(2008/5768)
Last week, we outlined the classic Halachic approach to the financial relationship between husband and wife. Essentially, Halacha regards the husband as the owner of marital property, with some notable exceptions, as we explained at some length last week. However, at the conclusion of that essay, we raised the intriguing possibility that Halacha recognizes that the financial relationship between husband and wife has changed radically in our times and that this might have profound Halachic implications regarding Bittul Chametz and many other areas of Halacha.
We mentioned that this issue is the subject of an intense debate between two great Dayanim of our time, Rav Shlomo Dichovsky and Rav Avraham Sherman, members of the Israeli Supreme Rabbinic Court. They present their opinions in the eighteenth volume of Techumin and respond to each other’s arguments in the subsequent volume. In this issue, we shall begin to summarize this great debate.
We shall focus on three primary issues involved in this debate: whether the Tenaim signed at the wedding constitute a financial partnership agreement between husband and wife, whether Halacha recognizes and incorporates Israeli civil laws concerning community marital property laws in accordance with the celebrated rule of Dina DeMalchuta Dina (the Halachic obligation to respect the law of the land in which we reside), and whether Halacha recognizes as binding the custom among married couples in the contemporary era to regard their property as a financial partnership.
The Rav Dichovsky-Rav Sherman debate concerns an Israeli secular law enacted by the Knesset in 1973 that views marital property as “community property,” a financial partnership requiring an equal division in case of death or divorce. Professor Ruth Halperin-Kaddari of Bar-Ilan University writes that “The trend in recent years has been to broaden the scope of shared property to include even private assets that belonged to either spouse prior to the marriage or that either spouse inherited” (Women in Israel: A State of Their Own p. 253). From 1973 until 1992, Israeli secular law stated that the community property laws did not apply to cases adjudicated by State of Israel Rabbinic Courts. However, in 1992, Chief Justice Aharon Barak of Israel’s secular Supreme Court ruled that Israeli Rabbinic Courts also must adjudicate disputes in accordance with community property laws. This ruling sparked the major debate between Rav Dichovsky and Rav Sherman as to whether Dayanim can tolerate Judge Barak’s order or must resist it.
Tenaim
Since the time of the Rishonim, Ashkenazic Jews conduct Tenaim (lit. conditions) at first weddings, at which point the in-laws pledge the financial support they will provide the young couple (and the mothers break a plate). Included in this document is a clause stating, “They (the couple) shall not conceal assets from each other and they shall equally control their property.” Rav Dichovsky points to this clause as a precedent for the Halachic recognition of civil communal property. He notes that one of the great nineteenth-century Halachic authorities, the Maharsham (Teshuvot Maharsham 1:45), applies this clause in practice, arguing that it entitles the wife to give a substantial present to her needy sister even without her husband’s consent.
As a precedent, he cites a Rishon, the Maharik, (number 57), who excommunicated a husband who concealed marital assets from his wife; furthermore, the Maharik cited the clause in the Tenaim as the basis for his actions. Maharsham explains that in the time of the Gemara, such action was not taken since the Tenaim at that time apparently did not contain this clause. Indeed, an early twentieth-century authority, Rav Yehuda Leib Graubart of Toronto (Teshuvot Chavalim BeNiimim 5 E.H. 34), rules on the basis of the Tenaim (and Dina DeMalchuta Dina) that a wife in contemporary circumstances shares the same right as her husband to donate large sums of money to Tzedakah.
However, Rav Sherman responds that two major nineteenth-century Halachic authorities do not subscribe to the approach of the Maharsham. Rav Shlomo Kluger (Teshuvot Tuv Taam VaDaat 3:181) objects to the approach of the Maharik since “So many pages of the Gemara and the Shulchan Aruch would be nullified” if the Maharik’s ruling were to be accepted. He asserts that the clause in the Tenaim is merely a blessing bestowed on the couple by the witnesses and the fathers of the bride and groom. He also raises the possibility that the assets mentioned in the Tenaim refer only to the property that the wife brings into the marriage (Nichsei Melog). Rav Yitzchak Shmelkes (Teshuvot Beit Yitzchak E.H. 1:110) also expresses doubt as to whether the clause in the Tenaim is a binding financial agreement or simply poetics (“Shufra DeShtara”).
Moreover, Rav Sherman notes that the Tenaim refer only to the situation when the couple is married. The clause in question gives the wife the right to fully access the family’s assets, he argues, but it does not assign her title or partnership rights in the family’s assets. He points to the concluding sentence of the Tenaim, “They should live together with love and affection,” as evidence that the clause applies only to financial arrangements during the marriage. Finally, the potential impact of the Tenaim is limited, since Sephardic Jews and even some Ashkenazic Jews do not sign this document.
Rav Dichovsky responds by acknowledging that Tenaim do not assign the wife partnership rights to marital assets. However, he explains, the Tenaim teach that the system presented in the Gemara and the Shulchan Aruch for the financial arrangement in marriage is not immutable and is subject to change in favor of more rights for the wife. Rav Dichovsky simply seeks to prove that the Israeli civil law concept of community property is not a “foreign implant within the vineyard of Israel.”
Interestingly, Rav Graubart writes that this rule does not apply if the bride and groom (and their fathers) clearly do not understand Hebrew and therefore did not understand the Tenaim. His basis is a ruling of the Rama (E.H. 66:13), who states that an unlearned individual who comes to divorce his wife cannot disclaim his Ketubah obligation based on the argument that he did not understand the document when he consented to its provisions, for we assume that the witnesses certainly did not sign the Ketubah without first explaining it to the groom. Rav Graubart infers that if one can prove that the document was not translated to the groom, it does not take effect.
Rav Sherman, on the other hand, cites Teshuvot Rav Betzalel Ashkenazi (number 24), who rules that if the groom actually signed the Ketubah or Tenaim, he cannot claim that he did not understand the document he signed. Rav Sherman writes that Israeli rabbinic courts accept this ruling in practice, as recorded in Rav Ovadia Yosef’s Teshuvot Yabia Omer 3:13:1 and Piskei Din Rabbaniyim 1:293-295.
Dina DeMalchuta Dina
The Gemara (Gittin 10b and elsewhere) presents the principle of Dina DeMalchuta Dina, which obligates us to honor the laws of the country in which we reside. Thus, Halacha obligates us to pay taxes in accordance with local laws (see the many sources cited by Rav Ovadia Yosef in his Teshuvot Yechaveh Daat 5:64). However, the scope of this principle remains a matter of unresolved debate. One unsolved matter is the question as to whether a Beit Din should follow civil laws in adjudicating financial disputes between Jews when such laws contradict Halacha. The Rama (Choshen Mishpat 369:11) rules that if such laws are made “for the betterment of society,” the Beit Din must honor them. The Shach (C.M. 73:69), on the other hand, rules that civil laws that do not conform to Jewish financial law never should be applied by Beit Din in resolving disputes between two Jews.
Rav Dichovsky cites prominent nineteenth- and twentieth-century authorities who endorse the view of the Rama. The Chatam Sofer (Teshuvot Chatam Sofer C.M. number 44) rules that government rules prohibiting the number of wine distributors in a certain region should be honored in Beit Din despite the fact that Halacha imposes no such restrictions. Rav Meir Arik (Teshuvot Imrei Yosher 2:152:2) maintains that Beit Din must honor civil laws prohibiting landlords from expelling tenants from an apartment at the termination of the lease. Rav Moshe Feinstein (Teshuvot Igrot Moshe C.M. 2:62) asserts that Halacha recognizes the validity of civil bankruptcy laws that undoubtedly contradict Halachic norms. Rav Dichovsky argues that Beit Din should also recognize civil common property laws, since the civil authorities make these laws for the benefit of society.
Rav Sherman responds that civil communal property laws are not enacted for the betterment of society. He cites the writings of Israel’s Chief Justice Aharon Barak (who is well-known or infamous, depending on one’s opinion, for legislating secular values from the bench) to the effect that these laws are enacted to inculcate within society the secular belief that males and females are exactly the same. Rav Sherman notes that these laws often are unfair to husbands, as on one hand they must support their wives and pay medical and clothing expenses, but on the other hand the wives are entitled to half of their husbands’ earnings despite not being required to work outside the home. Rav Sherman goes as far to compare such judicial activism to the attempts of the leaders of the Soviet Union to enact revolutionary laws to force social change, which proved unsuccessful. Rav Itamar Warhaftig (Alon Shevut 92:39) writes that an unscrupulous wife could be motivated to divorce by the communal property rules, especially if marital assets are large. Thus, the communal property laws are far from being a law that serves to better society, since they actually could undermine society. In fact, most states in the United States do not have community property laws, because in many cases they can lead to dramatically unfair results. Rather, most states use equitable distribution laws, which we shall discuss further next week.
Rav Sherman applies a thirteenth-century ruling of the Rashba (cited as normative by the aforementioned Rama), who writes that Beit Din must not adopt the civil laws that mandate that the bride’s father recovers the dowry in case the wife dies within the first year of marriage. Rashba sharply condemns any Dayan who would adopt civil law on this matter, asserting that such a judge “collapses the walls of Torah and eliminates the roots and branches [of Torah], and the Torah will demand justice from his hand.” Rashba believes that such internal matters of dispute between Jews must be resolved in accordance with Halacha, not by adopting a foreign legal system whose values differ from our own. Rav Sherman believes that the Rashba’s strong rebuke applies equally to a Beit Din that adopts civil communal property laws.
Even without utilizing communal property laws, Dayanim can insure that a divorced mother is taken care of by ordering the husband to provide support for her and her children even after the divorce. A Beit Din could award such money, even though it is not mandated by Halacha, based on the idea of “divorce compensation,” which a Beit Din can issue “using its authority of discretion (as provided for in many Beit Din arbitration agreements) as appropriate to all the circumstances involved and in accordance with the size of the marital assets and the economic situation of the parties” (Piskei Din Rabbaniyim 1:137). An example of this approach would be a case where the marital assets total ten million dollars. A Beit Din may award twenty to thirty percent of the assets to the wife to insure her maintenance, obviating the need to resort to communal property laws. We should note, however, that Rav Yosef Shalom Eliashiv, a leading Halachic authority of our times, does not accept the approach of divorce compensation (Piskei Din Rabbaniyim 7:111, 8:36 and 9:65).
Conclusion
It seems that Rav Dichovsky’s arguments from Tenaim and Dina DeMalchuta Dina do not support his arguments that Dayanim can cooperate with Judge Barak’s order to enforce secular community property laws. Next week, we shall (IY”H and B”N) complete our discussion of this monumental debate by exploring whether common practice constitutes adequate grounds to allow Halacha to assimilate secular community property laws.