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Shabbat Parashat R'ei 5771

P'ninat Mishpat: Paying a Ketuba Before Divorce

(condensed from Shurat Hadin, vol. VIII, pp. 354-359)

Case:   A husband (=def) left his wife (=pl) and is living with another woman. He wants to give pl a get but she refuses it (which Rabbeinu Gershom enables her to do) and wants him to return. Since def has abandoned her, pl wants to receive her ketuba, claiming that abandonment is equivalent to divorce.

Ruling:   Rabbi Akiva Eiger (Even Haezer 93) cites Mahari Halevi (16) as saying that if a man constantly quarrels with his wife and plans to leave her, relatives can take the ketuba from him. The Mahari Halevi refers to a case where he was using up the resources of the ketuba and planning to leave in order to force his wife to accept a get. Although the rule is that a ketuba is not meant for use during the husband’s (and the marriage’s) lifetime, this is like a case of one who owes money whose payment date has not come. Still we say that property can be seized if it is seen that he is being wasteful and property is not expected to exist at the time of payment. The Mahari’s continues that because the husband is acting in a manner that shows that he is planning on divorce, it is considered as if the time for the payment of the ketuba has come.

One can add to the Mahari’s ruling that the idea of having an unpaid ketuba is that the husband should not find it easy to divorce her, but in this case, it is already clear that he plans to divorce her. On the other hand, the Taz (EH 93:1) raises the distinction between this case and that of the wasteful debtor, in that there the money is definitely due, whereas here, the time to pay the ketuba might never come.

The Ein Yitzchak (I, 78) deliberates as to what extent the obligation of a ketuba is from the time of marriage and to what extent it is only from divorce. He decides that it is from marriage, and therefore as soon as the husband does something that will force divorce, she is already entitled to her ketuba. While he is unclear if the obligation should apply to all elements of the ketuba or just the dowry, the Mahari Halevi says that it applies to all. (Although there are times that a woman does not receive a ketuba when she refuses to receive a get, that does not apply in this case- see Shut Maharik 107).

The matter is even clearer since def is now living with another woman, which for all intents and purposes precludes him from living with pl. Even in the rare case where we allow a man to take a second wife, we require him to first give over her ketuba. This is because the woman was originally supposed to hold the ketuba, just that this was stopped because it could encourage the husband to divorce her. However, in this case, that concern does not apply. The Igrot Moshe (EH I, 137, in a related but different context), while not agreeing that intending to divorce is enough to activate a ketuba, does say that it can be made immediately payable if that can prod him to act in the halachically mandated manner. Here, if an obligation to pay the ketuba can stop him from living in a forbidden manner with another woman when he is still married and bound to his wife, this is reason to do so.

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