: many young prospective husbands could not raise the mohar at the time when they would normally be expected to marry. So, to enable these young men to marry, the rabbis, in effect, delayed the time that the amount would be payable, when they would be more likely to have the sum. The mechanism adopted was to provide for the mohar to be a part of the ketubah.

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    5. JJ writes:
      "Indeed. Halacha recognizes that once divorced the ex-wifes financial security is not the responsibility of her ex-husband anymore than her ex-husband is responsible for the financial security of any other random person. And why should he be. She is not his wife any longer."

      I will tell you why. Rational people recognize that traditionally, while the husband went out to work, the wife enabled him to do so by staying home and raising the children. If he were home raising the kids, he could not be going to work. Therefore she has an equal share in his earnings (response to a previous commentator who refers to "HIS hard earned money"). It's like a Yissachar/Zevulan arrangement.

      At the same time, she gave up her ability to earn a living in her own right so that her husband could do so. Therefore, upon divorce, while he can immediately continue earning his income, she has to start from scratch. Alimony payments were designed to correct for this inherent unfairness. Rational people recognize this is reasonable.

      Now - are there horrible flaws in the system? For sure. Lifetime alimony is a ridiculous concept, as we do expect women to become self-sufficient at some point (even those who gave up 25 career years). Are there horrible judges who confer exorbitant alimony payments to the ex-wife? For sure. Are there wicked and evil women who game the system and have their ex-husbands jailed on trumped up charges? For sure (I know someone personally who was in jail falsely for this very reason). Are men inherently at a disadvantage in the US court system? YES!

      But none of this changes the fact that it is reasonable to provide some support to the women for a set number of years who GAVE UP HER ABILITY TO HAVE A CAREER in order that the husband have his career.

      If this is not part of the kesubah, so be it. It is still reasonable she receive some sort of support.

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    6. Your arguments reflect the debate that Justice Elon describing going on in the rabbinut concerning divorce settlement. Rav Eliashiv was clearly against it.

      There is in fact no basis in halacha for your concerns - though they clearly reflect reasonable expectations in our present society.

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    7. Just because something is not codified in halacha does not make it wrong - the fifth shulchan aruch demands we act reasonably and rationally.

      How can anyone say that a woman who gave up a lifetime of career and money-making opportunities so that her husband can have those exact opportunities is entitled to none of the benefits upon divorce? How is that "diracheha darchei noam?" Should women, then, refuse to raise their children so that they can advance their careers (like men can) lest they need to be self-sufficient someday? Is that rational? Is that toradik?

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    8. Esther: You are making the secular arguments for the exact reasons they make them. But that is not the Torah view or the Halachic view. The fact of the matter is that the Torah and Halacha do not take the secular position you are espousing.

      In fact, according to the Torah's Halacha, even while married a wife's income is owned by her husband and not by her.

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    9. Esther halacha is usually modified (within the range of what is actually permitted) only if there is a significant problem that won't go away. As Rav Ovadia Yosef noted - in the old days when women were frum [and passive] if they couldn't get a divorce they would just accept it. However today women will commit adultery and that is why he calls for changes.

      Similary the Gaonim demanded that the husband give a get in ma'us alei cases - because women were becoming Muslim rather than remain in bad marriages.

      The changes of Rabbeinu Gershon only came about because of crisis.

      In the time of the Ramban he said the position of the gaonim was not longer relevant because the problem was no longer conversion to Islam but women were interested in easy divorces to leave their husband for other men. Therefore divorces were made much harder.

      Bottom line - there has to be a crisis and not simply whether something is fair.

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    10. Esther -- the Torah'dik view is that a wife shouldn't have a career in the first place and shouldn't be a "money-maker". The Torah'dik view is that a woman should be a housewife, be at home for her children, etc.

      In fact, both Rambam and Shulchan Aruch say that a wife should not leave her home too much. Rambam quantifies it that a wife should not leave her house more than once or twice a month.

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    11. Daas Torah:

      There in fact is a crisis today. The crisis is quickie divorces, divorce-made-easy, disposable marriages and far too many divorces. We need to buckle down and make it harder to bring back the traditional situation of divorce as a rarity. That is the traditional Jewish way that lasted from the beginning of history until about 30 or so years ago.

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    12. Just because something is not specifically mentioned in the sources does not make it assur. The Shulchan Aruch makes no mention of green socks; does that mean I cannot wear green socks? I am espousing a "secular" point of view for wearing green socks?

      This is where the "common sense" / fifth shulchan aruch / not acting "naval birshus hatorah" / acting as a true ben-Torah comes in: it makes no rational sense to say a woman who is unable to support herself (at least for the short term) due to her sacrifice so that her ex-husband could support HIMself should not receive a measure of support. That may not be in the kesubah, true, but abiding by that general reasonable, rational principle is not AGAINST halacha.

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    13. A eptember 3, 2013 at 6:46 PM
      "Esther -- the Torah'dik view is that a wife shouldn't have a career in the first place and shouldn't be a "money-maker". The Torah'dik view is that a woman should be a housewife, be at home for her children, etc."

      I agree. So, given that it is toradik for her NOT to have a career and be a money maker, what is she supposed to do upon divorce if you're BOTH claiming she should have no marketable skills AND is not entitled to a measure of support from her ex-husband?

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    14. What you call common sense is only your opinion. Others believe common sense is opposite of what you are espousing. What you dream is the "fifth shulchan aruch", others say is the opposite of the fifth shulchan aruch.

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    15. " agree. So, given that it is Toradik for her NOT to have a career and be a money maker, what is she supposed to do upon divorce if you're BOTH claiming she should have no marketable skills AND is not entitled to a measure of support from her ex-husband?"

      Marry another man.

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  2. One very important point missing from the above post is the situation with all non-Ashkenazim. Only Ashkenazim are subjext to Cherem Rabbeinu Gershom. Non-Ashkenazim, including all Sephardim, Teimanim and others, are NOT subject to CRG.

    Therefore, for non-Ashkenazim the kesuba may be more halachicly significant and has not lost its original purpose it was halachicly instituted.

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  3. Everyone agress that ONE of the reasons it to reduce divorce. However

    1. Woman recieves ksuba if the husband dies. Hardly to keep marriage.
    2. If sustaining marriage is the ONLY reason, there are other ways to achieve it (e.g. CRG). The fact that money is involved and it's payable to the woman. I would argue, her financial sustainability is part of the cheshbon.


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    1. How can you claim the kesuba is partially to help the wife financially sustain herself? The amount granted in the kesuba was NEVER large enough to allow the wife to be financially sufficient for anything other than a very short period of time.

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    2. Is 1 year a very short period of time?

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    3. I think a newly divorced woman without any finanical resources except for the kesuba payment would view 1 year as a very short time and surely according to the views that payment is considerably less than 1 year's expenses.

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  4. all this is irrelevant nowadays, since, in practice, the wife is asked to "waive" the 100 / 200 zuz ketubah, in lieu of the property settlement. (if she wont waive, its considered waived anyway, even by RCA standards.) if there's no property, well, there's no 200 zuz ketubah. (ditto upon the husband's death. inheritance vs 200 zuz.)

    the 200 zuz replaces alimony and property settlement. or vice versa, in today's day and age.

    200 zuz, by the way, is basically a years living expenses. the question is, is that $20,000 or $100,000. (rav ovadyah yosef says $280, which he consideres to be the value of "unalloyed silver". sfardim anyway do not operate on the 200 zuz figure.)

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  5. The husband nowadays needn't halachicly surrender his right to all the property. And the wife cannot halachicly demand half of it.

    The sons nowadays inherit the father while the wife receives a fixed amount to support her living expenses. The sons needn't surrender their inheritance neither to their mother nor to their sisters.

    No one says annual living expenses for one woman is $100,000. That is a dreamy figure.

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  6. I'm curious what actually happens in real life. Is there any statistics about how often women go to secular courts for divorce settlements vs accepting a BD settlement.

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    1. No, there are no real statistics on it.

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  7. As for the purpose of the ketubah, I agree that it is to prevent divorce - but WHY prevent divorce? I believe it is cast as chazal looking out for benos yisrael. Is that "making sure they have a husband for nonfinancial reasons" or "making sure they are married as unmarried women were paupers." I tended to assume the latter. And understood the one-year to be long enough to find a new husband, hopefully, for most.

    [to the editor: i am having trouble posting with a pseudonym without using open id, etc, with which i don't have accounts. i am trying the name/url option, with a common url. i would do name/email but that does not seem available.]

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  8. In the days of chazal women did produce money through their labor - that's what maaseh yadehah is. they were not just non-earning homemakers. this was true for much of the middle ages as well. and, in those days, a woman who,say, owned a successful business and married a wealthy man would have had a commensurably large ketubah. in other words, the system had a way of dealing with the fact that some women were contributing a lot to the domestic economy, financially, that would allow them to leave the marriage with more than a woman who did not so contribute. is there any such mechanism in halacha as currently applied by batei din? because if not, it seems something is broken.

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    1. The income a wife earns during marriage is halachicly owned by her husband.

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    2. "The income a wife earns during marriage is halachicly owned by her husband."

      Exactly my point. That's why a a high-earning woman would negotiate a higher ketubah - so that she could leave the marriage with some of what she brought in during it's life - I don't mead directly "keep it," though as Mike S points out there are ways to do that too, but rather that she could contribute to the married finances knowing that it would not all just go to her husband and leave her in the cold when the marriage ends (by death or divorce). (In general, Mike S.'s points about the currently-underused mechanisms in halacha that allow more flexibility than simply "the woman always walks away with 200 zuz no matter what she or her husband make" is what I was trying to say - do we want to go back to encouraging people to use these mechanisms? And if not, how can we possibly say that every single financial situation calls for the same payout to the wife when we know historically that was not the case (because people did negotiate)?

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    3. There is no way women today will routinely invoke those mechanisms. It just will not happen on any large scale.

      ----------------------------------------------------

      Halachia is halacha. We need to follow it, honor it and follow it to the tee.

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  9. In hilchos tzedaka a divorcee is quite high on the list in order of obligation

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  10. Rav Eidenson: The wikipedia entry you gives is not in accord with the gemara that explicitly says the reason they stopped having the husband pay up front was that it did not act as a deterrent against divorce.

    A: But the gemara says that she can keep her earnings if she forgoes being supported by her husband.

    If one were to stand on the practice of giving the wife only the ketuba in the event of divorce or widowhood, the likely consequences are:
    1) Couple will negotiate the amount of the ketubah
    2) The wife's family will give any support to her "on condition the husband has no authority over it"
    3) Woman will be told to keep their earnings and forgo support
    Given the divorce rate and the earning power of women, a woman who did otherwise would be a fool.
    Does anyone think this will strengthen the Jewish family. We certainly have records in the tshuvah literature of how ugly #1 could get.

    I also note that no one seems worked up over the fact that widows also now get more from the estate than in the time of the gemara. Despite Nachalah being a d'oraitah. If the concern were truly for the halacha , people would be worked up over that.

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  11. JJ wrote "You are making the secular arguments for the exact reasons they make them."

    This isn't a secular argument. This is the "Musar Hativi" the natural inborn mussar that Rav Kook referred to (see my comment on a prior thread). What else is "Mussar Hativi"? Remember this isn't a feminist argument - there is widespread agreement in America - among liberals and conservatives that women deserve a significant percentage of the assets.

    AZ

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    1. AZ, this is only your personal feelings and characterizations. Halacha is halacha. We need to honor it, accept it and follow it to the tee.

      Goyishe liberals OR conservatives and goyishe laws have no relevancy to us.

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    2. There is also widespread agreement in America - among liberals and conservatives that Jews and gentiles deserve to have the right to intermarry.

      There is widespread agreement in America - among liberals and conservatives that homosexuality should be respected and protected.

      There is also widespread agreement in America - among liberals and conservatives that while adultery isn't so nice, adulterers should not be prosecuted.

      There is also widespread agreement in America - among liberals and conservatives that worshiping idols and false gods is and must be constitutionally protected and respected.

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  12. mikey 12:10 -- besides the fact that bet din awards are confidential, there is the bigger issue of batei din rarely issue awards. (at least in america.)

    in reality, they just go over the numbers, do some negotiations, and propose a settlement. its called mediation (vs arbitration). if you really want arbitration, one must insist on it, and the bet din will refuse to comply (they're afraid of getting sued / they know one party will go to court anyway.)

    2. few batei din will order marriage counseling. (and in today's atmosphere, one party may not be willing to go to counseling with an open mind, anyway.)

    one (big) bet din, specfically will NOT order counseling, insisting on a get right away, before even doing the mediation (which they insist on calling arbitration.)

    if the propose of the ketubah is to prevent divorce, as you say, why not order counseling as a first step in the process (unless the couple did counseling before going to bet din.)

    note, too, that the israeli version of the prenup requires a number of counseling sessions, before the pre nup can be invoked.

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