Wednesday, July 27, 2005

Ketubahs Don't Count. Huh?

The Balabusta is in a mood. Apparently, the ketubah is not a legally binding document if it might inconvenience the man whose name appears on it.

That's about all I can figure out from this.

'Show-off' ketubot declared not binding
Jul. 26, 2005

Just before the huppa, in the heat of the moment when passion and commitment peak, the bridegroom may promise the heavens to his beloved, but he does not really mean it, according to what experts called a precedent-making decision by Dayan Shlomo Dichovsky.

Unfortunately, this guy put it in writing. But apparently that does not matter.

In a recent divorce case that came before the Great Rabbinical Court, Dichovsky ruled that a husband who promised to pay his wife NIS 500,000 in their ketuba – the Jewish marriage contract – was swept away by the moment.

He called the sum "exaggerated" and "intended to express the bridegroom's respect for the bride," but lacking any real legal validity. Instead, he set the amount the woman was entitled to receive at NIS 18,000 – after factoring in her right to half of major assets, such as the house, which are owned by the husband.

In other words, not the terms of the ketubah. I am trying to imagine a bais din declaring that the ketubah reflected the bride's respect for the groom but did not mean that she was actually married to him. I especially--and this is where my anger about this is coming from--cannot imagine this being said in a situation in which the wife was seeking a get her husband wanted to withhold. Wouldn't that be EASY?

Prof. Dov Frimer, an attorney and adjunct professor of family law at Hebrew University, said the halachic concept of asmachta was at the center of Dichovsky's reasoning. It describes a situation in which there is a lack of seriousness of intent, a crucial element in both Jewish and civil law needed to form a binding obligation between two parties.

This puts a ketubah on the level of a guy scrawling "I will give Doug my car if the Mets don't win" on the back of a receipt while drunk. This was a ketubah. It was witnessed. How on earth does this man propose to say he wasn't serious? He thought the chuppah was a beach cabana? He thought he was in a play?

Putting Dichovsky's decision in a historical perspective, Frimer pointed out that several decades ago former chief rabbi Shlomo Goren directed rabbis performing marriages not to allow a ketuba of more than NIS 1 million.

Many rabbinic authorities thought Goren had not gone far enough, he said, adding: "Rabbi Dichovsky's ruling takes a major step towards aligning popular custom with the dictates of Jewish contract law and restoring the serious legal character of the ketuba."

I can think of a way to restore the serious legal character! Treat the document as though it were a legal document, and its terms valid. Oh wait, they do. But only if a woman needs to get out of a marriage and her husband won't cough up a get.

It is a common practice, especially among Jews of the Mediterranean region, for the bridegroom and his family to offer exorbitant amounts of money to the bride in a showy expression of affection and esteem. The sum of money is written in the ketuba, which is read aloud under the huppa.

I like regional folk customs. But maybe we could change that one. Instead of writing huge amounts of cash into the ketubah, have the groom stand up in front of the guests and make promises about his behavior as a married man. "Osnat, I love you so much, I will do the dishes every night. You are an angel--I will always pick up my dirty underwear. You are a woman of valor--and so I will take the children to the park every Sunday while you get some rest. We will go to a resort for Pesach every year. My mother will only visit us once a month, and she will call in advance. My dove, my nightingale..." And it wouldn't go into a legal document! It would be the best part of the wedding, as yeshiva bochers struggle to outdo last week's groom in all the helpful things they can think of to do around the house. For the really hard-core, the groom could publicly display his love for the bride by symbolically vacuuming the rug under the chuppah.

In some cases, a rich bridegroom could conceivably be serious about his pledge. But often large sums are touted by young men who are just beginning their professional career.

Rabbi Ratzon Arussi, chairman of the Chief Rabbinate's wedding council, called the decision ground-breaking. But he added that just as Dichovsky protected the man from unreasonable financial demands that threatened to ruin him, so too should the woman be protected.

"If, at the time of marriage, the woman contributes significant sums of money for the purchase of a house, this should be recorded in the ketuba as a dowry," Arussi said.


Attorney Nurit Fish said Dichovsky's decision was a concession to egalitarianism.
"Basically what he was saying was that a women rightfully enjoys equality before the law in the distribution of assets after divorce," she said. "Therefore, less weight should be given to the ketuba."

Less WEIGHT? This is the part that makes me insane. As far as I can tell, the rationale is that a woman has equality before secular law, therefore financial promises given to her in the ketubah can be taken with a grain of salt. The problem here is that halachically a woman does NOT have equality. Husbands have repeatedly been able to withhold gittin, sometimes exacting financial concessions in exchange for giving up their essentially absolute power over the end of the marriage. On these occasions, rabbinic courts have held that there is nothing they can do--essentially because a ketubah is a legal document. Everyone is assumed to have meant what they said, and said what they meant.

But to save this guy's bacon, you should pardon the expression, we will treat the ketubah more as a kind of calligraphied love letter, and less of a binding document.

Look, I think the judge was reasonable enough, and I don't know all about the case. This guy dug himself a hole, and the law was interpreted so he could get out. But I'm going to remember this the next time there's a horrific agunah story, and some rabbi has thrown his hands up and declared himself helpless to help. Women should also be allowed to get out of holes.


Rebeljew said...

Top notch analysis.

The problem is that the ketuba exists only to make it less advantagious for a man to divorce his wife (since halachically he can divorce her without her consent). The agunah issue is more a side result of a man's passivity. He has to go out of his way to free his wife from this status. It is an inherent inequality. Hence, the statement about "equality" in the ketuba is very ironic.

Anonymous said...

When I think of the furor we got from the Orthodox relations when we suggested a (strictly observant) woman witness...and the furor when we had a witness who was a (male) Conservative blood boils.

It was the sheer incomprehension--"But why wouldn't you want a ketubah that every Jew would recognize as a valid legal document?"