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.).
[...] 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.
