גריי מאטר ג, בית דין, יחסים ממוניים בנישואין לאור ההסדרים המודרנייםGray Matter III, Beit Din, Marital Finances in Light of Contemporary Arrangements
א׳
1An Erev Pesach Debate
ב׳
2I experienced an eye-opening interaction on erev Pesach 5767. I joined a gathering of rabbis who assembled in the office of a leading Rav in New Jersey for the sale of chametz. At that time, close to the fifth halachic hour of the day (when it becomes forbidden to benefit from chametz), I phoned my wife to remind her to nullify her chametz (bittul chametz). The other rabbis present expressed their astonishment that I asked my wife to perform bittul chametz. Their reaction stemmed from the Shulchan Aruch’s (O.C. 434:4) ruling indicating that a wife recites bittul chametz only in a situation in which her husband did not perform the bittul.
ג׳
3The basis for the Shulchan Aruch’s uncontested approach is that traditionally, the husband was considered the owner of the marital property. This idea is expressed in part by the Talmudic principle (Gittin 77b), “Mah she’kantah ishah kanah ba’alah” (what a woman acquires automatically comes into the ownership of her husband). In fact, the Mishnah Berurah (434:19) writes that in the unusual case in which a wife does proclaim the bittul, she should state that she nullifies “all of the chametz in my husband’s domain”, not “all of the chametz in my domain,” since Halachah regards marital property as belonging solely to the husband.
ד׳
4I responded that this Halachah might be different today, since contemporary society regards marital property as jointly owned.1Of course, this varies from couple to couple and locale to locale. For example, some couples keep their assets in separate accounts, while others keep everything in joint accounts. Some places (such as Israel, many European countries, and some states in the United States) have community property laws in which civil law views assets owned by either spouse as joint marital property, while other places do not have such laws. Still other locales employ equitable distribution laws, which, simply put, are a modified version of community property laws. In addition, these laws do not apply if the couple signed a prenuptial agreement specifying that either party retains ownership of property owned before the marriage. The local civil law regarding the ownership of marital property during a marriage (not only in case of divorce) also must be considered. In general, Halachah takes contemporary practices into consideration in regard to monetary matters (see, for example, Bava Metzia 74a and 83a). With regard to money, there is much more flexibility than in other areas of Halachah, as the Gemara (Bava Metzia 94a) presents the accepted opinion of Rabi Yehudah that “B’davar sheb’mamon tena’o kayam” (a condition in the context of monetary law is valid).” Generally speaking, one may dispose of his money as he sees fit, and one may arrange his monetary affairs even in contradiction to Halachah. A classic example is a lender and borrower who agree that the borrower’s responsibility regarding the borrowed item applies only to the extent of an unpaid watchman (shomer chinam; see Bava Metzia ad. loc. and Gray Matter 2 pp. 170-171).
ה׳
5Indeed, Rav Shlomo Dichovsky of Israel’s Supreme Rabbinic Court insists that Halachah recognizes and incorporates Israeli civil community property laws. I reasoned that according to this approach, my wife and I jointly own the chametz, and therefore both of us should preferably recite bittul chametz. Even though bittul chametz can be accomplished by one’s agent (Shulchan Aruch O.C. 434:3), the Gemara (Kiddushin 41a) articulates a principle, “A mitzvah is greater when done by oneself than when done by his agent.” Hence, I remind my wife every year to recite bittul chametz.
ו׳
6The other rabbis assembled (with the notable exception of one veteran Rav who commented that he thinks that I might be correct), on the other hand, replied that they believed that mah she’kantah ishah kanah ba’alah still applies despite the change in contemporary society.
ז׳
7This debate reflects a much larger debate that currently rages among poskim and dayanim as to whether this Talmudic principle applies in the current social circumstances and milieu. In this section, we shall present this debate and its manifold halachic applications, of which bittul chametz is but one of dozens. We shall begin by outlining the basic rules regarding the classic financial relationship of a husband and wife as presented by Chazal.
ח׳
8A Husband’s Obligations and Entitlements
ט׳
9The Rambam (Hilchot Ishut 12:1-4) presents ten obligations Halachah demands from a husband, three of which are of biblical origin and seven of which are rabbinic enactments. The three Torah obligations are to provide food, clothes, and intimate relations for his wife (see Shemot 21:10 and Rashi ad. loc.). The seven rabbinic obligations are paying her ketubah money in case of death or divorce, paying her medical bills if she is sick, redeeming her if she is taken captive (a phenomenon not unheard of in the time of the Gemara and in certain countries even today), burying her if she dies, supporting her from his estate and allowing her to live in his house if he predeceases her,2She does not, though, inherit him. For ways of allowing a wife to inherit, see our later section about setting up halachically valid wills. supporting their daughters from his estate until they marry, and allowing the male children from their marriage to inherit her ketubah (ketubat banin dichrin). Halachah entitles a man to four items from his wife: her earnings (ma’aseih yadayim), whatever lost items she finds (metzi’ah), the income generated by the property that she brings into the marriage during her lifetime (nichsei melog), and the priority to inherit her if she predeceases him.
י׳
10Chazal also instituted, the Rambam continues, that three of each partner’s respective obligations be formulated as quid pro quo arrangements. The husband is entitled to his wife’s ma’aseih yadayim in exchange for supporting her, to benefit from her nichsei melog in exchange for redeeming her, and to inherit her in exchange for burying her.
י״א
11The Wife’s Property
י״ב
12Halachah divides a wife’s property into three sections (see Shulchan Aruch E.H. 85 and Pitchei Choshen volume 8). The first part is the nedunyah (dowry), which is categorized as nichsei tzon barzel (“iron sheep property”).3It is referred to as “iron sheep property” because its value does not vary. The nedunyah is, generally speaking, listed in the ketubah and assigned a value. The husband assumes the financial responsibility for this property, and upon his death or divorce, the nedunyah is returned to the wife, either in its original form or as its assigned value in the ketubah, regardless of whether that value has appreciated or depreciated.
י״ג
13Nichsei melog (“property that is plucked”)4It is so called because the husband may “pluck” this property and keep the revenue thereby generated, such as dividends from stocks or rent for an apartment. is all other property that a wife either brings into the marriage (though not listed in the ketubah) or acquires during the marriage. The wife retains title to the nichsei melog, but the husband is entitled to benefit from it during the wife’s lifetime (provided that he does not mismanage it) and potentially inherit it (if she predeceases him).
י״ד
14Additionally, a wife can own her own property in a marriage. This occurs either when she is gifted the money on condition that the husband enjoys no rights to this property or if the husband waives his rights to the property.
ט״ו
15The Ketubah
ט״ז
16Chazal (Ketubot 11a) instituted the ketubah-obligation to be paid in case of divorce “so that it should not be light in his eyes to divorce her.” This concern was particularly relevant in the era prior to the enactment of cheirem d’Rabbeinu Gershon, which forbade a husband to divorce his wife against her will. The ketubah money was intended to be a very significant sum that in practice constituted a significant disincentive to divorce a woman against her will (as is clear from Gittin 58a, Rama E.H. 119:6, and Pitchei Teshuvah E.H. 154:27). The ketubah also is paid if the husband predeceases the wife so that she will have money to live off before she remarries.
י״ז
17As is apparent from a study of Masechet Ketubot, the ketubah also serves as a potent tool for beit din to prod a spouse to behave appropriately. If a husband misbehaves, beit din can warn him that if he does not mend his ways, he will be pressured to divorce his wife and pay her the ketubah. If a wife is not acting properly, she may be warned that if she persists, her husband can divorce her without the ketubah payment.
י״ח
18In case of his death or a divorce in which the wife is not at fault, she receives the nichsei melog she brought into the marriage, the nedunyah itself or its original value as set forth in the ketubah, and the value of ketubah itself (which traditionally was substantial). She also retains, of course, any property designated as her private property. The husband, on the other hand, takes all the money generated in the course of the marriage.
י״ט
19The monetary arrangements between a husband and wife allow for an even distribution of obligations and rights. A man works hard for his family, and thus the family’s financial assets are in his control. A woman needs to focus her attention on the family, and thus she is relieved from the burden of generating income and managing investments to support the family. In case of death or divorce, she is provided for with the provisions of the ketubah.
כ׳
20Even during the course of a marriage, there are ramifications of the fact that Halachah regards the marital property to be in the sole possession of the husband. For instance, a wife is not permitted to donate significant mounts of money to tzedakah without her husband’s consent (Shulchan Aruch Y.D. 248:4), while a husband has no such limitation. In regard to ritual matters, the home and marital property belong to the husband, and for this reason it is the husband who must nullify the chametz.
כ״א
21Contemporary Application
כ״ב
22Applying these rules to the contemporary situation is far from simple. The value of the ketubah as set forth in the Mishnah (Ketubot 1:2) is exceedingly low by contemporary standards and hardly serves as ample means of supporting a woman in case of death or divorce. According to Rav Moshe Feinstein (Teshuvot Igrot Moshe E.H. 4:91-92), the Ashkenazic ketubah is valued at one hundred pounds of silver, which in January 2008 amounted to $21,870.5For alternative views regarding the value of the ketubah, see Techumin (25:180-194). Indeed, Rav Hershel Schachter (at a conference of the Council of Young Israel Rabbis) articulated6Rav Schachter told me that Rav Yitzchak Herzog already made this point more than fifty years ago. the need to update the value of the ketubah, but there has been no movement to implement his suggestion.
כ״ג
23In addition, the Ashkenazic ketubah is a standard document, and a list and an evaluation of the nedunyah is not made. Furthermore, many couples list their real estate and financial assets, such as stocks and bonds, as jointly owned between the husband and wife.7Some professionals even list all of their assets in their wives’ names to make them “judgment-proof” (i.e. they cannot be sued for malpractice, since technically they do not own any assets). Moreover, most women, at least at some point in the marriage, earn a substantial salary from a job that entails considerable responsibilities. Today, a wife is expected to assume some of the responsibility for the household finances. These considerations may call for a reevaluation of the responsibilities and rights of spouses towards each other in the contemporary setting.
כ״ד
24This issue is the subject of an intense debate between two of the great dayanim of our time, Rav Shlomo Dichovsky and Rav Avraham Sherman, members of the State of Israel Supreme Rabbinic Court.8They present their opinions in the eighteenth volume of Techumin and respond to each other’s arguments in the subsequent volume of that Torah journal. We shall focus on the three primary issues involved in this debate: whether the tena’im signed at the wedding constitute a financial partnership agreement between husband and wife, whether Halachah recognizes and incorporates Israeli civil community property laws in accordance with the celebrated rule of dina d’malchuta dina (the halachic obligation to respect the law of the land in which we reside), and whether Halachah recognizes the custom among many married couples in the contemporary era to regard their property as a financial partnership.
כ״ה
25The original debate concerns Israeli secular law, which since 1973 views marital property as “community property,” meaning a financial partnership requiring an equal division in case of divorce. From 1973 until 1992, Israeli secular law stated that the community property laws do 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 State of Israel Rabbinical Courts must also adjudicate disputes in accordance with community property laws. This sparked the huge debate between Rav Dichovsky and Rav Sherman as to whether dayanim can tolerate Justice Barak’s order or must resist it.
כ״ו
26Tena’im
כ״ז
27Ashkenazic Jews since the time of the Rishonim have conducted tena’im (lit. conditions) for first marriages, in which the in-laws pledge the financial support they will provide the young couple. Included in this document is a clause stating, “They (the newlyweds) 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 community property. He notes that one of the great nineteenth-century halachic authorities, the Maharsham (Teshuvot Maharsham 1:45), applies this clause in practice, claiming that it entitles the wife to give a substantial donation to tzedakah even without her husband’s consent.
כ״ח
28As a precedent, the Maharsham cites the Maharik (57), who excommunicated a husband for concealing marital assets from his wife. The Maharik cited the aforementioned clause in the tena’im as the basis for his action. The Maharsham explains that such action was not taken in the times of the Gemara since the tena’im in that time apparently did not contain this clause. Indeed, Rav Yehudah Leib Graubart (Teshuvot Chavalim Ban’imim 5 E.H. 34), rules on the basis of this clause in our tenai’im (and dina d’malchuta dina of early-twentieth-century Canada) that a wife in contemporary circumstances shares the same right as her husband to donate large sums to tzedakah.
כ״ט
29Rav Sherman responds, however, that two major nineteenth-century halachic authorities do not subscribe to the approach of the Maharsham. Rav Shlomo Kluger (Teshuvot Tuv Ta’am Vada’at 3:181) objects to the approach of the Maharik since “so many pages of the Gemara and Shulchan Aruch would be nullified.” He asserts that the clause in the tena’im is merely a blessing bestowed on the couple by the fathers of the bride and groom and the witnesses. He also raises the possibility that the assets mentioned in the tena’im refer only to the nichsei melog. Rav Yitzchak Shmelkes (Teshuvot Beit Yitzchak E.H. 1:110) also expresses doubt as to whether this clause in the tena’im is a binding financial agreement or simply poetics (“shufra d’shtara”).
ל׳
30Moreover, Rav Sherman notes that the tena’im refer only to the time that the couple is married. It gives the wife the right to fully access the family’s assets, he argues, but does not assign her title or partnership rights in said assets. He points to the concluding sentence of the tena’im - “They should live together with love and affection” - as evidence that the clause applies only to financial arrangements during the marriage, not to the ownership of the assets. Finally, even if the tena’im were to be regarded as binding under all circumstances, their potential impact is limited, since Sephardic Jews and even some Ashkenazic Jews do not sign this document.9Rav Hershel Schachter (Mip’ninei Harav p. 213) records that Rav Yosef Dov Soloveitchik advised against signing tena’im, even immediately before a chuppah (as is the practice in some circles), due to concern for the severe cheirem against canceling tena’im.
ל״א
31Rav Dichovsky responds by acknowledging that tena’im do not assign partnership rights to the wife in the marital assets. However, he explains, it teaches that the system presented in the Gemara and Shulchan Aruch for the financial arrangement in marriage is not immutable and is subject to change in favor of more financial 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.”
ל״ב
32Dina D’malchuta Dina
ל״ג
33The Gemara (Gittin 10b and elsewhere) presents the principle of dina d’malchuta dina. Thus, Halachah obligates us to pay taxes in accordance with the local laws (see the many sources cited by Rav Ovadia Yosef in Teshuvot Yechaveh Da’at 5:64). However, the scope of this principle remains a matter of unresolved debate. One unsolved matter is the question of whether a beit din should follow civil laws in adjudicating financial disputes between Jews when such laws contradict Halachah. The Rama (C.M. 369:11) rules that if such laws are made “for the betterment of society,” the beit din must honor such rules. The Shach (C.M. 73:69), on the other hand, rules that civil laws that do not conform to Jewish financial law should not be applied by beit din in resolving disputes between two Jews.
ל״ד
34Rav Dichovsky cites prominent nineteenth- and twentieth-century authorities who endorse the view of the Rama. The Chatam Sofer (Teshuvot Chatam Sofer C.M. 44) rules that government rules prohibiting the number of wine distributors in a certain region should be honored in beit din even if Halachah imposes no such restrictions.10Interestingly, the Chatam Sofer emphasizes that if the government had not imposed this restriction, the local beit din would have, since it is such a logical and beneficial rule. It is thus not entirely clear that the Chatam Sofer would require following dina d’malchuta dina if a monetary law is made that contradicts Halachah, even if it is for the betterment of society, if it would not have been imposed by the local beit din. Rav Meir Arik (Teshuvot Imrei Yosher 2:152:2) rules that beit din must honor civil laws prohibiting landlords from expelling tenants from an apartment at the termination of the lease.11Rav Arik argues that perhaps even the Shach would agree that disputes relating to land should be governed by dina d’malchuta dina, since the government has ultimate control over the land. Rav Moshe Feinstein (Teshuvot Igrot Moshe C.M. 2:62) rules that Halachah recognizes the validity of certain aspects of civil bankruptcy laws, which undoubtedly contradict halachic norms. Rav Dichovsky argues that beit din similarly should recognize civil common property laws, since the civil authorities make these laws for the benefit of society.
ל״ה
35Rav Sherman responds that civil community property laws are not enacted “for the betterment of society.” He cites from the writings of Israel’s Chief Justice Aharon Barak (who issued the decision requiring batei din to honor such laws) that these laws are enacted to inculcate within society the secular belief that males and females should be treated in exactly the same manner. Rav Sherman notes that these laws often are unfair to husbands, as on one hand they must support their wives and pay their medical and clothing expenses, but on the other hand they must cede half of their earnings even though their wives are not required to earn money to support the family. Rav Itamar Warhaftig (Alon Shevut 92:39) writes that an unscrupulous wife could be motivated to divorce by the community property rules, especially if the marital assets are large. Thus, far from being a law that serves to better society, it could actually undermine society. In fact, most states in the United States do not have community property laws precisely because in many cases they can lead to dramatically unfair results. Instead, most states use equitable distribution laws, which we shall discuss below.
ל״ו
36Rav Sherman applies a ruling of the Rashba (cited as normative by the aforementioned Rama), who writes that beit din must not adopt the civil laws that state that a father recovers the dowry of his daughter if she dies within the first year of her marriage. The Rashba denounces the adoption of such laws, stating that any dayan who would accept the civil law on this matter “collapses the walls of Torah and eliminates the roots and branches [of Torah], and the Torah will demand justice from his hand.” The Rashba believes that such internal matters of dispute between Jews must be resolved in accordance with Halachah, not by adopting a foreign legal system whose values differ from ours. Rav Sherman believes that the Rashba’s strong reproof applies equally to a beit din that adopts civil community property laws.
ל״ז
37Even without utilizing community property laws, dayanim can ensure that a divorced mother is assured of financial support 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 Halachah, 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).12We should note that Rav Yosef Shalom Eliashiv does not accept the approach of divorce compensation (Piskei Din Rabbaniyim 7:111, 8:36, and 9:65).
ל״ח
38Minhag Hamedinah
ל״ט
39Halachah grants much flexibility regarding monetary law if both parties consent. Moreover, if a community has adopted a particular practice regarding a monetary matter, common custom, generally speaking, overrides Halachah (minhag mevateil halachah; see Yerushalmi Bava Metzia 7:1). A classic example is presented in the Mishnah (Bava Metzia 6:1), which states that an employer cannot insist that his employees work from dawn to dusk if the local custom among hired workers is not to work such hours.
מ׳
40This rule has particular relevance to the manner of paying the ketubah in case of death or divorce. The Rambam (Hilchot Ishut 23:12) and Shulchan Aruch (E.H. 66:11)13These comments appear in the context of how much money should be assigned in a ketubah. specifically state that “In all of these matters and those like it, common local custom is a central pillar, and we adjudicate disputes on this basis” unless expressly stipulated to the contrary. One may assume that those who marry or enter in any other relationship without stipulations intend the relationship to function in accordance with the local common custom.
מ״א
41Indeed, the Chazon Ish (Likuttim C.M. 16:1) states that even in cases in which the rule of dina d’malchuta dina does not apply, nonetheless “the law of the land determines the intentions” of the parties to an agreement. Thus, in dealing with a corporation, one may assume that the parties intend to follow the local laws regarding corporations despite the fact that these laws do not conform to Halachah.14See Techumin 26:357-361 for a 2005 ruling of the Tiberias beit din on this subject.
מ״ב
42Rav Dichovsky, in turn, argues that the minhag hamedinah regards the marital relationship as a full financial partnership. He writes:
מ״ג
43The practice, even in Chareidi families – including the families of eminent Torah authorities – is to view the wife as an equal to her husband in the family’s assets. This is expressed in the listing of both spouses as joint owners of the marital residence, by the fact that marital assets are bought and sold only upon mutual consent, and with the bequeathing of the marital estate to the wife. I have probated thousands of wills [as a State of Israel rabbinic judge], including the wills of the most Chareidi families, and I have not found even one of them in which the wife has been requested to forgo her share in the estate in favor of the halachic heirs, with the exception of a second marriage and cases in which the husband died shortly after the wedding….I do not understand why we must object to enforcing community property laws during the husband’s lifetime (i.e. in case of divorce) but consent to it after his death….I believe that the concept of community property has been accepted by Torah-observant families, including the families of practicing dayanim. Every one of us [dayanim], and I say this with certainty, views his wife as a full partner in the family’s assets. Civil courts have not conceived the idea of community property based on an ideology that is antithetical to Torah values; rather, [their rulings] reflect the reality of contemporary families, including Chareidi families.
מ״ד
44Rav Sherman’s Response
מ״ה
45Rav Sherman, on the other hand, notes that the aforementioned Rambam and Shulchan Aruch confine following minhag hamedinah to a situation in which “that custom has been accepted throughout the community.” One may assume that the parties implicitly consent to the common practice only if it is indeed common practice. Rav Sherman argues that it is not widespread practice among all families to manage their assets as an equal partnership. Moreover, involving one’s wife in decisions regarding the family’s finances does not imply that ownership of the assets has been transferred to her.
מ״ו
46Rav Dichovsky responds that what applied during the marriage cannot be reversed in case of divorce. He bases this on the opinion of the Geonim (cited in the Pitchei Teshuvah E.H. 99:7) that if one gifts an item to one’s wife and the marriage later sours, the husband is not entitled to recover the gift. The Geonim compare this to one who presents a gift to a friend. If the friendship later dissolves, he cannot reclaim the gift with the argument that had he known they would become enemies, he never would have gifted the item.
מ״ז
47The story that introduced this essay, in which almost all of those assembled to sell chametz were astonished that I asked my wife to nullify her chametz, seems to indicate the inaccuracy of Rav Dichovsky’s assertion that all communities accept the notion that a husband and wife today are financial partners on an equal footing in the couple’s financial assets.
מ״ח
48Explicit Agreement to Split Assets Based on Community Property Laws
מ״ט
49Rav Sherman goes so far as to rule that Halachah does not recognize community property laws even if both the husband and wife commit in writing to divide the marital assets based on community property laws. Rav Sherman argues that such an agreement violates the prohibition to adjudicate disputes in civil courts. Rav Dichovsky strongly disagrees with this point. In fact, based on a ruling of Rav Zalman Nechemia Goldberg (Lev Mishpat 1:286), the prenuptial agreement endorsed by the Rabbinical Council of America offers the option for a couple about to marry to agree to divide marital assets based on community property laws (or equitable distribution laws) at the time of the signing of the document.15See Gray Matter 2 pp. 170-172 for a fuller discussion and analysis of this ruling.
נ׳
50The Response of Other Dayanim
נ״א
51Rav Dichovsky (Techumin 26:157) concedes that many dayanim have not accepted his approach to communal property. Indeed, Rav Zalman Nechemia Goldberg (cited in Hadarom 70-71:146), considered one of the leading authorities regarding monetary matters, does not seem to accept Rav Dichovsky’s ruling unless the couple explicitly accepted the community property laws in effect on the day of the signing of the agreement. Rav Yaakov Ariel does not accept Rav Dichovsky’s approach due to the inequity of community property laws, although he acknowledges the halachic ramifications of the change in the manner in which spouses manage their collective finances (as we shall discuss below).
נ״ב
52Four Fair Alternatives to Community Property Laws
נ״ג
53There remain at least four alternative means of dividing marital assets without resorting to secular community property laws. A variation of community property laws, known as equitable distribution, is employed by many states in the United States. Equitable distribution is not equal distribution - it means that marital assets are divided fairly. It could be divided fifty-fifty, but it also could be split in a more disparate fashion. Among the factors considered (the factors vary from state to state) are the duration of the marriage, spousal abuse or marital infidelity, economic fault of one spouse in wasting and dissipating marital property, amount of work each did to acquire the property, the respective responsibilities for providing for children of the marriage, earning power of each party, the contribution of a party as a homemaker, and the extent to which a party deferred achieving career goals in order to build the marriage and marital assets. Rav Ronald Warburg reports that some dayanim will employ civil equitable distribution laws as criteria in dividing marital assets. As mentioned, some dayanim adopt the idea of divorce compensation, which works along somewhat similar lines.
נ״ד
54In addition, Rav Warburg writes (Hadarom 70-71:131) that the prevalent view among dayanim in the State of Israel rabbinic courts is to regard property listed in the names of both spouses as jointly-owned property, even if the husband’s assets alone financed the purchase. They view a case in which the husband financed the purchase of a house and listed his wife as co-owner as a gift from the husband to his wife, which is not returned upon divorce (see the aforementioned Pitchei Teshuvah E.H. 99:7). The same applies to joint bank accounts, stock certificates, bonds, mutual funds, etc. Rav Warburg told me that many dayanim who serve on batei din in the United States adopt this approach as well.16Avi Levinson reports that Rav Mordechai Willig agrees with this approach. Accordingly, in many marriages, the couple creates a partnership by listing themselves as joint owners of their property.
נ״ה
55Finally, Rav Hershel Schachter17Rav Schachter made this assertion in an address to a convention of the Council of Young Israel Rabbis. argues that a woman is entitled to the money she earns from a full time job. Although Halachah states that a wife’s earnings belong to her husband (Shulchan Aruch E.H. 69:3-4), the Dagul Meir’vavah (E.H. 80:1) raises the possibility that a woman is entitled to earnings acquired through extraordinary efforts (ha’adafah al yedei hadechak).
נ״ו
56Rav Schachter asserts that the wife’s earnings that accrue to her husband include only small scale work, such as making small amounts of jewelry for sale. However, if she works as a full-time worker, she may claim kim li (“I follow;” see the Bach cited in the Beit Shmuel 80:2)18This approach assumes that the wife technically owns her earnings before they are transferred to her husband’s domain. Accordingly, if she follows the opinions that ha’adfah al yedei hadechak belongs to the wife, the transfer of ownership never takes place, and she retains title to her earnings. the opinions that ha’adafah al yedei hadechak belongs to the wife and that she therefore enjoys the exclusive right to that salary. Rav Schachter applied this approach to an actual case. A husband donated every spare cent in the couple’s joint bank account to tzedakah, leaving no money to spend on even a very modest vacation. Rav Schachter advised the wife to open a separate account in her name to be funded with the money she would earn from her job, which she could then use to pay for a reasonable vacation for the couple.
נ״ז
57We should note that Rav Moshe Feinstein19Rav Moshe’s position is cited by his son, Rav Reuvein Feinstein, in an article that appears in the Memorial Volume to Rav Tzvi Tennebaum, Sefer Eitz Erez p. 801. also maintains that a wife’s salary belongs to her. He goes so far as to say that if a wife travels to a discount outlet and buys an item for a much lower price than she would have had she purchased the item at a local store, the price differential belongs to her.
נ״ח
58Rav Yaakov Ariel’s Compromise
נ״ט
59Even halachic authorities who do not accept the approach of Rav Dichovsky may still recognize the many halachic implications of the changing financial relationship between husband and wife. Rav Yaakov Ariel (Techumin 22:129-147) adopts a compromise position. He asserts that even today, the husband assumes the primary responsibility of supporting his wife. He notes that he presented this point to hundreds of couples from all sectors of Israeli society who work in a wide variety of professions, and not one woman stated her willingness to waive the benefit of this right. He contends that a husband also remains responsible to pay for his wife’s medical needs, no matter how steep the cost, based either on his obligation to provide for her needs or on his requirement to redeem her from captivity. He argues, accordingly, that it is profoundly unjust for a husband to shoulder very significant financial responsibilities and yet not retain ownership of the marital assets (notwithstanding the exceptions discussed previously). Rav Ariel does grant, though, that since most women earn a significant salary or have the potential to do so,20A couple should consider that Rav Hershel Schachter and Rav Mordechai Willig urge mothers to avoid working outside the home during child-rearing years, if possible. women enter marriages today with less financial dependence and more of a sense of mutuality. He also acknowledges that this attitude is legitimate and recognized by Halachah in a host of areas.
ס׳
60Obligations of Wife to Husband
ס״א
61The Shulchan Aruch (E.H. 80) states that as a complement to the husband’s obligations to his wife, a wife has certain obligations to her husband. These include washing his hands and feet, serving him wine, and sewing clothes for the family. Rav Ariel states unequivocally that these specific obligations no longer apply. Halachah mandates that every couple, unless otherwise stipulated, enters a marriage with the intention to act in accordance with commonly accepted community practices. Hence, since the minhag hamedinah is that wives no longer perform these services on behalf of their husbands, husbands have no right to expect their wives to do so.
ס״ב
62Interestingly, Rav Ariel argues that if a woman works outside the home, she is not obligated to cook for the family (despite the fact that the Shulchan Aruch E.H. 80:6 lists this as an obligation), since commercially prepared food can be purchased and subsequently warmed in a microwave oven. This last point appears to be highly debatable, as some families cannot afford (see Shulchan Aruch ibid.) to purchase prepared food on a routine basis. In addition, prepared food is often far less healthy than food prepared at home.
ס״ג
63Moreover, it seems that even in Orthodox families in which the wife works a demanding job, she very often is the one who prepares the food. Thus, the minhag hamedinah still appears to be that working wives cook for their families. It seems that the same applies to issues concerning child care and household chores.
ס״ד
64A Wife’s Control of Family Assets
ס״ה
65It does seem clear, however, that Rav Ariel is correct in his assertion that the minhag hamedinah is that husbands and wives in a healthy relationship make joint decisions about significant monetary issues. Rav Ariel argues that this holds true even if title to marital assets is vested with the husband, since the minhag hamedinah is that couples share equal access to the family’s financial assets.
ס״ו
66Therefore, unlike the times of the Gemara when only husbands made decisions regarding tzedakah allocations (Shulchan Aruch Y.D. 248:4), Rav Ariel rules that today, neither spouse is permitted to donate significant sums without the other, in accordance with the current minhag hamedinah. This would appear to apply to purchases as well.
ס״ז
67Another ramification is in the area of tort liability. In the time of the Gemara, one had difficulty recovering damages from a married woman, since she had no readily available assets from which to collect (Bava Kama 87a). However, Rav Ariel argues that today things are different:
ס״ח
68…because it is unreasonable to say that a wife can draw from her account to pay for a variety of needs without any objection from her husband, but when she is obligated to compensate for financial loss that she caused to others, her husband can object. Therefore, it appears that even though the Talmudic principle that ‘What a wife earns belongs to the husband’ still applies in our times, this is insufficient reason to excuse her from indemnifying one to whom she caused loss. As far as this matter is concerned, we relate to her as if she has assets of her own.
ס״ט
69Other halachic authorities do not seem to concur with this view. For example, Rav Yaakov Blau (Pitchei Choshen 8:8:75, published in 1996) presents the classic Halachah regarding this matter without noting any difference in our times. Similarly, Rav Blau (ad. loc. 8:73) presents as normative the classic rules forbidding a wife to donate money to tzedakah without her husband’s consent.
ע׳
70Perhaps one can reconcile the apparent dispute between Rav Blau and Rav Ariel by distinguishing between different segments of the Orthodox community. Rav Blau’s approach might fit certain communities wherein couples might be presumed to operate based on the classic Talmudic model of the husband-wife financial relationship. Rav Ariel’s approach, on the other hand, seems more appropriate for other communities in which couples seem to function based on a model different from the classic one. Different communities might have differing minhagei hamedinah. In addition, Rav Blau might rule otherwise in a case in which the wife is listed as a joint owner in the family’s bank account and/or securities accounts.
ע״א
71The change in financial relationships between spouses might impact other areas of Halachah. One issue that may depend on this point is the propriety of the wife appointing the family Rav to sell the chametz on behalf of the family without the husband’s consent or vice versa. Another ramification could be whether the wife can write a prozbul21This document allows for the collection of a loan even after the conclusion of the shemittah year. on her husband’s behalf.22Avi Levinson notes that these issues also may depend on the dispute between the Ketzot Hachoshen (243:8) and the Teshuvot Chatam Sofer (E.H. 1:11) regarding whether a person may remove something from another’s control if it is beneficial for the latter not to own the item.
ע״ב
72Ritual Matters
ע״ג
73The Shulchan Aruch (O. C. 529:2) frames the Torah’s obligation to rejoice on Yom Tov as follows:
ע״ד
74One must rejoice and be in a good mood during Yom Tov. He, his wife, his children and all those who are part of his family [must be in a joyous mood]. How does he facilitate their rejoicing? Children are given parched grain and nuts, and for women, one should purchase clothes and jewelry according to his means.
ע״ה
75Rishonim debate the nature of the obligation of women to rejoice on Yom Tov. The Rambam (Hilchot Chagigah 1:1) rules that the wife has an independent obligation to rejoice, and the husband merely facilitates her fulfillment of the mitzvah. Since the husband controls the family finances, he allocates the money for the clothes and jewelry. The Ra’avad (commenting on the Rambam ad. loc.) believes that the wife has no independent mitzvah to rejoice on Yom Tov; rather, the Torah obligates the husband to make her happy on these days. The Sha’agat Aryeh (66) and Mishnah Berurah (529:15) rule in accordance with the Rambam.
ע״ו
76Rav Ariel raises the question of whether the mechanics of this mitzvah have changed in our times now that spouses share control of the family’s funds. He begins by focusing on the Rambam’s opinion. The Rambam believes that essentially the wife is obligated in this mitzvah but that only the husband can facilitate its fulfillment since he controls the finances. Since, however, contemporary wives control finances equally with their husbands, a wife should be obligated to fulfill the mitzvah of rejoicing on Yom Tov independently. Rav Ariel recommends that the best approach to maintaining marital harmony23If it is not assumed that the husband has sole control over the family’s finances, he should not make a unilateral financial decision that will affect the wife (by changing the amount of money available for other needs). is for a couple to plan its Yom Tov budget in such a way that they agree on the amount of money that will be allocated for the purchase of clothes and jewelry for the wife.
ע״ז
77Conclusion – Bittul Chametz
ע״ח
78We opened this chapter with the question of whether wives today should perform bittul chametz along with their husbands. Traditionally, there was no need for her to do so, since all the marital assets including the home and its chametz belonged to the husband.
ע״ט
79In our times, however, many women should be concerned with the prohibition to own chametz. Contemporary wives own their chametz either because of Rav Dichovsky’s approach (or a variant thereof) or due to the fact that wives in most cases are listed as joint owners of the marital home. I have heard that in some homes today, husbands and wives recite bittul chametz together, while in others only the husband performs the bittul, as was practiced in preceding generations. In such a case, the husband acts as the wife’s agent in nullifying the chametz.
פ׳
80We will close with a vitally important assertion made by Rav Ariel. Despite the change of financial control and decision-making in our times, a basic distinction between the roles of husband and wife remain in full effect. The primary responsibility to earn a livelihood for the family still rests upon the husband, and the primary responsibility for child-rearing and homemaking still rests upon the wife. The complementary yet not identical obligations of husband and wife typify the special character of the Jewish home.