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July 6, 2015 / 19 Tammuz, 5775
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Posts Tagged ‘ketubah’

Justice For The Agunah

Thursday, June 12th, 2014

Not every marriage is successful. Despite our desire for each to be perfect, we know the truth is there are hundreds of reasons a man and a woman, once joined in love and joy, should no longer remain together. When that happens, Judaism recognizes the need to let the marriage come to an end in a way that allows both husband and wife to grieve for what could have been but wasn’t and then go forward with a productive and meaningful life.

The Torah envisions the reality of our deepest relationships by providing both the road map for marriage – the ketubah – and the mechanism for ending a marriage – the get.

In recent months and years we’ve heard more and more of men – learned, yeshiva-taught men – who withhold gitten from their wives; wives who have a God-given right to be released from their failed marriages. Such cruelty by such men damns these agunot to a non-life.

And it is wrong. Just how wrong can be clearly understood by an examination of the beis din’s elevated role in the community and the holiness of Shabbos and Yom Tov. Simply consider that a beis din does not convene on Shabbos or Yom Tov. At first glance, this would seem obvious. However, it is closed not only for judgment but also for deliberations among the dayanim (judges), even though one could suggest that dayanim deliberating without issuing piskei din (decisions) is little different from talmud Torah.

The Talmud, in Masechet Beitzah (37a), teaches that a beis din does not issue judgments on Shabbos and Yom Tov lest the dayanim be prompted to write p’sak din and thereby transgress the prohibition of ketivah (writing).

The role of the beis din, however, is not only to rule but also to mete out punishment. Further, it is empowered to imprison one whom the dayanim suspect may escape in order to avoid appropriate punishment. It would seem that these beis din actions would be excluded from the Talmud’s prohibition of lo danin, not to issue rulings. These responsibilities and actions require no writing. Yet, quoting Shibolei Haleket,the Rema rules that it is prohibited to punish or imprison on Shabbos and Yom Tov, a ruling founded not on the Talmud’s positions on danin but rather because God ordained that punishments cease on Shabbos and Yom Tov.

As Rambam teaches (Hilchot Shabbat 23:14), “we do not punish on the Shabbos…. if one was sentenced to lashings or to death, we do not mete out the lashings (malkos) or execute him on the Shabbos…” The Shibolei Haleket further ruled that it is likewise forbidden to imprison one who the dayanim fear may try to escape punishment – because imprisonment is also a form of punishment.

The Sefer Hachinuch (Vayakhel) explains the basis of this principle that all are gifted with a day of rest: “…It was the will of God to honor this day, that all should find rest in it, even the sinners and the guilty. A parable teaches that a great king summoned the people of the country to a one-day feast; a feast when he would invite every man, bar none, to the celebration even though immediately after the feast day he would sit in judgment (of some who were present at the feast). So in this matter, Hashem commanded us to hallow and honor the Shabbos day for our good and our merit.”

Even the administration of punishment that may not entail any Chillul Shabbos is forbidden on Shabbos. To imprison one who otherwise might escape punishment is not deliberation of law; it is not adjudication of law, which is rabbinically forbidden; it is not administering punishment, which is biblically forbidden. Yet it is subsumed in the logic and grace of the prohibition to administer punishments – so that all may equally enjoy God’s desire for all to rest, whoever they are.

The Ketubah as a Prenup

Sunday, February 10th, 2013

I was just reading an article in The Forward about a “Jewish prenuptial agreement” being upheld in the American courts.

For the first time, a state court has affirmed the constitutionality of a Modern Orthodox-sponsored prenuptial agreement meant to protect agunot — Jewish women “chained” by husbands who refuse to grant them a religious divorce. Read more.

Maybe I’m wrong, but I have always considered the Ketubah, Jewish Marriage “contract” to be a prenup of sorts.  Actually, it’s not a contract; it’s more of a signed pledge by the husband to give financial compensation to the wife if the marriage must end.

The main purpose of the ketubah is to prevent a husband divorcing his wife against her will, which, in talmudic times, he had the right to do. The knowledge that he had to pay his wife her ketubah would serve as a check against hasty divorce.

The wife promises nothing in return.  The Chabad site adds more information:

The ketubah is a binding document which details the husband’s obligations to his wife, showing that marriage is more than a physical-spiritual union; it is a legal and moral commitment. The ketubah states the principal obligations of the groom to provide his wife with food, clothing and affection along with other contractual obligations.

If the Ketubah would be taken seriously, as an enforceable legal document then there would be fewer agunot, “chained” women awaiting Jewish divorce from their husbands.  And maybe some men would think a lot more before threatening their wives with divorce.

What’s interesting is that the Ketubah actually gives the wife the upper hand in marriage.  It lists what the husband must do and basically takes for granted that the wife will do whatever is expected.  She doesn’t sign the document.

It’s too bad that the Ketubah isn’t taken more seriously in courts, both in Israel and abroad.

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Printed from: http://www.jewishpress.com/blogs/shiloh-musings/the-ketubah-as-a-prenup/2013/02/10/

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