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Shabbat Parashat R'ei 5773

P'ninat Mishpat: The Impact of Equitable Distribution on Rights to Ketuba Payment

(based on and article by Rav Ido Rechnitz in Mador Tzedek of Makor Rishon)

Does the demand for a couple’s division of property in secular court preclude payment of the ketuba? Let us take a look from a halachic and legal perspective.

A two-headed apparatus of courts exists in Israel regarding the monetary side of divorce. Rabbinical Courts rule according to halacha; Family Courts rule according to Israeli law. This redundancy and overlapping jurisdiction create several tensions and contradictions. One is the fact that the secular courts generally divide the property equally between the spouses, whereas according to halacha, the property generally belongs to the husband, who is required to pay the wife that which is included in the ketuba.

In case 838835/8 in the Rabbinical Court of Tel Aviv, the husband had turned to the Family Court for division of property, with the wife demanding equitable distribution. At the same time, the wife sued for her ketuba in the Rabbinical Court.

The common practice in Rabbinical Courts is to not allow “double deals.” The batei din wait to see what happens in the secular courts before deciding on the payment of the ketuba. In this ruling, the majority took this approach. However, Rav Heishrik ruled that the wife deserves her ketuba irrespective of the Family Court’s division of property. The machloket between them is an interesting interplay between legal and halachic analysis.

Rav Heishrik started with an analysis of The Law of Monetary Relations, which includes the rule of equitable distribution. Provision 17 says: “This law does not limit rights that exist according to the Law of Family Support or to a woman’s rights to her ketuba.” However, many rabbanim (see Ateret Devora I:47) limit this to cases where the ketuba is greater than the amount she receives from the division; otherwise, one cannot get both. Such a legal phenomenon is found regarding the Law of Inheritance – what a woman receives for her ketuba is deducted from what she gets as inheritance of her husband.

Rav Heishrik distinguishes between the different laws on a few levels. [We will not discuss the linguistic one.] The laws of inheritance are natural and do not stem from the sides’ agreements. Therefore, it is only right that money received for a ketuba be considered regarding inheritance. Division of property is based on assumed agreement. As such, it need not detract from other obligations. Also, inheritance law is a social law to help those who inherit, whereas the Law of Monetary Relations expresses the lawmaker’s outlook on marital life, whereby spouses deserve to share equally. Therefore, there was no intent that this division should affect the ketuba.

From a halachic perspective, the majority opinion considered that since equitable distribution is against halacha, beit din should consider that she received property not due to her, which should be reduced from the money due her for the ketuba. Rav Heishrik reasons that since the couple in question is irreligious and the husband initiated adjudication in Family Court, there is no reason to compensate for money the wife received according to the system of justice they accept.
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