Shabbat Parashat Balak| 5770
P’ninat Mishpat: The Status of Presents Between a Couple When the Marriage Proves Unviable(condensed from a Supreme Court ruling by Rav Shaul Yisraeli - Mishpetei Shaul, siman 18)
Case: In a previous court case, a wife demanded spousal support, and the husband responded that after transferring his portion of their joint apartment, she expelled him from the home and hit him. He wants reconciliation, if she is willing to treat him civilly, which is what beit din ruled should be attempted, but she refused over a long period of time. The husband now demands back his part in the apartment.
Ruling: The regional court ruled that the wife does not have to return his part in the home because presents are permanent, even if subsequently the relationships sour (based on Shulchan Aruch, Even Haezer 99:2). The exception is special clothes and the like that were given just to beautify the wife in his presence (commentators, ad loc.). Another exception, when the wife is a moredet (refuses to take part in conjugal relations), does not apply because all agree that the husband is impotent.
There is another reason for her to not keep the present, based on a comparison to the laws of moredet (even though she is not fully a moredet). Whereas a moredet loses her ketuba as a sanction, that which she returns presents is based on the logic that he did not give them under such circumstances (Gra, EH 77:28). Although she loses the presents only after 12 months when she becomes a moredet, that is because until then we give her time to change her stand, but after that time the loss of presents is not based on the status of moredet. It is for that reason that when a woman claims that her husband is despicable in her eyes, she has a right for a get, yet she does not keep that which he gave her. That which the Shulchan Aruch (ibid.) says that she keeps her presents is when, from her perspective, she is willing to continue with him, even if it is difficult to do so. In a case, though, that she consistently refuses reconciliation, she does not retain the presents. Thus, the husband gets back his portion of their joint home.
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In memory of
The Rishon Letzion
Rav Mordechai Eliyahu ztvk”l
This week’s Hemdat Yamim is dedicated in loving memory of