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Shabbat Sukkot 5772

P'ninat Mishpat: Authority of Beit Din to Grant a Wife Living Rights in a Specific Home

(condensed from Shurat Hadin, vol. VIII, pp. 557-559)

[We will now see another issue that often is the source of friction between the batei mishpat (secular courts) and the batei din (religious courts).]


Case: A married couple is separated. The husband (=pl) went to beit mishpat to order a division of property, according to which, their joint home will be sold and the money divided between the sides. The wife (=def) sued in beit din to protect her right to stay in the home for the indefinite future, to which beit din acquiesced. Pl appealed to the Supreme Rabbinical Court with the claim that beit din is not authorized to stop the implementation of the ruling of the beit mishpat.


Ruling: The ruling of the beit mishpat states that the sale is to be done only after a solution has been found for living quarters for def and the couple’s daughters in the proper court. Since the beit mishpat did not determine that it is the place to decide that matter, such questions related to the needs of a still married spouse are within beit din’s right and obligation to handle. The Shulchan Aruch (Even Haezer 73:7) equates a wife’s needs in regard to living quarters to her rights in regard to food. While it is possible to learn that equation in a limited manner, the more inclusive interpretation of the Shulchan Aruch is correct, and therefore beit din must determine if pl’s proposals of living quarters meet his obligations to def, who is still his wife.

One of pl’s suggestions is that def take her half of the future sales money and buy a small apartment for her and the daughters. There is a general rule regarding the lifestyle of a wife that “she goes up with him, and does not go down with him” (see Tur, EH 70). In other words, if she has gotten used to a certain standard of living while living with her husband, he may not make her settle for a lower standard of living. That which it says that a woman can be given tiny living quarters (Shulchan Aruch, EH 73:2) is true only in cases where the husband is impoverished (see Rambam, Ishut 13:5).

Pl’s other suggestion, that def rent a nice-sized apartment with proceeds from the sale is not valid either. This is because going from an owned home to a rented one is also taking a serious step down in standard of living. In a rented apartment, a tenant has to live with the possibility that the landlord will require her to move out at the end of some period of time. Even if the present home were to be totally under pl’s ownership, he could not require def to leave and accept a worse living arrangement.

Therefore, the Supreme Rabbinical Court accepts both the jurisdiction and the content of the regional beit din’s ruling.

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