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“The books, the compositions, and the commentaries are our teachers, and all is according to the understanding of the intellect and reason.” R. Sh’muel ben Moshe di Modina

Sunday, February 5, 2017

S'rara again??

It's been a long hiatus. But, given the latest ruling from the OU on the matter of women clergy, I figured I'd use this platform - it's as good as any - to upload a piece that I wrote a bunch of years ago, commissioned by an "Orthodox Feminist" organization, to respond to the RCA's prohibition of having women serve as synagogue presidents. After I completed it, the organization decided not to use it - too provocative, not diplomatic enough, whatever.

I didn't bother to change it now for the purpose of "women as clergy" (rather than lay leaders). It is not an identical matter, though not much less obvious as to why it is not problematic, but interestingly, the OU chose to raise the matter of s'rara - positions of authority - as a reason to prohibit women from serving as clergy (just as they did to prohibit women lay leaders).

Therefore, my examination of the matter of s'rara, and, in particular, a careful discussion of the approach of the Tosafot, in contrast to Maimonides' ruling, is totally relevant, and I have not seen anyone explain the approach of the Tosafot completely, as I believe I do (while keeping it short).

Women as Lay Leaders in the Jewish Community

Debby Koren

When Eldad and Meidad began prophesying in the Israelite camp, Joshua saw this as a threat to authority, and suggested to Moshe: “restrain them! (k’la’em)” (Numbers 11:28). Rashi explains that by the word k’la’em, Joshua is suggesting to burden them with community service, and they will cease (kalim, thereby proposing a shared etymology) by themselves.  Rashi’s commentary is drawn from Tractate Sanhedrin 17a, and the Tosafot (ad loc. at the incipit v’hem kalim me’aleihem) explain that they will cease prophesying because the Sh’khina does not rest upon someone in sadness, but only out of joy.  Perhaps the community service that Joshua had in mind was the position of synagogue president, certainly a burden and responsibility that one does not agree to do for the joy that it brings those who hold this position.

Considering the thankless burden that is any such communal position, one must wonder why many people are not amenable to enlarge the “camp” of those special individuals who are nevertheless willing and able to take such tasks upon themselves, by including women as potential lay leaders.  In fact, their inclusion could bring innovative perspectives.

Several quite thorough articles have appeared since the question of women as lay leaders first arose a number of decades ago.  The articles cite rabbis who find no halakhic objection to women serving in positions on synagogue boards, or as synagogue president, and rabbis who find hakakhic objection.  And then there are rabbis cited who admit that there is no technical halakhic objection, but, nevertheless, state that for public policy reasons they oppose the idea.  This short article would be superfluous if its intent were to reiterate what has already been written; neither is its short format suitable for that task.

Rather, the goal of this brief article is to point out some ideas to consider, while studying the issue in greater depth; clarifications, if you will, that shed perspective on the halakhic discourse and on the non-halakhic public policy concerns.

Before the question of women serving in lay leadership positions arose, two related issues were extensively debated in responsa literature in the first half of the twentieth century:  women’s suffrage in the Jewish yishuv in Palestine, and, later, the matter of women serving in public positions, such as (civil) judge, Knesset member, police commander, etc. in the State of Israel.  Often, these responsa are presented as precedent in discussions of the question of female laity. 

However, if the question of women’s suffrage or their assuming public positions were precedent, then I could conclude this article now.  In the Modern Orthodox community, I do not believe that there is anyone who would refuse to make aliya because there are Jewish women serving in the Knesset, because they might have to face a female traffic judge, or because the president of the Supreme Court in Israel is a woman.  (Outside of Israel, one could claim that s/he is subject to dina d’malkhuta, the prevailing government law.)  Nor do I believe that the Modern Orthodox community would agree with R. Moshe Feinstein’s declaration (Igrot Moshe Yo-re De’a 2:45) that the Israeli government is in the hands of heretics and apostates (kof’rim u-mumarim), who are responsible for the presence of women in government positions of authority.

In fact, even the hareidi community has apparently accepted the presence of women in public leadership positions, and though they do not permit women on their own party lists, they will enter coalitions with parties who do.  And if the Speaker of the Knesset is a woman and she orders a disorderly hareidi Knesset member to leave, he would obey, rather than resign his seat.

Therefore, notwithstanding the commonality of the primary sources that are used in both discussions - that of women’s suffrage or women holding public positions, and that of women as laity – it stands to reason that there must be some distinction.  The opinion of those decisors who permitted women’s suffrage and participation in public life has prevailed, hands down, in no small measure due to the desire on the part of the religious community to be part of a modern state rather than to withdraw into a self-imposed ghetto, as did the Neturei Karta.

What, then, is different about the synagogue setting that cultivates a more conservative attitude?  Before offering a response to this question, let us consider the primary sources that are at the core of every discussion on suffrage and the inclusion of women in positions of leadership, public or religious.

The source that is invariably presented as the primary limiting halakhic factor is Maimonides’ ruling: “One does not appoint a woman as a monarch, as it states ‘[you may set] over yourself a king’ - but not queen.  Similarly, with all assignments in [the nation of] Israel, only a man is appointed to them.” (Laws of Kings, 1:5)  Maimonides’ commentators point to the Sifrei’s halalkhic midrash on Deuteronomy 17:15 as the source for his ruling, as we do not find this ruling in either the Babylonian or the Jerusalem Talmud.

However, a number of questions about Maimonides’ ruling immediately arise.  The midrash only refers to a monarch.  On what basis does Maimonides extend this restriction to other positions?  Further, the midrash continues its exegesis on the portion of the verse that states “one chosen by the Lord your God”, and explains “by the word of a prophet”.  Even if the intent of this Tannaitic midrash is to include all positions that are appointed by the word of the prophet, received from God, what positions would this include, other than a king?

A variety of solutions to these questions are found in the literature.  Possible explanations for Maimonides’ extension of the restriction to all assignments include a reasonable suggestion that Maimonides had a different version of the Sifrei (e.g., a different version is found in M. Y. Kahana, Kit’ei Midrashei Halakha min HaGniza, Jerusalem, 2004, p. 375), or that Maimonides’ ruling regarding women is parallel to another, similar ruling about gentiles and converts (Laws of Kings 1:4), for which textual basis is found in the Talmud (Y’vamot 45b).

We also find a range of interpretations regarding the types of assignments that Maimonides had in mind.  In his ruling on gentiles and converts, he uses the term s’rara, which refers to positions of authority, and this has become the term that is used in the halakhic discussions about women, as well.  But exactly what types of positions are considered s’rara and how they are appointed are subjects of debate. 

We find poskim who rely on Maimonides’ ruling to prohibit women from assuming leadership positions, and those who maintain that Maimonides’ ruling is irrelevant to positions that people attain via a democratic process, rather than via appointment by a king or by a Sanhedrin, or by inheritance, and irrelevant to positions where the appointee does not have the ultimate authority.  A synagogue president or board member answers to a congregational rabbi and to the synagogue membership, and, in some cases, even the synagogue rabbi does not have the ultimate authority in his congregation, but rather is answerable to a national organization, of which the synagogue is a member, by choice.  And, of course, he is answerable to the board, which might not renew his contract.

In addition to the claims that Maimonides’ ruling does not apply to appointments to public positions in our time, all discussions on the question of women in leadership positions present the view of the Tosafot as a dissenting view.  It is essential, therefore, to clarify the view of the Tosafot and its implications.

The arguments that are offered in the name of the Tosafot in opposition to Maimonides’ ruling include commonly known rationalizations of the fact that Deborah was a judge.  Bear in mind that Deborah was not just a “judge” like those others in the Book of Judges who functioned as rulers and military leaders – Targum Yonatan uses the word nagoda, i.e., ruler, in those cases.  Rather, she was, in addition to that, a real judge, as in court or a beit din, as we are told in Judges 4:5 that B’nei Yisrael came to her for mishpat, for judgment – Targum Yonatan uses the word dina, and the word dayna to translate verse 4:4, “she was judging Israel at that time.” 

Therefore, Deborah’s position, both as a judge and as a leader, would appear to be problematic in light of Maimonides’ ruling.  The explanations that are based on the Tosafot’s commentary (from several places in the Talmud) that are typically presented include the suggestions that Deborah was a judge in the sense that the people accepted her authority, or that Deborah was not really a judge, but taught the laws, or that Deborah was a judge by some kind of divine word, or because she was a prophet.  However, none of these explanations actually contradict Maimonides’ ruling, because they all function as qualifications to our initial understanding of Deborah’s position.  She wasn’t really like a male judge, after all, either because of how she functioned or because of how she was appointed.

It happens to be that these qualifications work as arguments for the case of public positions today, but if this is all we learn from the Tosafot, then we are missing some essential points.  The above qualifications are actually stated by the Tosafot from a perspective of acceptance of women in leadership roles.  It does not occur to them that there is a problem with women holding positions of s'rara; only, perhaps, with her holding a position as a judge.  That is why all of the explanations relate to Deborah’s position as a judge, i.e., a judicial figure, but not to her functioning as a military leader.  In fact, it becomes quite clear, when examining the Tosafot in five locations in the Talmud, that not only didn’t the Tosafot have a problem with women holding positions of s’rara; it didn’t even occur to them that anyone had such a problem. 

Rather, the Tosafot are trying to grapple with whether women are disqualified specifically from being a judge.  A mishna in Nidda (49b) states that “whoever is qualified to judge is qualified to be a witness”.  Now, it is known from midr’shei halakha that appear in several places in the Talmud (Sh’vuot 30a, et al.), that a woman is generally disqualified as a witness.   Using the deductive reasoning of “A implies B, therefore not-B implies not-A” (called the rule of “transposition”), it follows that since women are disqualified as witnesses, they must also be disqualified as judges.

In Nidda (50a at the incipit kol hakasher ladun kasher l’ha’id) the Tosafot raise the problem of the contradiction between the logical conclusion of that mishna and the fact that Deborah was a judge.  But they also raise another contradiction with that mishna.  In Bava Kama (15a) we learn, from scriptural exegesis, that men and women are equal before the law, and the Tosafot point out that, according to another midrash halakha, the verse refers to both the litigants and the judges, implying that women should also be permitted to be judges!  Not only does the case of Deborah have to be reconciled with the mishna in Nidda; what is learned in Bava Kama also needs to be reconciled with that mishna in Nidda.

The Tosafot suggest something remarkable, and yet, it is not what we most frequently see cited in their name in response to Maimonides’ ruling.  In Nidda (ad loc.), after presenting the above question, the Tosafot write v’yesh lomar, “it should be said that this is what it [the mishna] states: “any man that is qualified to judge is qualified to be a witness”, so that this statement in the mishna is referring only to men – the rule of transposition can therefore be applied only to men.  Women may be judges, even though they are disqualified as witnesses.  The Tosafot offer the same explanation of that mishna in two other places (Bava Kama 15a at the incipit asher tasim lifneihem and Gittin 88b at the incipit v’lo lifnei hedyotot).

As we know, the Tosafot frequently offer several solutions and opinions to reconcile contradictions.  The qualifications of Deborah’s judgeship that were mentioned above are offered as alternative suggestions to reconcile Deborah’s case, according to a view that equality before the law only refers to the litigants, but not to the judges.  (Tosafot Y’vamot 45b at the incipit mi lo tavla and Sh’vuot 29b at the incipit sh’vu’at ha-edut also suggest the qualifications of Deborah’s judgeship, in somewhat different scenarios.)

The Tosafot’s proposal that the mishna in Nidda does not disqualify women as judges implies that the Tosafot did not even consider it problematic to appoint women to leadership roles.  If they gave any weight to the source from the Sifrei that Maimonides apparently relies on, it would not be possible to suggest that the mishna permits women to be judges.  In fact, if they even considered the source from the Sifrei something worthy of a response, they would have cited it.  It does not enter into the discussion in any of the five citations above.  Given that it does not appear in either the Babylonian or the Jerusalem Talmud, they did not see a need to cite it where the question of women as judges, or Deborah as a judge, arises.

The fact that the source from the Sifrei does not appear in either Talmud is significant.  Portions of that very same paragraph from the Sifrei are cited in both Talmuds, in more locations than is reasonable to list here, to teach several points, but not the point that Maimonides deduces regarding women.  Had the gemara wanted to cite a midrash that would disqualify women in positions of leadership, or to question the role of women who were leaders, there are more than ample places that this could have been done.

It is anyone’s guess, then, as to why Maimonides chose to incorporate a halakha based on this midrash from the Sifrei into his corpus, even though Sages in the Talmudic discussions and the s’tama  (or the redactors of the Talmud) ignored it.  After all, there are many other midrashim in the midrash halakha that were not included in the Talmud, nor did they make it into the halakhic codes.  Likewise, we can’t know for certain why the Tosafot ignored this midrash, though this is more in accordance with usual halakhic methods.

What is of note, though, is that Maimonides’ codification of this midrash is quite compatible with the social order in Muslim Egypt of his time, while the Tosafot’s greater open-mindedness about possible roles for women is more in keeping with some of the positive changes in the role of the Jewish woman that occurred in Europe during the High Middle Ages, 1000 - 1300 C. E., as described by Professor Avraham Grossman (Pious and Rebellious: Jewish Women in Medieval Europe, 2004).  Note that the first generation of Tosafists, such as Rabbeinu Tam and Rashba”m, were active in the twelfth century.  These changes in the role of women are viewed as positive, particularly when measured against Muslim society.

With this background, let us return to the question: what is different about the synagogue setting that would cultivate a leaning towards Maimonides’ view rather than the Tosafot’s view?  Should one suggest that in the synagogue, being a holy place, one should make more of an effort to avoid licentious thoughts, then it should be pointed out that there should be less concern of such problems where there is trepidation before the Sh’khina.  And if one should suggest the commonly heard refrain kol k’vuda bat melekh p’nima (literally: “all the princess’s belongings should be led within,” Psalms 45:14, having nothing to do with modesty) to prevent women from appearing in public or taking public roles, we should point out that people are proud to see their daughters and wives appear in court as attorneys or judges, at academic conferences, or speak on their book tours, before strange audiences.  Should it not also be comfortable for them to hear those same women announce when mina is in front of their own caring and supportive communities?

May I dare suggest that restricting lay positions to men, whether in the synagogue or in Jewish communal organizations is a manner to retain a last stronghold of Maimonides’ vision of male hegemony, in a society where change challenges many traditional values, where religion has become a lifestyle choice rather than an obligation.  It is based on a false hope that conservatism is what will guard Judaism from these challenges, rather than engaging those challenges, the way Judaism had done for centuries in the past.

But is Maimonides’ vision of society what we really wish to strive for or preserve?  We all are witness to what befell those societies that are in the mold of Maimonides’ Muslim Egypt, polygamous (Hilkhot Ishut [Laws of Personal Status] 14:3) societies, in which women are veiled (Hilkhot Ishut 24:12) and are rarely permitted to venture outside of their homes (Hilkhot Ishut 13:11).  Are such societies what we wish to emulate?

Moshe rejected Joshua’s concern about Eldad and Meidad threatening authority.  He did not feel threatened at all, but rather said “would that all the Lord’s people were prophets, and that the Lord would put His spirit upon them!”  Would that all the Lord’s people – including women – assume leadership roles in our communities, and may our communities thus be able to meet the challenges of tomorrow!

Dr. Debby Koren is an independent scholar who is currently working on a book on responsa of the 16th -17th centuries in the post-expulsion Jewish Spanish and Portuguese communities.  She also lectures and teaches Talmud and halakha in informal adult settings.

Tuesday, October 15, 2013

Love the Convert - How's That?

This time I'm going to write about another type of family law that might be dealt with in the batei din: inheritance law.  Notice I wrote "might be". That's because, unlike divorce for which the batei din have a monopoly, inheritance cases are heard in a beit din, rather than the civil court, only if all parties involved agree in writing to allow the beit din to judge on the case. That's a good thing, because women are not treated fairly in Jewish inheritance law.  But this time, I won't be addressing women's problems.  I'll be addressing how converts are treated under Jewish inheritance law, and we'll look at a case (940365/1) that was decided in the beit din in Be'er Sheva just a couple of months ago (August 18, 2013).

In this case, there is only one living person involved - the biological son of the deceased, who, a Holocaust survivor, has no other known living heirs (e.g., brothers), nor did he have any other children.  It should be quite simple and straightforward to determine that this son is the heir.  Except, the deceased's wife was not Jewish when the deceased had married her and when the son was born.  Mother and son converted to Judaism after immigrating to Israel.  As a result, the son is not considered his father's son halakhically.   According to halakha, a convert to Judaism has no yihus, or familial relationship, to his relatives from before the conversion.  Therefore, according to halakha, this son is not the heir to his biological father.

Dayyan Luz-Iluz wrote:
.לפי זה, היה ראוי לדחות את הבקשה להוצאת צו ירושה על שם המבקש
Based on this, it would have been appropriate to deny the request for an inheritance order in the name of the claimant.

But the dayyan (only one dayyan signed this pesak) sought to find a way, in this case, given that the claimant is a sincere mitzva-observing convert, to issue an inheritance order for the claimant.  It is quite possible that the fact that the civil court offers an alternative law was a motivating factor (would that the civil courts offer an alternative to the religious divorce laws), because the dayyan wrote:

הנה, בוודאי שאין מקום להפנות את המבקש לרשם לענייני ירושות, ששם אכן יוצא צו ירושה על שם המבקש, על פי הדין האזרחי, שאם על פי דין תורתנו הקדושה אינו יורש, מה נועיל בכך. ולכן, אם לא נוציא צו ירושה על שם המבקש, יועבר העיזבון לידי האפוטרופוס הכללי על פי חוק, ושם יחלקו את העיזבון כפי הוראות החוק למוסדות דת מדע ותרבות וכדו'. במצב כזה, לענ"ד ניתן להוציא צו ירושה על שם המבקש לאחר שנקבל את התחייבותו שאם יבוא מאן דהוא שהוא היורש של המנוח על פי דין תורה, ויתבע להעביר אליו את העיזבון, המבקש יצטרך להיענות לתביעה זו ללא היסוס, וכפי שיתבאר בהמשך. כך באמת עשיתי, ולאחר שקיבלתי את התחייבותו לכך הוריתי להוציא צו ירושה על שם המבקש.

Here it certainly would be inappropriate to refer the claimant to the Inheritance Registrar [i.e., the civil court], because there they would in fact issue an inheritance order in the name of the claimant, according to the civil law, while according to our holy Torah law, he is not the heir, so what would we gain by that?  [I.e., we wouldn't want to encourage someone to circumvent the halakha.]  Therefore, if we don't issue an inheritance order in the name of the claimant, the State authority for guardianship would take control of the estate, according to law, and it would divide the estate, according to the direction of the law, to religious, scientific, and cultural institutions, and the like.  In such a situation, in my humble opinion, an inheritance order should be issued for the claimant, once we receive his commitment that if someone comes who is an heir of the deceased according to halakha, and he sues to retrieve the estate, then the claimant must comply without hesitation, as will be clarified further. That is what I did, and once I obtained from him such a commitment, I gave the direction to issue an order of inheritance to the claimant in his name.

The pesak contains several pages of halakhic discussion about what would be done according to halakha with an estate that has no heir, and other questions somewhat related to the case at hand.  Apparently, the dayyan's motivation in including this discussion it to give halakhic backing to his decision - better for the estate to fall into the hands of the biological son than to those (in this case, institutions) who are not at all the rightful heirs, which would happen if he did not agree to issue an order of inheritance in the claimant's name (but, of course, only if the claimant did NOT go to the civil court, where he would have received the same result, without the pilpul, and without having to agree that if his father's long-lost brother shows up that he must hand over the estate).

For all practical purposes, the claimant would have received the same result whether from the beit din or from the civil court.  But that is only because the deceased had no other living relatives.

A recent article in Makor Rishon (a Hebrew newspaper in Israel whose readership is primarily national-religious) discussed this case and presented it as if the pesak was so compassionate and sensitive to reality.  Look at how wonderful the batei din can be!!

But suppose the case were just slightly different and their were two parties who came before the beit din - a brother of the deceased and this son, each wanting to claim the inheritance.  The beit din would award it to the brother. The civil court to the son.  Which do you think is the more just law, given that if only the son were born Jewish to this father, he would have been the heir according to halakha, too?

I know what I think.  

I don't know how many Israelis there are who were not born Jewish according to Orthodox law but have a Jewish father, but I will assume it is a common occurrence.  Whether these Israelis converted to Judaism or not, the civil court would recognize them as their fathers' children.  The beit din does not, and will only rule in their favor when it is not contested by any halakhic heir.

Some lessons to be learned:
1) Write a will!  This is true even if everyone in the family was born Jewish. (It is also important so that women in the family will be treated fairly.)  But it is even more important if there are non-Jewish (according to Orthodox law) members of the family.  There is no knowing who will decide that they want the beit din to probate your estate, and if they will pressure (or hoodwink) reluctant family members to agree.

2) In the event that there is no will, fortunately, by Israeli law, ALL parties who have an interest in the estate must agree to have the estate probated in the beit din for the beit din to assume the authority.  But, again, sometimes people are pressured into agreeing to go to the beit din, or they are naive and don't know what the results might be.

3) Learn what the halakha would say about your rights to inherit BEFORE you agree to have an estate probated in a beit din.

Oh, and 4) Love the convert!

Monday, September 30, 2013

Haven't I Been Telling you NOT to Register your Civil Marriage (which took place abroad, of course)?

If you've been following my blog, you should have caught on to the fact that I recommend against registering a civil marriage (which had to have taken place outside of Israel, since Israel does not have civil marriage) in Misrad HaPnim (Office of the Interior).  I'm sure I mentioned it several times (for example, here).  And, of course, that means that you might as well not bother with a civil marriage in, say, Cyprus.  I've explained that once a couple registers as married in Misrad HaPnim,  dissolution of the marriage would still be in the hands of the batei din.  The whole point of a civil marriage is, I would think, to manage your personal life without the intervention of the religious establishment in Israel.

In this post I will demonstrate my point by writing about a case that came before the Beit Din HaGadol (the highest rabbinic court in Israel) in Jerusalem earlier this year.  The decision for the case, 891549/1, is dated March 5, 2013.  What was before the Beit Din HaGadol was an appeal (by the woman) against a previous decision by the regional beit din in Tel Aviv from approximately a year earlier.  In that earlier decision the beit din ruled that within thirty days the woman must accept a get l'humra (גט לחומרה out of concern for the more stringent opinion), but if she does not accept the get within thirty days, considering that the couple was married civilly, but had no (Orthodox) religious wedding, the marriage would be released, which basically means that Misrad HaPnim would receive direction from the beit din to change the status of the two parties to single.

The couple was married in a civil marriage in China in 1987.  They each arrived in Israel in different years in the 1990s and each one converted, also at different times.  They lived together as a couple in Israel prior to completion of the conversions.  Though during the conversion process they declared that they wanted to marry according to Jewish law, they never did.

It was the man who sued for divorce.  At the outset, the beit din ruled that there should be a get l'humra.  The woman agreed to accept a divorce, once the matters of property and child support were decided in the (civil) family court.  However, she did not appear on the designated date for the divorce proceedings.  The woman changed her mind and said that she wants her husband to prove cause for divorce in the beit din.  A whole lot of back-and-forth, which I won't bother to summarize.  The result was as I stated above:  the woman was ordered to accept a get.  If she did not within thirty days, the marriage would be released.

However, the woman apparently decided she wanted to retain her  married status and remain married to this man.  Therefore, the appeal.  She did not want a divorce, nor did she want the single status that would be imposed upon her by the beit din even if she did not accept the get.  She did not want to lose whatever benefits or value she had from this relationship.  She wanted shalom bayit.  (Go figure - I never understand someone who insists that a relationship isn't over when one person so clearly wants "out" - and in this case the marriage was in such a shambles that, at some point in the series of appearances before the beit din, she requested that the husband be tested for STDs and AIDS before she would take him back!!)

The pesak din is rather long (28 pages), and most of it consists of a discussion of the reasons for being stringent in requiring a get to end a civil (or non-Jewish) marriage.  All this is pretty theoretical, and has nothing to do with the fact that the woman does not want the marriage ended in any manner - l'humra or otherwise.  The dayyanim appear to be using this pesak as a platform to reiterate their standing on terminating a civil marriage.  

This particular case has the added matter of the civil marriage taking place when both partners were not yet Jewish.  The simple ruling is found in the Rm"a (R. Moshe Isserles' glosses on the Shulhan Arukh), Even HaEzer 26:

עכו"ם שנשא עכו"ם, וכן מומר שנשא מומרת לעבודת כוכבים בנימוסיהן, ונתגיירו אח"כ, אין כאן חשש קידושין כלל ומותרת לצאת ממנו בלא גט, אף על פי ששהה עמה כמה שנים אינו אלא כזנות בעלמא.

[In the situation of] a gentile who married a gentile, and similarly an apostate who married an apostate, such that they were living in accordance with a gentile religion, but who then converted [to Judaism] after they married [according to gentile custom - there was no civil marriage in the Rm"a's time], there is no concern that there was qiddushin at all, and [the woman] is permitted to be released from him without a get.  Even though he lived with her for several years, [the relationship] is not anything more than promiscuity.

If such is the Rm"a's ruling, why does the beit din prefer a get l'humra, and why do they need to write so many pages?  It is because there are dissenting views, cited in the pesak din, but which I will not include here, to keep the length of this post reasonable.  The dissenting views raise the possibility that this was not promiscuous, that the intimate relationship (following the conversions, in the case of this couple) was for the purpose of qiddushin, in which case a get would be necessary to end the marriage. (Check the first mishna in Qiddushin about the three ways to acquire a wife: by giving her something of monetary value, by a contract, or by sexual relations.)  The Sages were not very enthusiastic about qiddushin enacted by sexual relations, but it is a halakhic possibility, nonetheless, and it persists in being of concern in all discussions of dissolution of a non-halakhic marriage.

For this reason, every pesak din that deals with dissolving a civil marriage (regardless of whether or not partners were born Jewish) will go through the litany and quote all of the rishonim and aharonim who had anything to say about the intent of each of the parties when s/he engaged in sex with the other, and whether or not it was for the purpose of qiddushin or was a promiscuous relationship.  Never mind that many, many halakhic experts have already declared that in these modern times when a couple could easily have opted to marry according to Jewish law, but didn't, that clearly their intent was not for qiddushin.  Never mind that R. Moshe Feinstein did not require a get in cases of civil marriage, because he knew that by doing so it could increase the numbers of mamzerim; in the U.S., couples could get a civil divorce and ignore his ruling, if he were to insist on a get.

In Israel, couples have no such other option.  If the batei din would follow R. Feinstein's approach (and that of all the other authorities who provide reasons to be lenient) and rule a general decision that couples who do not have a halakhic wedding do not need a get, then the rabbinate would lose control over divorce in Israel.  The civil law would then have to provide a means for a couple who did not have a halakhic religious ceremony to change their status in the Misrad HaPnim without the intervention of the rabbinate.  Of course, if that were to happen, perhaps the batei din would have some time freed up to do more important things than deal with couples who don't really need a divorce, anyway.  But practical benefits should never interfere with power games, should they?    

So we get a lengthy discourse that includes all of the reasons to be lenient and all of the reasons to be stringent, including various analyses of the thinking behind the sexual relations of a couple who didn't marry halakhically.  Portions of the discussion are not particularly flattering to such a couple, to put it mildly.  Much of the cited material, being from centuries ago, is quite out of touch with reality (and then some rather modern stuff is also out of touch with reality).  And then the general conclusion, presented before getting to the case at hand:

לרוב ככל הפוסקים, אין לחשוש לקידושי ביאה בנישואין אזרחיים. אך גם החוששים לכך, זה רק כאשר בני הזוג יהודים נישאו בנישואין אזרחיים דאיכא הטעמים הנ"ל להחמיר, אבל כאשר בני זוג נישאו אזרחית בעודם גויים והתגיירו, ליכא לכל הני טעמי להחמיר.

According to just about all of the authorities there is no reason to be concerned about qiddushin by sexual relations in the case of a civil marriage.  But even those who are concerned [and therefore would obligate a get], it is only in the case when both partners are Jews who married in a civil marriage, because of the reasons given above to be stringent.  But when the partners married civilly while they were still gentile, and then converted, those reasons to be stringent are not relevant.

None of this really matters in the case of this particular couple.  What is important is that the appeal is dismissed because the wife did agree to divorce several times (and apparently changed her mind).  In fact, the higher beit din questions why the regional beit din required a get at all, given the lengthy discourse that was just provided by one of the dayyanim and its conclusion!  Therefore, even without a get, the marriage is to be dissolved.  I'd like to point out that this lenient attitude is specifically because the couple married civilly when they were not be Jewish.  Had it been a case of two people who were born Jewish, in spite of the fact that, as we saw in the conclusion, overwhelmingly the authorities are not concerned about qiddushin with a civil marriage, the batei din in Israel require a get l'humra.  (However, they will not consider a child born to a woman who was married in a civil marriage and did not receive a get a mamzer.)

What are my readers to get out of this?  That even in a case of a marriage that is in shambles and should be terminated swiftly, without mudslinging, without long drawn out proceedings in the beit din, once the marriage is registered in Misrad HaPnim, there is no escaping the batei din, even when a get is not halakhically required.  In this case, it appears that the correct result was eventually achieved.  But at what cost - to the two estranged parties who paid lawyers for all of the appearances in the beit din over the course of several years, to the taxpayers for the services of the dayyanim, to the other citizens whom the dayyanim could have served instead - for more pressing needs?  And, let's not forget the guy who first sued for divorce approximately 2 1/2 years before the final decision from the highest beit din.  I have no idea who was really at fault in the marital breakdown.  I don't care.  Remember, I support no-fault divorce.  Two and a half years is way too long a process if someone wants to move on with his or her life.  

Sunday, September 15, 2013

"Halakhic" Prenup Agreements - A Summary of my Objections

For the past couple of months I've been writing about various prenuptial agreements.  In the title above, I used the word "halakhic" to refer to those agreements that are intended to be used by couples who choose to marry in an Orthodox ceremony, particularly via the Israeli Rabbinate (including Tzohar rabbis), but any Orthodox ceremony is relevant.

That doesn't mean that other prenuptial agreements that deal with finances, child care, devotion to one another, etc. are not halakhic.  Indeed, they most likely are.  But I am not concerned with them, so long as a couple does not delude themselves and think that they then can proceed safely to marry in a standard Orthodox ceremony.  I am concerned with those prenups that are specifically aimed at preventing women from becoming agunot (or men from becoming agunim).  This is a summary of my main concerns.  I will put the fundamental patriarchal nature of the Orthodox marriage aside (though this is something that I oppose vehemently).  It is a different topic. Though I keep referring to "women", the same applies to a man whose wife might refuse to accept a get, except that he is no where in as difficult a situation as a woman whose husband refuses to give her a get, and so I've chosen to refer to women.

1) Before I would tell women to "rest assured" that they are protected by any of these prenups (read all my posts from July until the last one - you'll see which ones are more commonly used), I would want to see documented evidence of women who had to go to civil court to enforce it, then received their gittin in the beit din without a glitch.  Such documented evidence must include rulings from batei din in Israel.  I have so far heard a personal story of a woman who was told by certain dayyanim that if they knew there was such an agreement (not even enforced in a civil court), they would declare a get that follows as invalid.  It is not enough that certain rabbis have co-authored one agreement or another.  The rabbis involved in formulating the agreements tend to be on the more "liberal" side of the spectrum, and do not represent the dayyanim who serve in the batei din.  The prenup that would most likely be accepted by the batei din is one for which I have significant critique - it is the one that I discussed in my last post, and it has gained no public awareness, to the best of my knowledge.  And, it is also one that is most likely to have difficulties in the civil courts (I explain why in that post).

2) All of the prenups that are based on "enhanced" monthly support payments (and that pretty much covers them all, except for conditional marriage), so that the recalcitrant spouse will not want to prolong the recalcitrance, will not be effective if the recalcitrant spouse is very poor (because s/he won't have from what to pay, anyway) or very rich (because $1500/month won't put a dent in a spiteful guy who earns tens of thousands of dollars a month).

3) None of the prenups based on "enhanced"monthly support payments will help if the recalcitrant spouse leaves the country.  A case of a husband who absconded with the wedding gifts and left the country just two days after his wedding recently made headlines when a private beit din annulled the marriage.  None of these prenups would have helped this woman.  (Nor did the 40,000 NIS bribe that the State beit din paid the extortionist husband out of State funds, i.e., taxpayers' money.  Why should taxpayers have to foot the bill for the problems that result from an archaic, injust halakhic system?) And, we need to hear the results of a court case to see if the State will recognize the decision of this private beit din.  In two previous posts, I wrote about cases in which the recalcitrant spouse - one time the women, one time the  man - left the country.  You can read them here and here.

4) These agreements do not address problems that occur less frequently, but are still very severe when they occur: iggun due to disappearance of a spouse, perhaps for innocent reasons on the spouse's part, iggun of a widow who is waiting for halitza (the quite degrading ceremony that must be performed so that levirate marriage is not required; sometimes the yabbam extorts, and sometimes he is simply too young), iggun of a woman whose husband has lost the mental capacity to give a get.  These types of cases might be rare these days (once they were not rare at all and various halakhic methods were commonly used to try to prevent their occurrence), but they are tragic when they do occur, and they are indicative of the basic problems of qiddushin.  People don't discuss these much - they really are an embarrassment to Jewish law.

5) The above problems all compound and give cause to my main and all-encompassing objection: these prenups mislead couples into thinking that a halakhic marriage is fine and dandy so long as they sign one of these agreements.  It allows people to continue to hide their heads in the sand instead of facing the truth about qiddushin and what it truly entails.  The foundational problems will not be fixed with such an approach.

That's a shame.

See you at the Kolech conference, where I'll be speaking about the meaning and value of a ketuba today.  

Sunday, September 1, 2013

A Prenup Agreement for Mediation

I've got one last prenup to talk about - this at a reader's request in a comment. This agreement was written by Rabbi David Mescheloff, and you can see information about him, the documents (one for the man, one for the woman), explanations, and an article - all in Hebrew (except for an English bio of R. Mescheloff) - here.

Before I even explain this agreement and give my opinion, I will point out something interesting.  This agreement is found on the website of the Jerusalem College of Technology.  Why not on the site of a rabbinic organization?  How about Tzohar, so popular for providing mesadrei qiddushin and in whose journal R. Mescheloff's shorter paper was published? (His lengthy paper was published in the journal T'humin 21.)  In fact, in his opening paragraph in the version that appeared in Tzohar's periodical, he starts out by inviting the Tzohar rabbis to offer this agreement to couples about to marry.  Didn't happen.   Why not the Israeli Rabbinate?  Why not Itim?  How are couples supposed to learn about it?

R. Mescheloff actually provides an answer to these questions.  Among the halakhic authorities to whom he presented this agreement for approval was the renowned R. Yosef Elyashiv.  R. Elyashiv stated that there is nothing that is not permissible in the agreement, but he had some concerns about making it public, for general use.  His concerns are actually relevant to every prenup agreement, and are consistent with some of my own concerns and comments about any of the agreements that I have discussed in all of my posts about prenups:  Some organization might decide to push for this agreement to become standard, for everyone to sign, and then couples would end up signing it without even understanding what they were signing.  If a time comes when the agreement needs to be implemented, one of the parties might claim that s/he didn't know what s/he was signing.

This concern is true for every agreement, which is why I've been recommending for every agreement that I discussed that a couple consult with legal and halakhic authorities.  As a result of R. Elyashiv's concern, R. Mescheloff himself, when preparing a couple for their wedding, spends an hour and a half explaining the agreement to the couple.

I totally, totally agree that any agreement that a couple agree to should be explained to them very carefully.  Why isn't this done with a ketuba?  Didn't the ketuba become the standard that R. Elyashiv is so concerned about, that it would just be presented for "signature," without explaining it?!!  How many couples who marry actually understand what is in the ketuba and what they are agreeing to - the man by giving it to the woman, and the woman by accepting qiddushin and the ketuba?  A lot of what they are actually agreeing to is not even written in the ketuba!!  It is written in Jewish codes of law that, by virtue of enacting qiddushin, both parties are bound by, without knowing what they have accepted!  (Somehow, I don't think it would work for someone to claim that the qinyan is not binding because she didn't know what she was agreeing to.)  So my response to this concern is:
אתה נאה דורש ואין נאה מקיים (יבמות סג:) 

Loosely translated, this means "practice what you preach" (but the Hebrew is closer to "you preach nicely but don't do it nicely").  I quoted the Hebrew from Yevamot (it appears in some other places in the Talmud, too), where the Sages said this to Ben Azzai after he said that one who does not engage in procreation is like one who spills blood and reduces the image of God.  He did not marry and had no kids himself.  (Well, actually, there is a story that he did marry with not such a good outcome, but getting into that would really be off-topic.)

I will attempt to summarize the essence of the agreement, rather than go through what would be very lengthy, if I explained each of the nineteen (!) paragraphs.  Even its author wrote that one of its drawbacks is its sheer length. R. Mescheloff wrote in his explanation of this agreement that it is based on halakhic agreements that have been used in the past, approved by halakhic authorities, all presented thoroughly in his article in T'humin.  Indeed, the structure and language of the agreement is far more in keeping with halakhic contracts than any of the other agreements discussed.  After presenting a summary of the agreement, I will explain why this is so.

The purpose of the agreement is to bring a couple - one of whom wishes to divorce - to mediation (gishur; גישור).  If marital therapy can save the marriage, the mediator would direct the couple to marital therapy.  If marital therapy would not succeed, then divorce mediation would be the next step, so that the couple can reach a divorce agreement and proceed with a divorce. R. Mescheloff claims that in 95% of cases of divorce, there is no justification for the beit din to order a divorce, and that mediation would save everyone a lot of time, money, aggravation, and the nasty proceedings that often precede eventual settlement.  Mediation does not determine who is "at fault", but is intended for each party to find ways that they can compromise and reach an agreement.

I agree with everything that R. Mescheloff wrote about this (I merely briefly presented his approach), and his willingness to recognize that no one needs to be determined as the "winner" or that no one should be made "to pay" for his/her contribution to the breakdown in the marriage is admirable.  I contrast his responsible and realistic view of marital breakdown with that expressed by R. Eliezer Melamed, which I referred to in a previous post. Only the concluding sentence in the section that presents the benefits of mediation is troubling to me.  I will paste the Hebrew sentence here and translate it:
ההסכם לגישור יקטין את סבלם של הרוב המכריע של המתגרשים, כי יאפשר לכל אחד מבני הזוג להשתמש לטובתו בזכות הסירוב שההלכה מעניקה לו, בלי לנצל אותה לניגוח חברו ולמטרות לא הוגנות.
The Agreement for Mediation will reduce the suffering of the overwhelming majority of those who divorce, because it will permit each one of the couple to use to his/her benefit the right to refuse [divorce] that is granted by the halakha, without using it to abuse the other or for unfair purposes.
I do not think any one should have a "right to refuse divorce".  It is this premise that is the undoing, in my opinion, of the value of this agreement.  A person's basic human right is to have the freedom to choose with whom to share one's life and to terminate such a relationship if it is not satisfactory.  No one should have a "right" to refuse this wish to dissolve the relationship. Someone has the "right" to feel unhappy, even devastated, that his/her spouse wants out, but does not have the right to refuse.

The essential element in this agreement, like others that we have seen, is to have a "monetary incentive" for the recalcitrant spouse to cooperate, in this case, to cooperate in mediation so as to reach an agreement that will enable them to proceed to divorce.  But the main difference is that this "monetary" incentive is not monthly support payments (in the event of recalcitrance) but rather is the forgiving of a purported debt (when there isn't recalcitrance).  The mechanism of odita (אודיתא) is used, by which someone admits that s/he owes someone a certain amount of money acquired in a loan from the other, in this case a large sum.  Each spouse's document is admission of such a "debt" to the other.  So long as the marriage is good, payment of the "debt" is deferred.  If one party wants to divorce, so long as s/he cooperates first in marital therapy, the debt is deferred.  And if the therapy isn't successful, then so long as the one who didn't want to divorce cooperates in mediation, his/her debt is deferred.  If a divorce agreement is reached and divorce takes place, then the debts are forgiven.  There are time frames specified for each stage in dissolution of the marriage.  In a nutshell, that is the mechanism.

Now that I explained the mechanism, I can explain why such a mechanism is used.  It is because the very nature of Jewish contract law is quite enigmatic. While Jewish law is quite explicit about transfer and acquisition of property, whether through a sale or a gift, and about monetary debts, such as loans, the fundamental law does not allow for contractual obligations, whether to transfer property in the future, or to perform an act.  Without getting too technical (or legal), obligatory contracts - and in the case of the prenups that are based on "generous" support payments, conditional obligatory contracts - fall in the realm of what is called qinyan devarim, which is roughly translated as an “acquisition of words,” which is not binding.  For a qinyan to be binding, it must be relating to a concrete object, and words have no substance (even if they are written).  (A contract between an employer and a worker who will be paid for his services is an exception to this rule.  Employment of salaried workers has its own distinct set of regulations.)

A legal system without an instrument for obligatory contracts would be difficult to maintain, and the non-binding nature of a qinyan devarim is circumvented in Jewish law by several methods, one of which is odita, used in this prenuptial agreement.  Each circumvention method has its proponents and opponents among Jewish legal authorities, and each one is considered more appropriate for some specific circumstances and less appropriate for others, but in this framework we can only touch on the fact that there are, indeed, methods to grapple with the inherent limitations of Jewish contract law, so as to render an enforceable (in a beit din, whatever enforceability means in a beit din) obligatory contract.

One can find on the Internet halakhic contracts that are promoted by various organizations that would like to see Jews using Jewish law rather than civil law even in matters of, for example, sale or rental of an apartment.  But such contracts are obligatory contracts, and to make them binding, the "gimmick" of odita is commonly used - a party admits to owing a "loan", to be forgiven if, for example, transfer of the apartment is made on time.  (Here is not the place to discuss the application of situmta, which I won't explain, but mention for those who know about this stuff - I'm trying to preempt questions about what I write.)

I called odita a "gimmick", because it is that - there never was a loan, and yet the agreement states that the person signing acknowledges that s/he has in his/her hand a sum of money that his/her future spouse loaned to him/her and that s/he accepted it and is in debt for it, to be repaid according to the conditions specified in the document.  This is in essence what happens when one tries to apply two-thousand-year-old rabbinic law to modern society (and these problems already became acute as Jews became more and more involved in trade hundreds of years ago).  So, do we turn cartwheels in order to say we are being halakhic?  Or do we admit that the system is outdated and go with a legal system that is comfortable with obligatory contracts?

R. Mescheloff does admit that some people, including the Israeli Supreme Court, might have problems with people signing that they took a loan that never existed, that in fact, the whole agreement is based on a lie.  He further relates that some halakhic authorities expressed reservations about the method of odita, and have presented various explanations and justifications for its use.  He then states that it is not a lie but rather a "form of speech" that creates a loan that didn't exist before.

Personally, I look at this as a classic example of the way the halakhic system works - it is a system of creative compliance, using many "gimmicks" such as selling hametz (which I don't think individuals should do - they should eat it up or throw it out, but that is another topic), selling the land in Israel for shemita, or allowing the beit din to "distribute" the produce harvested during shemita, such that the payment for the produce is for the effort and not for the produce itself, heter iska (used to circumvent the prohibition to charge or pay interest), conditional divorces given by someone on his deathbed (not common any more, but once quite common, to avoid levirate marriage or halitza) etc., etc., etc.  Intellectually, I love these "gimmicks".  They are often clever and even subversive.  They demonstrate that there was always recognition that there were problems with halakha and that solutions had to be found.

On the other hand - on a different intellectual level - I feel that use of these "gimmicks" demonstrates the absurdity of trying to preserve what is clearly outdated law.  When turning cartwheels results in a herniated disc, it is time to scrap the law. And, there is the serious danger that to the vast majority of Israelis who are not well-versed in how these halakhic methods are used as a means to reach an end, Jewish law will seem absurd at best and a laughing-stock at worst.

But, actually, this is not my main objection to this agreement, and that is because I do appreciate the legal elegance and halakhic language that was used to write the agreement.  It is so far better written than the other agreements, even if in an antiquated style - I am a student and admirer of halakhic literature, and this fits right in.

My main objection - and R. Mescheloff did mention that the "womens's organizations" that assist women who are waiting for a get (why am I bothered by this?  is it only women who care about the problem of iggun?!) expressed this concern - is that "enforcement" of the agreement and any ultimate authority is placed in the hands of the beit din, rather than the civil courts. But the beit din has no power of enforcement!  They were given the authority by the Israeli government to impose penalties on a recalcitrant spouse (and can agree to a heter me'a rabbanim - agreement of one hundred rabbis - if the wife is recalcitrant), but they have no power to enforce payment of this fictitious debt if one party does not abide by what is expected for the debt to be forgiven or deferred.  Suppose one spouse refuses to go to therapy or go to the mediator.  Then what?  Summon him/her to the beit din for a hearing.  And if s/he doesn't show up?  If it were a hearing about a divorce, the beit din does have the authority to ask for a police escort, for example.  But the beit din does not have the power to force someone to a hearing about an unpaid "loan", or about any of the conditions by which the loan would be forgiven.  So the most the beit din could do would be to tell a community to excommunicate someone - those tools that were so common in the 16th century don't work so well today.  We know this.  They don't work for get refusers and they wouldn't work for people who ignore their halakhic prenup.

The other problem with giving all authority to the beit din is that they have a different set of values from mine.  I think this paragraph from R. Mescheloff's article (the shorter one) reflects the values and ideas that I dispute and would be wary to rely on: 
ברוב רובם של המקרים של הבאים להתגרש בימינו ההלכה קובעת כי כשם שיצרו בני הזוג את זיקת הקידושין והנישואין שביניהם מתוך רצון והסכמה הדדיים, כך ינתקו את הזיקה, בגט, רק בהסכמה. זו דרישה הגיונית וצודקת. היא גם שומרת על "הזכות האזרחית" של כל פרט לקבוע בעצמו את מעמדו האישי, בלי שגוף חברתי זה או אחר יתערב מכוח הממסד בחייו הפרטיים. הצורך בהסכמת שני בני הזוג לגירושין גם מאפשר לכל אחד מבני הזוג להגן על האינטרסים שלו לפי מיטב הבנתו, בלי שמישהו אחר יעריך במקומו מה הם האינטרסים שלו ובאיזו עוצמה עליו להרגיש שנפגע.
In the overwhelming majority of the cases of those who divorce these days, the halakha determines that just as they created the marital bond with mutual desire and agreement, so they should break the bond, with a get, only by agreement.  This is a reasonable and just requirement.  It also maintains the "civil right" of each individual to determine his own personal status, without any societal body intervening in the individual's private life, by the power vested in it by the establishment [i.e., government].  The requirement of agreement by both parties to divorce also permits each of them to protect his/her own interests according to his/her understanding, without someone else determining what his/her interests are, and how great the damages s/he perceives.
I'm going to put aside the fact that halakha actually permits a marital bond without mutual agreement:  A father can, halakhically, marry off his minor daughter without her agreement (and don't fall into the common mistake of citing mi'un מיאון - this is only for a minor whose brother and/or mother married her off!!).  Levirate marriage (yibbum) is also marriage without mutual agreement.  Fortunately, neither of these are acceptable in today's society, but halakha does permit them.

But, I'll put that aside.  What R. Mescheloff neglects to consider when promoting mutual agreement to divorce is that women do not have the solution of a heter me'a rabbanim.  Men do.  And men who have extra-marital relations do not have the cloud of mamzerut hanging over any possible children.  Any thought that the "right to refuse divorce" is a legitimate right does not consider the injustice of the system.

R. Mescheloff is looking for symmetry in an asymmetric situation.  Two people might fall in love, but it only takes one to fall out of love for the marriage to be over.  I would not want to rely on a system that does not recognize that.

Wednesday, August 14, 2013

An Agreement for the Beloved - some nice ideas, but ...

In the interest of thoroughness and in the interest of keeping my word, I offer this post about a rather obscure (in the sense of lacking any prominence) prenup agreement that is available, only in Hebrew, on Mavoi Satum's website. (Though the link is called Sh'tar Ohavim - a document for those who love, the actual document is called Sh'tar Ahuvim - a document for those who are loved, perhaps for those who are in love with each other or those who are beloved, as in re'im ahuvim in the sheva b'rakhot.)

No organizational affiliation or author is named for this document, and though someone at Mavoi Satum told me that she thinks so-and-so wrote it, since it was not a definite identification, I chose not to name any names.  Anyone who would like information can contact Mavoi Satum.

The document is intended to be an agreement for a union between two people, with no mention of halakhic qiddushin.  We're off to a good start.  The document aims to be totally egalitarian in the relationship between the two partners - exclusivity in "personal relations" (יחסי אישות) and in responsibilities - financial support for each other, joint support for their joint children, redeeming each other from captivity and providing medical care (traditionally, obligations of a husband for his wife), and other similar obligations.  This is refreshing, certainly in comparison to the ketuba and the implicit, but unstated-in-writing, asymmetric obligations of a husband to his wife and a wife to her husband in the default halakhic system.

The document also defines the way to dissolve this relationship.  For those who are troubled by the concept of a retroactive nullification sans ceremony of a conditional marriage, a concept that arose in my previous post,  you might find some ideas in the procedure defined here.  If either partner decides that s/he can no longer live in harmony and happiness with the other, then s/he should so declare before a beit din that recognizes the validity of this agreement, in all its details.  If no such beit din can be found (hint, don't look to the rabbinate, or to the Beit Din of America), then a public declaration should be made before ten adult Jews (of either gender).  After such declaration is made, the partners are to meet with a professional to attempt to reconcile - for a period of six months if there are no children (there is a spelling mistake in the Hebrew text here), and a period of one year if there are. 

After this period, if one partner still maintains that s/he can no longer live in harmony and happiness with the other, then a document attesting to the attempt to reconcile with the assistance of a professional should be presented to the beit din or to the quorum of ten.  Only one partner has to make such a claim, and then "the two parties are freed from one another."

Similarly, if one party becomes ill (mentally or physically), and can no longer be attentive to the other, or one party disappears, and the other party does not want to live in this situation, then the same procedure is followed.  However, instead of an attempt at reconciliation, there is a waiting period of one year if there are no children, and two years if there are, in order to try to restore the health of the one who is ill, or to locate the one who disappeared.

The purpose and motivation of these clauses is quite obvious.  The situations in which a woman finds herself an aguna if she were to be married halakhically, unconditionally, are addressed.  The public declaration provides closure and, I would imagine, would be a preventative to rash decisions to end a relationship.

We see some positive ideas here!  But I am not convinced that the agreement is completely well thought out.  It has a space for a bride and groom to sign, and a space for two witnesses.  But without a notary, at least, or signing a document in a family court, this document would not hold up in court. Therefore, there is no power of enforcement.  Such a document should come with clear instruction.  It also appears, to my layperson's eyes, not well-formulated from a legal point of view.  If I were interested in using such a document, I would bring it to a lawyer, and ask the lawyer to formulate something that is in accordance with the laws in Israel (or wherever it is being used) and that maintains the spirit of this agreement and whichever portions that could be adapted to a correctly worded legal document.

But there are also some clauses that seem naive to me.  For example, it states that all money and property acquired during their life together, including inheritance and gifts, is to be considered joint property.  This is a big mistake, in my opinion.  If one person inherits his/her family estate, it is not wise to consider it joint property.  If the relationship sours, or if the heir dies young, what happens to the property?  Because of such problems, hundreds of years ago it already became acceptable to give dowries to daughters contingent upon the marriage lasting a certain number of years.  Sadly, it was common for women to die in childbirth, and families that gave her a dowry did not want the husband or his family to inherit the dowry they gave their daughter just two years ago.  They wanted their property returned.  There are numerous responsa addressing disputes like this.  If a woman's grandmother gives her a diamond that is a family heirloom, it should stay in that family, and not be considered joint property.

That's just one example of the problematic clauses.  But I think all of the clauses that have to do with inheritance, property, and child support would need to be replaced with carefully considered and legally proper clauses (once again, I suggest looking at the Mishpaha Hadasha (New Family) website).

There is another concern that I have about this document.  Some of the clauses include heirs in the obligations, such as the obligation to redeem one another from captivity.  I don't see how you can actually obligate your heirs to do something in such an agreement.

In conclusion, there are some nice ideas here.  But if you like the ideas, be inspired by them, and then go draw up a better agreement with expert advice. One that would hold up in court and one that reflects the serious thought that a couple should engage in at this important time in their lives.  Then have whatever (non-halakhic, or conditional qiddushin) that you like, and live together in harmony and happiness.  

(And, I really don't think that Mavoi Satum should have this agreement on their website, at least not without some qualifying statement.  Fortunately, I doubt it has been used much, if at all.)

Tuesday, August 6, 2013

Everything Including the Kitchen Sink: Contract for a Just and Fair Marriage - Center for Women's Justice

In my previous post I took a look at two prenups that are similar in concept to the Heskem L'khavod Hadadi, which I discussed in the post before that.  I also wrote that I would next discuss the prenup offered by the Center for Women's Justice (CWJ, called Merkaz Tzedek L'Nashim in Hebrew).  There is a link to an English version, but the English version does not have everything that the Hebrew one does (and there is no explanation as to why) and the English translation is inaccurate.  Therefore, my discussion will relate to the Hebrew one, and I will point out the significant discrepancies.

This prenup agreement contains several clauses.  The first clause is similar to clauses that we've seen in other agreements - an agreement to divide any joint property accrued during the marriage according to the civil law in Israel.  

I can point out here, that even this clause is a subject of contention, not just with this agreement, but with other agreements that seek to avoid the fault-based approach to property and ketuba settlements that take place in the batei din.  Many rabbis oppose, based on their claim that the Israeli courts are like gentile courts, that choosing the civil courts to settle disputes rather than the batei din is a transgression.  

This, of course, is not a new dispute in Israel.  Here is not the platform for me to explain all the reasons that almost everyone, including most people who consider themselves halakhically observant, prefer the civil courts in Israel (and outside of Israel) to religious courts.  Here is not the platform for me to explain all that is lacking in what here in Israel is often termed Mishpat Ivri, a term that in my eyes is agenda-driven, where the agenda is to apply what is considered Jewish law in the courts, even the civil courts.  Why don't I just drop a few phrases to make you think about the complexity of the issue: "testimony of women," "punishment for rape," "required evidence to convict a murderer," and, for those of you who are advanced in Jewish law, "asmakhta, qinyan devarim, and obligatory contracts."

I'll return to the subject at hand - the CWJ prenup.  Notice that in that first clause about division of property, unlike the Heskem L'khavod Hadadi, there is no alternative option for the woman to receive 50,000 NIS as her ketuba instead of the equal division of property.  Not only that, it clearly states that the woman waives any claim to the ketuba.  

Well, I didn't want to criticize the Heskem L'khavod Hadadi two posts ago - I said I wanted to start with the positive aspects.  But since I'm now comparing, I will state here that I totally oppose any such unequal property division, afforded by giving a woman this option to take 50,000 NIS as her ketuba.  I realize that this option was probably included in the Heskem L'khavod Hadadi to placate those who were uncomfortable with the idea that the ketuba is an outmoded irrelevant document that is being replaced by the agreement.  But, hey, it is an outmoded irrelevant document that must be replaced.  (To totally replace it, proper wills must be executed as well.)  I also suspect, just as many women in Israel are not in favor of equalizing the Bituah Leumi retirement age and payments (similar, but not identical, in concept to US Social Security) for men and women, there are women who feel that since women have so many disadvantages, the option of a 50,000 NIS ketuba payment helps offset those disadvantages.  I don't accept that.  I think the disadvantages themselves are what need to be addressed, and not offer compensation that accepts and/or maintains a status quo of women in a disadvantaged position in society (or in religious law).  And, it is pretty easy to envision a couple that has far fewer assets than 100,000 NIS worth, and therefore if a woman can claim 50,000 NIS, the man might truly be pressed to be able to pay.  He should not have to pay for the sins of other men who mistreat women.  Equal is equal, and I'm in favor of equal.  I therefore commend CWJ for keeping the ketuba out of this agreement.

The second clause of the CWJ agreement is similar in concept to the other prenups I've looked at so far - monthly payments by the recalcitrant spouse, until a divorce is given/received.  I don't think I need to elaborate any further - you can just look at the previous two posts to see an explanation of this idea. Here, we are talking about the larger of $2000 or 50% of the recalcitrant spouse's salary - same for the man and the woman, as it should be (see my previous post for a discussion of a prenup that does not do that).  As strongly advised in the previous two posts, a couple should consult with halakhic and legal experts regarding the appropriate monetary payments that should be defined in their agreement.

There is no mention here of obligatory marital counseling for a defined amount of time - a reasonable requirement, which we have seen in other agreements.

A detail that I did not point out previously, but I will point out now - because it is lacking in the CWJ agreement - is that in the Heskem L'khavod Hadadi (and some other similar prenups), the calculation of the salary is based on the previous year.  This is important - it prevents a recalcitrant spouse from quitting his (or her) 7-figure-salaried-job (and living off savings or a bonus, or hidden income) when deciding to refuse to divorce just so as to avoid having to pay high payments.  Such things have happened, certainly with cases of men who refuse to pay mezonot (maintenance to the wishing-to-be-divorced wife) or child support.  They conveniently become unemployed.  By basing the calculation on the previous year, such tricks are harder to pull.  Yes, this is a problem inflicted by men, because under Israeli law (which, in this case is a direct result of patriarchal Jewish law), only men are obligated to pay maintenance to a spouse, and only men are obligated to pay child support. Yes, it is unfair, and the men who complain about that are justified in their complaints.

That's why the prenup should include an agreement about equal sharing of child-support - we have seen that in other agreements.   The CWJ prenup does not include such a clause. And such a financial agreement makes sense not just for the case of divorce - I've mentioned that several times in earlier posts.

The third clause reiterates that all disagreements are to be settled in the civil courts.

So far, nothing is radically different from other prenups that I've discussed. But the fourth clause is where this prenup takes a radical turn.  It introduces several concepts: conditional marriage, annulment of the marriage by a beit din, and divorce by proxy.  The inclusion of these three concepts in one agreement was inspired by Professor (and former dayyan) Michael Broyde's proposed "tripartite" agreement.  I will avoid discussing Broyde's misconduct. We can learn from anyone's scholarship, and I'll leave it at that.

I'll briefly summarize the three paragraphs in to this fourth clause of the CWJ agreement and offer my comments on it.  The first paragraph is an agreement that the marriage that will be performed will actually be conditional.  I've mentioned conditional marriage in my blog.  For anyone who wants to have a traditional, halakhic, wedding ceremony, conditional marriage - qiddushin al tenai (technically, that means "conditional betrothal", but these days the betrothal is immediately followed by the nisu'in, the marriage) - is the way to go.  The problem is, and I mentioned this before, a couple will have to make an effort to have such a ceremony.  The rabbinate won't do it - but that is a good thing, because that way, if you have the sense to marry conditionally, then you will, by default, stay away from the rabbinate.

However, the CWJ agreement was actually drawn up with the idea that the agreement would be signed not necessarily at the time of (or immediately before) the ceremony, but some time prior to it, while the ceremony could be conducted by a rabbi from the rabbinate.  I know people who have done this. Big mistake.  Is the mesader qiddushin aware that it is agreed by the bride and groom that this is conditional?  Chances are that had he known, there is no way that he would have officiated at the wedding.  Not if he does not want to risk his permit to officiate at weddings in Israel.  But, in any event, by marrying via the rabbinate - and therefore registering in Misrad HaPnim (Ministry of the Interior) - a couple would be throwing out any value they had in the conditions set.  Divorce would have to be done in a beit din of the rabbinate, who won't recognize the conditions set.  If a woman is widowed, and halitza is required before she can remarry, the beit din will not recognize this conditional marriage.  If a woman's husband becomes incompetent for the purpose of giving a divorce, again, the beit din won't recognize the conditional marriage.  She is stuck, an aguna.

In small print at the bottom of the (English) page (there is a similar statement in the Hebrew), the CWJ agreement states:
At this juncture in time, CWJ doubts that the rabbinic courts in Israel will accept clause 4 as binding under the halakha. Nonetheless, it is our hope that in the future rabbinic courts and halakhic authorities will recognize the necessity for conditional marriages and will authorize their use.
Clause 4 is the clause that contains the conditions.  Therefore, this agreement is not valuable for anyone who chooses to marry through the rabbinate.

Clause 4 defines two conditions for the marriage to be valid (I am following the Hebrew version):
1) that (A) either the couple do not live apart for 18 months or more or that (B) neither the man nor the woman has approached a beit din to execute the document.  (Both could be true, too - it states "at least one".)  I'll express this as A or B.
2) that the groom, if he dies before the bride, will leave a viable descendant (so that halitza is not necessary, in the event that the groom has a brother).  I'l express this as C.

Therefore, the conditions that the marriage be valid can be expressed as: (A or B) and C.  According to Jewish law, every condition must also be stated in the negative form.  Maimonides ruled (Mishne Torah Laws of Personal Status [Hilkhot Ishut] 6:2) that a condition "should be a twofold condition,  that its positive [i.e., the condition that must be fulfilled ] should precede the negative [i.e., what constitutes non-fulfillment of the condition] ..." (This is learned from the way Moshe made a conditional agreement with Reuven and Gad at the end of Parashat Matot.) 

Therefore, the the marriage will be null and void if ~[(A or B) and C].  I'm not a lawyer, but I am a mathematician, so I'l apply De Morgan's Laws and convert this to: ~(A or B) or ~C, which is equivalent to (~A and ~B) or ~C. (See why a core curriculum must include some mathematics?)  In other words, the marriage will be invalid if either the man dies leaving no viable descendant (~C); or the couple lives apart for 18 months or more and one of them files for divorce (~A and ~B).  I switched the order just because the syntax in English is easier to follow.

The English version of condition #1 has "and" rather than "or": A and B, but this is inconsistent with the negative form of the condition as written both in the English translation and the Hebrew version.  So, though I am merely a lay person and not a lawyer, I'd say that there appears to be a problem with the English version!!

I'm not really sure that I see the reasoning behind the addition of what I called "B".  I called it an "addition" because, if you look at the original proposal by Prof. Broyde, you'll see that there is just one condition for the marriage to be valid: no separation for 15 (not 18) months or more.   Such a separation would make the marriage null and void.  Broyde's proposal has nothing more - not even something to avoid halitza.  But I'm not here to critique his proposal.  If you'd like to see critique of his paper, you can read Yehudah Abel's comments.   

Perhaps the reasoning of the CWJ version is that if a spouse disappears - say in war - the remaining spouse must request that the marriage be declared void, rather than for it to happen automatically.  But the English version is misleading, again.  It translates "B" as "neither of us files for divorce".  That is not what the Hebrew version says.  The Hebrew version says "if neither of them turns to a beit din to execute this document" לממש.  That does not mean filing for divorce!!  A divorced woman can't marry a kohen (in the Orthodox world), but a woman whose marriage is null and void can.

Moving on, the second paragraph in the fourth clause allows for hafqa'at qiddushin - annulment of the marriage by a beit din - in the event that the conditions that validate the marriage are not upheld.   The English version of this portion, entitled "Condition, Annulment, and Agency," has a very brief and inaccurate translation. I have no idea why.  I suspect it is just sloppy or incomplete work.  I will not point out all of the problems with this portion's translation.  I'll just state that this should be corrected - if the English version is there to help people who are not comfortable enough with the Hebrew, then those English-readers are being misled.  Marriage agreements are not a place for sloppy work.

But even the Hebrew text is extremely problematic and must be corrected before use.  The Hebrew text states that the couple authorizes a beit din (which beit din?  Don't look to one in the rabbinate!) to annul the marriage in the event that the conditions stated above are upheld - בהתקיים התנאים. Certainly they mean "if they are not upheld"!  It is true that if they are not upheld it means that they live apart for 18 months or more, etc. (see above). A condition can be stated in the negative, for example, "I will return your security deposit on the apartment so long as you don't damage the apartment."  If the condition of not damaging the apartment is upheld, I'll return the security deposit. If the condition is not upheld, that is, if you damage the apartment, then I won't return the security deposit.  Which is the condition?  (See my quote from Maimonides, above.)  The text must be much more carefully worded so as not to be ambiguous.  There are enough examples of various conditional obligatory agreements in the halakhic literature that could be emulated so as to offer a far better-written (and unambiguous) document.

Explaining hafqa'at qiddushin in this post is not feasible - it is already quite a long post.  This paper by Avshalom Westreich is a good one (there are many) to look at for a presentation of this halakhic approach to nullifying a marriage.

The third and final paragraph in the fourth clause of the agreement is appointment of a beit din by the man, who authorizes this appointed beit din to write a get that is to be delivered, by agency, to the woman, in the event that the conditions stated above are not upheld.  Again, it states that the get would be given if the conditions stated above are upheld - שבהתקיים התנאי, but, in my opinion, this is not worded correctly.  I don't think there is a need to repeat why.  I  also wonder what happens if the people appointed are no longer in this world, or cannot be found.  How valuable is it to appoint a beit din "from now"?  I realize that in Jewish law, one can say "from now" and have it actually retroactively done later, but if a man turns into a recalcitrant spouse, later might not come.  So honest-to-goodness now is better than nothing.

Why so many different methods of dissolving the marriage?  Either it is simply null and void by virtue of the conditions not being upheld, or it is annulled by a beit din, or a divorce is sent?!!  Well, which one is it?  Why, at least, is a preference not stated?  (It is better for the marriage to be null and void - then a woman has no problem if she wants to marry a kohen, though that issue is a topic in itself, not to be touched here.)  Should we change all the or's to and's? Well, that wouldn't make sense - can it be null and void but in need of a get? (Actually, many poskim who oppose hafqa'at qiddushin say that hafqa'at qiddushin can only be implemented by a beit din if there is some kind of get - you can read the references linked to, to learn about that).  And, don't forget the earlier portion of the agreement, with the monthly payments, meant to encourage a recalcitrant spouse to agree to divorce.

In his article about the "tripartite" agreement, Broyde explains that each one of the three approaches (reflected in the fourth portion in the CWJ prenup) has support from some poskim.  (But none of them has support of all poskim.) So, by throwing everything in, including the kitchen sink (now you get the title of this post), maybe something will actually work and be accepted by the Orthodox community.

I would rather say:  pick what you think is a good solution, and have the courage of your convictions.  In my humble opinion, the most viable one of the above is the conditional marriage - a couple is not reliant on any beit din (so long as you don't include what I called B above).  Then a person is reliant on his or her own belief in the method and its halakhic justification, and his or her own conscience.  If the condition is not upheld, the marriage is as if it never happened.  That's it?  No public declaration?  No ceremony?  Like breaking up with a live-in boyfriend?  Well, if you think there is a vacuum, you might see the value of a prenup (or additional clause) along the lines of what I intended to look at in this post as well, but will defer to the next post.

To conclude, I will draw an analogy to this agreement, which includes so many methods of dissolving a marriage in the hopes that one of them will work.  It is like the cancer patient who needs surgery, chemotherapy, and radiation.  The prognosis is not too good.  The disease is quite advanced.  Jewish marriage and divorce law is the patient here, and if it needs so many treatments to fix the problem, then maybe it is beyond repair.  Unfortunately, there is no cure for cancer.  If all else fails, throw everything at it (I know - that does not always make sense for cancer, either).  There is no cancer preventative either.  

With Jewish marriage law, if a couple is already married and one of the spouses wants to dissolve the marriage but one is recalcitrant, try whatever tools might work.  But there is a simple preventative to the problems in Jewish marriage laws:  don't smoke, and if you haven't yet, "be smart, don't start".