Shabbat Parashat Vayeira | 5768
The Obligation of Spousal Support When the Husband Does Not Have Funds - From Mishpetei Shaul, siman 13 - A Psak Din of Rav Yisraeli - From the works of Rav Yisraeli zt”l
The lower court obligated a man to support his wife despite his claim that he had no money to pay for that purpose. The husband was in the army and had no ability to work beyond that. The lower court had instructed Bituach Leumi (the Israeli parallel to Social Security) to pay her a living allowance, which would accrue as a debt to the husband. His claim was that under such circumstances, a husband should not be obligated to support his wife.
When a couple marries, one of the obligations that devolves on the husband is to support his wife (see Shulchan Aruch, Even Haezer 69: 1-2). We will discuss whether this obligation is the same as the obligation to a creditor or whether it is higher one. However, all are in agreement that it is not less than that which one owes to a creditor. Therefore, it does not disappear when the one who owes (in this case, the husband) is unable to pay it. It is similar to a case of a husband who is abroad and did not leave sufficient funds for his family. In that event, if the woman can find someone to lend her money, she may borrow and the husband must pay it back when he returns (ibid. 70:8). In this case, Bituach Leumi is willing to advance the money, and the husband has to pay it back.
There is a dispute among the Rishonim whether one who is not able to support his wife can be forced to divorce her (see Rama, ad loc.:3). However, even those who say that it is not grounds for divorce do not say that the inability to pay exempts the husband.
The Rishonim argue whether a husband has to hire himself out as a worker in order to have money to support his wife (ibid.). Rabbeinu Tam says that although the ketuba states that the husband will work to support her, it is sufficient to work in his own property. R. Eliyahu says that he even has to hire himself out to others. The Rosh (Shut 48:2) is unsure whether R. Eliyahu’s ruling regards only spousal support or includes any financial obligation. The Rama seems to distinguish between the two; regarding a wife, he brings R. Eliyahu’s position and regarding a loan, he does not (Choshen Mishpat 97:15). Indeed the Gra (ad loc.) says that even R. Eliyahu agrees about regular obligations, as the Ritva also implies.
However, the Shaar Mishpat (97:3) makes a different distinction between the subject matters. The source regarding loans refers to whether one coerces a borrower to work for others, which beit din does not do, whereas the machloket between Rabbeinu Tam and R. Eliyahu deals with whether the obligated has an requirement to do so. That machloket depends on the matter of avoiding being an eved (slave), which is an issue if one is required to work for another. According to R. Eliyahu, that is a problem only if one hires himself out for at least three years. If there is no problem of being required to be hired out, this should be done. If that is the case, then R. Eliyahu’s obligation should apply equally to spousal support and other monetary obligations. According to the Shaar Mishpat, the obligation to a wife would be greater in a different area. If the only problem is being considered like a slave to others, then one could be forced to work in a self-employed manner to support his wife, as the ketuba seems to obligate. We do not find this same requirement regarding other obligations, which relate primarily to one’s funds.
We must reiterate that the discussion is only whether the obligation to one’s wife exceeds that to a creditor, but it is definitely a full monetary obligation. Therefore, in this case, the lower court ruled properly that Bituach Leumi should advance money, which the husband will be obligated to return.
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