Rav Kafach: Israeli monetary law determines halacha

The following excerpt is taken from Justice Elon's Mishpat Ivri (volume IV pages 1761-1762). It asserts an interesting rationale why secular Israeli law regarding money can be binding according to the halacha. This is important especially on the issue of divorce settlements where halacha and secular law greatly diverge.

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A particularly instructive approach to the relationship between Israeli statutory law and Jewish law is taken by Rabbi Yosef Kafah. a member of the Rabbinical Court of Appeals and a major halakhic authority in the State of Israel. Rabbi Kafah's position is expressed in the leading case of discussed further below. In commenting on statements made by the district court as to the nature of statutory provisions expressly made applicable to the rabbinical courts as well as the general courts, he said:

It would seem that these statements concerning "laws explicitly directed to them [the rabbinical courts]" are based on a perception that the Legislature has acted to require the rabbinical courts to reach decisions that are contrary to their religious beliefs. Indeed, many people share this perception, but their logic begs the question. They assume the premise that these laws require the rabbinical courts to reach decisions that are contrary to the laws of the Torah, and on the basis of that premise they conclude that the law "violates pure halakhic considerations." But this conclusion is not inevitable; rather, the law should be viewed according to its plain meaning.

Section 1 of the Woman's Equal Rights Law provides: "The same law shall apply to women and men with regard to every legal transaction." Section 5 provides: "This law shall not affect the religious law in matters of marriage and divorce.26

The plain meaning of these provisions is that the Legislature established a binding rule only with respect to monetary matters, in regard to which it perceived the existing law as discriminating against women .... The legisla­ tive mandate is manifestly based on the assumption that legislation as to monetary matters would not affect religious law, since the legislation is con­ sidered "a stipulation as to a monetary matter"; therefore, it is not a [prohibited] stipulation to contract out of a Biblical norm. Consequently, it may be assumed that the Legislature had no intention to interfere with anything that is not "a stipulation as to a monetary matter." This is an instance of an ap­ proach that can lead to a proper understanding of a number of statutes that have not been so understood.27

In other words, just as under Jewish law there is freedom of contract, i. e., the parties to a legal transaction may agree on terms contrary to a particular halakhic rule, provided the agreement concerns a "monetary matter" (mamon) and not religious law (issur) ,28 so a statute of the Knesset, enacted in the name of the people by their elected representatives, is in the nature of an agreement by the people to conduct their affairs in accordance with the legislative provisions. As long as the matter does not concern religious law, such an agreement is fully effective even if it is contrary to a particular halakhic rule." This interpretive approach by Rabbi Kafah. which is particularly significant in that it is taken by a leading rabbinical court judge and important halakhic authority, is applicable not only to the particular question dealt with in the Nagar case but also, as explained more fully below ,to the broader question of the relationship between the rabbinical courts and the general legal system of the State of Israel.30

Most Israeli female medical personel are sexually harrassed

Times of Israel    Most of Israel’s female medical personnel have been sexually harassed at one point or other during their career, a study showed.

The research, to be formally released at a conference Tuesday, found that 69 percent of female doctors have been victims of such behavior, as were 62% of female nurses, according to a report in the Maariv newspaper. The bulk of the unwanted attention came from patients, the survey said.[...]

Participants were also asked how frequently they felt harassed. While they were given the option to report harassment on a daily basis, Kagan noted that most of them reported such incidents happened either once a month or once a year. Age was a factor, as the younger nurses and doctors reported harassment at a more frequent pace. [...]

Kolko case: Lakewood avreichim protest the disgusting treatment of victim's family

Just received this Lakewood pamphlet. I do not know who wrote it but it is now circulating Lakewood. It is good to see that there are those in Lakewood who get outraged by blatant injustice and chilul HaShem.    It provides a halachic defense of the victim's father actions and shows that he was not a moser. It severely criticizes those who drove him out of Lakewood.

Click for English Translation

 קונטרס והצדיקו את הצדיק Kolko case Defense of victim's family
  

Woman who testified against Weberman driven out of shul Rosh HaShanna

NY Post    The brave Orthodox Jewish teen whose testimony helped convict the prominent Brooklyn counselor who had sexually abused her was driven out of her own synagogue on Rosh Hashana last week.

The married, 18-year-old victim was in the Williamsburg synagogue where her family has prayed for the past decade when a man yelled, “Moser, out of the shul!” the woman’s husband told The Post on Sunday.

The word “moser” refers to a Jew who informs on another Jew to secular authorities.

“They stopped the praying until she left,” said her husband, Boorey Deutsch, 26. “Some woman tried telling my wife to stay there and not leave. She shouldn’t care what they say. But my wife ended up leaving.” 

“She felt horrible and mistreated. They treat survivors as if they are the abusers,” Deutsch fumed to The Post.

Deutsch and his wife have suffered harassment ever since she first accused Nechemya Weberman, 54, of sexually abusing her after she was sent to him for counseling as a 12-year-old. [...]

YU Abuse Report: Prof Marci Hamilton gives it failing grade

Verdict Justia    After many months, and many media stories about child sex abuse at the Yeshiva University High School (“YUHS”) in The Jewish Daily Forward, Yeshiva University released the “independent investigation” of child abuse that was led by Karen Patton Seymour, Co-Managing Partner of the litigation department of the prestigious law firm Sullivan & Cromwell.  The report was issued on August 26, in the doldrums of the summer, the week before Labor Day.

Before launching into my analysis of this disappointing report, I should clarify my own role in the report, given that this is one of my key areas of expertise and given that I am a law professor at Yeshiva’s law school.  Here is the summary of my involvement: I met once with YU Administrators, at my request, to urge them to do the right thing.  And I spoke with Ms. Seymour twice to urge her team to do the right thing.  My advice was not sought otherwise, and I saw the report first in the press.  In my view, they did not do the right thing.

The YU Report Is Not a “Report”

The YU Report is, in fact, a policy statement.  First, it spends seven pages describing what the Sullivan & Cromwell attorneys did.  Fair enough.

Second, it provides a four-paragraph (that is not a misprint) summary of “Findings.”  Readers are told that “multiple incidents of varying types of sexual and physical abuse took place at YUHSB [and at other schools comprising the University] during the relevant time period. . . including, in some instances, after members of the administration had been made aware of such conduct.”  This is little more than a continuation of the cover-up that apparently already occurred.

Third and finally, the rest of the document describes YU policies and how they should be improved.  Appended to the document is another report and analysis of its policies produced by T&M Protection Resources.

YU reportedly spent millions paying Sullivan and T&M to produce a “Report” that anyone with knowledge of child-protection policies could have written after receiving YU’s policies and reading the Forward stories.  I do not intend to denigrate Sullivan’s work or the work of T&M.  Future policies and analysis of past policies are valuable fodder for such endeavors, but I would not have permitted my name to be on such a deficient and embarrassing document.  A document that was truly a “Report” would have included an actual report of the facts that prompted the need to review those policies. [...]

Finally, and most troubling to me, is that this document is an affront to survivors everywhere.  I have never read a document of this genre with less verbiage speaking directly to the survivors.  It is, in a word, cold.  YU needs to figure out how to become more child-centered in its approach to abuse, or it will be fighting these battles for decades to come.

After many months, and many media stories about child sex abuse at the Yeshiva University High School (“YUHS”) in The Jewish Daily Forward, Yeshiva University released the “independent investigation” of child abuse that was led by Karen Patton Seymour, Co-Managing Partner of the litigation department of the prestigious law firm Sullivan & Cromwell.  The report was issued on August 26, in the doldrums of the summer, the week before Labor Day. - See more at: http://verdict.justia.com/2013/09/05/sullivan-cromwell-and-yeshiva-university-issue-a-disappointing-report-on-child-sex-abuse-that-is-short-on-facts-and-long-on-public-relations#sthash.aMv0STHi.dpuf

After many months, and many media stories about child sex abuse at the Yeshiva University High School (“YUHS”) in The Jewish Daily Forward, Yeshiva University released the “independent investigation” of child abuse that was led by Karen Patton Seymour, Co-Managing Partner of the litigation department of the prestigious law firm Sullivan & Cromwell.  The report was issued on August 26, in the doldrums of the summer, the week before Labor Day. - See more at: http://verdict.justia.com/2013/09/05/sullivan-cromwell-and-yeshiva-university-issue-a-disappointing-report-on-child-sex-abuse-that-is-short-on-facts-and-long-on-public-relations#sthash.aMv0STHi.dpuf

After many months, and many media stories about child sex abuse at the Yeshiva University High School (“YUHS”) in The Jewish Daily Forward, Yeshiva University released the “independent investigation” of child abuse that was led by Karen Patton Seymour, Co-Managing Partner of the litigation department of the prestigious law firm Sullivan & Cromwell.  The report was issued on August 26, in the doldrums of the summer, the week before Labor Day. - See more at: http://verdict.justia.com/2013/09/05/sullivan-cromwell-and-yeshiva-university-issue-a-disappointing-report-on-child-sex-abuse-that-is-short-on-facts-and-long-on-public-relations#sthash.aMv0STHi.dpuf

After many months, and many media stories about child sex abuse at the Yeshiva University High School (“YUHS”) in The Jewish Daily Forward, Yeshiva University released the “independent investigation” of child abuse that was led by Karen Patton Seymour, Co-Managing Partner of the litigation department of the prestigious law firm Sullivan & Cromwell.  The report was issued on August 26, in the doldrums of the summer, the week before Labor Day. - See more at: http://verdict.justia.com/2013/09/05/sullivan-cromwell-and-yeshiva-university-issue-a-disappointing-report-on-child-sex-abuse-that-is-short-on-facts-and-long-on-public-relations#sthash.aMv0STHi.dpuf

After many months, and many media stories about child sex abuse at the Yeshiva University High School (“YUHS”) in The Jewish Daily Forward, Yeshiva University released the “independent investigation” of child abuse that was led by Karen Patton Seymour, Co-Managing Partner of the litigation department of the prestigious law firm Sullivan & Cromwell.  The report was issued on August 26, in the doldrums of the summer, the week before Labor Day. - See more at: http://verdict.justia.com/2013/09/05/sullivan-cromwell-and-yeshiva-university-issue-a-disappointing-report-on-child-sex-abuse-that-is-short-on-facts-and-long-on-public-relations#sthash.aMv0STHi.dpuf

After many months, and many media stories about child sex abuse at the Yeshiva University High School (“YUHS”) in The Jewish Daily Forward, Yeshiva University released the “independent investigation” of child abuse that was led by Karen Patton Seymour, Co-Managing Partner of the litigation department of the prestigious law firm Sullivan & Cromwell.  The report was issued on August 26, in the doldrums of the summer, the week before Labor Day. - See more at: http://verdict.justia.com/2013/09/05/sullivan-cromwell-and-yeshiva-university-issue-a-disappointing-report-on-child-sex-abuse-that-is-short-on-facts-and-long-on-public-relations#sthash.aMv0STHi.dpuf

Breaking News: Kolko wants to withdraw guilty plea

Asbury Park Press    The lawyer representing a former yeshiva camp counselor in a Lakewood sexual abuse case wants to have his client’s guilty plea nullified, claiming the defendant was pressured by the community into admitting guilt in the case.

Alan L. Zegas, a Chatham attorney representing Yosef Kolko, filed a motion to withdraw his client’s guilty plea.

Kolko, 39, of Geffen Drive in Lakewood, had been scheduled to be sentenced in the child sex-abuse case on Wednesday, but Zegas’ motion prompted its postponement.[...]

Superior Court Judge Francis R. Hodgson gave Zegas until Sept. 30 to file a brief outlining the reasons why he should consider allowing the guilty plea to be withdrawn.

Hodgson scheduled a hearing on the motion for Oct. 17. If Zegas doesn’t convince the judge to allow his client to withdraw his guilty plea, Hodgson will proceed to sentence Kolko that day, according to court officials. [...]

Rambam - sexual sins are a serious problem in all ages & all societies

In a recent discussion with Rav Nosson Kaminetsky, he showed me a very important observation of the Rambam that is relevant to many of our discussions. 

Rambam(Issurei Biah 22:19), ... You will never find a society in any era that did not have a serious problem with sexual sins and transgressions

 Not only are there problems in decadent societies  but also in the frumest society with the strictest community decrees - sexual issues such as adultery, homosexuality, child abuse are a significant problem. As a number of commentaries have pointed out, to the degree that one tries to restrict individuals in a society - to that degree the yetzer harah increases. On the other hand  if you loosen restrictions and have a weaker yetzer harah and habituation to temptation - but the ready access compensates and you still have problems. We still retain our free-will and opportunity for sin.
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Update Sept 7 2013

Levush (O. C. Minhagim #36): It says in Sefer Chassidim (#393), “Where men and women can see each other such as at a wedding meal - one should not say the beracha of shehasimcha bemo’ono. That is beause that there is no joy before G‑d when there sexual thoughts.” However we are not careful to observe this ruling possibly because in contemporary society it is normal for women to be frequently found together with men. As a consequence of this reality, sinful thoughts when seeing women are not so prevalent [as when the sexes were kept separate] because they are viewed neutrally as one would view geese due to the constant habituation. Therefore since it has become normal to violate this concern – it is ignored

Sukka(52a): Abaye explained that the yetzer harah is stronger against sages than anyone else. For example when Abaye heard a certain man say to a woman, “Let us arise and go on our way.” Abaye said that he would follow them in order to keep them from sin and so he followed after them for three pasarangs across a meadow. However they simply parted from each other and he heard them say, “The way is long and the company is pleasant.” Abaye said, “If I were in that situation I could not have withstood temptation.” He went and leaned against a doorpost in deep anguish. An old man came to him and taught him: To the degree that a person is greater than others; to that degree his yetzer (evil inclination) is greater than theirs.

Avnei Milium(Introduction):… Our Sages say that whoever is greater his yetzer is greater. That is because there is no comparison of one who has bread in his basket to one who doesn’t. When the spirit is closed in, it makes a greater effort to break through the restrictions and escape. Therefore one who holds to the path of Torah without letting his lust to express itself – does not have bread in his basket because it is highly unlikely for him to do a really disgusting sin. Therefore his yetzer harah becomes stronger and the power of his lust which is being restrained is aroused to escape the restraints and act. It is different with a person who is not a tzadik since his yetzer harah has bread in its basket. Meaning the yetzer harah has the ability to influence through lust. Since the yetzer harah is not locked in, it doesn’t make efforts to go out. This is what Tosfos (Kiddushin 31a) concerning that the one who is commanded has a greater yetzer. That is the one who is not commanded to do the mitzva has bread in his basket because if he wants he can ignore the mitzva. However it is known that one who gets habituated to constant pleasure that it is no longer pleasing to have the same thing everyday. Therefore the power of lust and its strategies change everyday as is known that the way of drunkards is to search new ways to get pleasure…


Alshech (Vayikra 19:1-2): People have a yetzer harah. To the degree which they control it and sanctify themselves it increases in power. This is expressed by our Sages in (Sukka 52a): “Whoever is greater his yetzer is greater.” Therefore someone who is becoming spiritually great G‑d adds to his holiness  - at first “ruach”. Later as he becomes even greater and his yetzer harah becomes stronger, he is given soul to help him…

Place of Karaites in Modern Israel

NY Times  [...] That means that while most Israelis began celebrating Rosh Hashana at sundown on Wednesday, Karaite Jews are not set to start the Jewish New Year until Saturday — another example of the challenge this ancient sect has in holding on to its traditions in a state where Judaism is dominated by the Orthodox. 

For the Karaites, who split from rabbinical Judaism more than 1,000 years ago, being a couple of days out of sync is a mark of otherness. While most Israelis know little about them, other than to say that they pray “like Muslims,” the Karaites say that the Orthodox authorities — their centuries-old nemesis — have tried to wear them down in an effort to subsume them into the rabbinical mainstream. 

But a new generation of Karaite leaders has taken up the struggle to anchor their place in modern Israel.[...]

Generally, though, the community is estimated at 30,000 to 50,000, out of Israel’s population of eight million. There are also smaller communities in the United States, Turkey and Europe. Most came to Israel from Egypt in three waves starting in 1948, when the state was founded, and 1970. Many live in Ramla or the Mediterranean port city of Ashdod. Others are in smaller concentrations around the country.[...]

Divorce simply because you don't like your spouse - is very recent

Some of the comments dealing with marriage and divorce indicate that it is really primitive and disgusting that a person simply can't leave a marriage because they want to.Whether it is because they fell in love with someone else or because they find their present spouse boring or maybe even embarrassing. That there must be something seriously wrong with halacha because it doesn't acknowledge that the individual is the most important concern - and not the stablity of marriage, society or family. The following is from the Cambridge Brief History of Divorce which indicates these ideas reflect societies views only in the last 30 years. While it is specifically about England - it reflects changes that were happening in the Western World.

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[...] Way back in the days of yore, when the church was more powerful than the monarch, marriage was a church institution and so divorce was also the preserve of the church. Marriage was for life and divorce exceedingly rare, although the church would occasionally grant a divorce “a mensa et thoro” which enabled people to live apart if there had been significant cruelty, but not to remarry. (Henry VIII, of course, did whatever he wanted.) In the eighteenth and early nineteenth century, it was possible to get a divorce granted by Act of Parliament, but such an option was only open to the rich. The Matrimonial Causes Act 1857 was the first divorce law of general application.

The 1857 Act introduced divorce through the court. Men were able to “petition the court” for a divorce on the basis of their wife’s adultery, which would have to be proved, as would the absence of any collusion or condonation of that adultery. Women who wanted to divorce their husbands needed also to prove an aggravating factor of the adultery, such as rape or incest. The High Court in London was the only place to get your divorce, and proceedings were held in open court, enabling society to be scandalised by the personal details revealed during the process.

The huge social changes in England during and following the First World War, particularly for the role of women in society, led to divorce law reform as it did to reforms in other areas. The Matrimonial Causes Act 1923 put men and women on an equal footing for the first time, enabling either spouse to petition the court for a divorce on the basis of their spouse’s adultery. The requirement to prove the deed and the absence of collusion remained, as did the procedural requirements. In 1937 another Matrimonial Causes Act introduced three more options for unhappy spouses to take to court, and so it became possible to divorce on the grounds of cruelty, desertion and incurable insanity as well as adultery. These were termed “matrimonial offences”. As before, each allegation needed to be proved by the petitioner’s oral evidence. At this stage, parliament also introduced a bar to divorcing in the first three years of marriage.

The Second World War brought about another period of great social change, and a start to the modern era of life as we know it now. Marriages broke down under the strain of war, or its after-effects, in numbers never before experienced and at all levels of society. The church and the government became increasingly concerned that the divorce laws were no longer fit for purpose – unhappy couples would arrange for one spouse to book into a hotel at the seaside for a weekend to commit the adultery necessary for them to divorce. A Royal Commission in the 1950s could not decide the best way forward, and in the mid-1960’s the Archbishop of Canterbury took up the baton. His office prepared a report demanding reform of the law to ensure that people could obtain a divorce if they could show the breakdown of their marriage, and the government set the Law Commission to research the most appropriate way to modernise the divorce laws. This process gestated the Divorce Reform Act 1969, which although now consolidated in the Matrimonial Causes Act 1973 still contains the divorce law we are subject to today.

Like a great deal of social policy legislation, the Divorce Reform Act 1969 was a compromise. It enabled either party to seek a divorce on the basis of the irretrievable breakdown of the marriage, as the Archbishop wanted in the 1960s, but requires that the breakdown be proved by evidence of one of five “facts”: adultery, behaviour, desertion, or separation for 2 years and the other party’s consent to a divorce or separation for five years. You can see that although this Act removed the concept of a matrimonial offence, the old 1937 grounds of cruelty (now termed “unreasonable behaviour”) and desertion in essence remained. However, the big advance in 1969 was that there is no “fault” as such involved in petitions based on 2 or 5 years’ separation. Procedurally there were also changes: it was possible for the first time to get a divorce through the local county court rather than coming to the High Court in London. During the 1970s, courts developed the “special procedure” of divorce-on-paper that still represents the way things are done in the vast majority of divorces.

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.

Rav Shteinman against anti iPhone poster campaign

Kikar Shabbat

המלחמה באייפונים: בחודש האחרון מופצים ברחבי השכונות בריכוזים החרדיים שלטים כנגד השימוש ב"אייפון ודומיו".

תחת הכותרת: "אין כניסה לבעלי אייפון ודומיו", מחולקים הכרזות לידי תלמודי התורה שתולים אותם במרפסות הבתים, במקרים רבים אף ללא ידיעת הוריהם.

כעת מתברר כי דעתם של רבים מגדולי הדור אינה נוחה מאותו קמפיין לוחמני המנסה לדחוק לשולי המחנה רבים וטובים בקרב הציבור החרדי....

להפתעתו, השיב לו מרן הגראי"ל כי "עלינו ללמוד מאבות האומה היהודית". ראש הישיבה הוסיף והסביר כי "אברהם אבינו הכניס אליו לאוהל, לביתו, אפילו עובדי עבודה זרה, אלא שרק ביקש מהם לשטוף את ידיהם ולנגבם מאותם גילולים".

הגראי"ל המשיך ואמר כי "לא מצאנו שתלה שלט על ביתו שאין כניסה לבעלי עבודה זרה".

השואל ההמום הבין את המסר והבהיר כי לא יתלה את השלט בביתו.

Pitzu'im (divorce settlement) - Rav Eliashiv vs Rav Shlomo Karelitz

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.)

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?

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.

update From the Principles of Jewish Law by Menachem Elon page 423

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

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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].
 

 [to be continued]


Israeli judge orders brother to pay divorce settlement

Israeli judge orders wife to pay for refusing to accept get

Even violent and sex offenders released early by L.A. County Jail

L.A. Times   More jail inmates in Los Angeles County are being set free after serving only a fraction of their sentences because of budget problems and a space crunch caused by an influx of offenders now serving their terms in county jails rather than state prisons.

The releases are benefiting even inmates sentenced to jail for violence and sex crimes, with those offenders released after serving as little as 40% of the time they were meant to spend behind bars, according to Sheriff's Department records obtained by The Times under the California Public Records Act.[...]

In February, the department cut the terms for men and women incarcerated for more serious crimes, such as assault with a deadly weapon and child molestation, from 65% to 40% of their remaining jail time, according to department figures.

Divorce in Israel: Problem of agunah from spiteful husbands

LA Times   After four years of marriage, Tamar Tessler filed for divorce, taking her infant daughter and embarking on what she hoped would be a new chapter of her life.

Today that daughter is 36 years old — and Tessler is still awaiting the divorce.

Her husband long ago moved to America, said the 61-year-old retired nurse. But under Israeli law, she remains trapped in a defunct marriage that her husband won't allow to end. She can't legally remarry, was obligated as his spouse to repay some of his debts, and lost out on tax breaks for single mothers even though she raised their daughter alone.

Tessler is one of hundreds, perhaps thousands, of Israeli women caught in legal and social limbo because of a law that leaves matters of divorce for all Jewish citizens in the hands of a government-funded religious court.

The court, consisting of a panel of rabbis, bases its decisions on the customs of Orthodox Judaism. The rulings apply to all Jewish Israelis, whether they are Orthodox, Conservative or Reform, observant or secular. And their authority even extends to those who married abroad in civil ceremonies that were registered in Israel. Divorce for non-Jews is handled by their own religious institutions.

Under the court's interpretation of Jewish religious law, a husband's, or wife's, consent is necessary to end a marriage. As has been the case for centuries, a Jewish divorce is not final in Israel until men deliver handwritten divorce decrees into the cupped hands of the women, who then must hold the paper aloft. A rabbi tears the document, called a get, into pieces, which are then filed for record-keeping.

The rabbis can order a reluctant spouse, usually a man, to grant the divorce, and Israel's parliament is considering a bill to expand the court's power to apply pressure. But if a spouse refuses to undertake the religious rite, the court says, it doesn't have the power to dissolve the marriage.

Rabbis have upheld the need for consent even in cases where a man has abused his wife, disappeared, lied about his sexuality or molested their children. [...]