Shabbat Parashat Shelach| 5770
P’ninat Mishpat: Obligation to Support Family When Husband Does Not Have Money(condensed from Mishpetei Shaul, siman 13)
Case: A husband (=def) says that, as a soldier, he does not have the ability to support his family. While Bituach Leumi (the Israeli equivalent of Social Security) is willing to forward money to the family, def will owe the money to Bituach Leumi when he is released from the army. He claims that since he has no money now, he should be exempt and not have to incur debt. If his wife (=pl) wants, he is willing to give a get.
Ruling: We must analyze the nature of the obligation to support one’s wife, specifically how it compares to the obligation of other debts and whether it is dependent on the financial resources to pay.
There is a machloket about when a husband is unable to support his wife, whether this is grounds for divorce (Shulchan Aruch and Rama, Even Haezer 70:3). However, neither opinion holds that the obligation falls off, just that the question remains as to what to do in the meantime.
There is a machloket among the Rishonim (cited by the Rama, ibid.) whether a husband must hire himself out to others in order to support his wife. The Rosh (Shut 48:12) is uncertain whether according to Rabbeinu Eliyahu, who says that he must do this, it is a special obligation to a wife, as the ketuba says “I will work …” or whether this applies to all financial obligations. The Rama seems to take the former view, as regarding regular debts he says that a debtor cannot be forced to hire himself out or work in order to pay a debt (Choshen Mishpat 97:15). This is consistent with the Rosh’s understanding that when one hires himself out, it is comparable to selling himself as a slave (which is done only if one steals and does not have from what to pay - see Gra, CM 97:44, who says that R. Eliyahu agrees in this case).
The Sha’ar Mishpat (97:3) makes the following distinction between the presentations regarding debts and regarding spousal support. In the former context, it says that the debtor cannot be coerced to work, whereas in the latter it just says that the husband is obligated, not that he can be coerced. The machloket among Rishonim is whether one may hire himself out in a manner that he cannot back out when the employment period is under three years, but certainly he cannot be forced to do anything. Thus, there may not be a difference depending on the type of obligation is involved.
In any case, the only question is whether the obligation to a spouse is stronger than to another creditor, but it is certainly not weaker. Therefore, there is no reason to think that the obligation should fall off. The halacha regarding another situation where one cannot extract money from the husband, i.e., when he is not around, is that the wife borrows money and the husband must pay when he returns (Shulchan Aruch, EH 70:8). Thus, if Bituach Leumi is willing to lend the money to pl and demand payment later from def, he has no excuse to object.
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This week’s Hemdat Yamim is dedicated in loving memory of
R' Meir ben