In the past two issues, we have discussed the many Halachic implications of the financial relationship between husband and wife, including Bittul Chametz. In the first part of this series, we outlined the classic approach to the husband-wife financial relationship in which, simply put, the husband owns all of the marital assets except for the personal property the wife brought into the marriage. Last week, we began to present an intense debate between two great contemporary Dayanim, Rav Shlomo Dichovsky and Rav Avraham Sherman, as to whether Halacha can assimilate Israeli secular community property laws, which mandate evenly splitting marital property in case of divorce or death.
Last week, we focused on whether the Tenaim conducted at many weddings constitute a community property agreement (that all marital assets are jointly owned) and whether Dina DeMalchuta Dina applies to Israeli community property laws. We noted that neither of these approaches was particularly successful in proving that Halacha recognizes these laws. This week, we shall focus on whether Israel’s secular community property laws can be assimilated into Halacha (regarding Jews who reside in Israel) based on Minhag HaMedinah, common practice in a particular locale.
In the past two issues, we noted that Halacha 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 the Halacha (Minhag Mevateil Halacha; see Yerushalmi Bava Metzia 7:1). A classic example is presented in the Mishnah (Bava Metzia 83a) that 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.
This rule has particular relevance to the manner of paying the Ketubah in case of death or divorce. The Rambam (Hilchot Ishut 23:12) and the Shulchan Aruch (E.H. 66:11) specifically state that “In all of these matters and those like them, 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 financial relationship without stipulations intend that the relationship should function in accordance with local customs.
Indeed, the Chazon Ish (C.M. Likutim number 16), in an oft-cited comment, states that even in cases where the rule of Dina DeMalchuta 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 local laws regarding corporations despite the fact that these laws do not conform to Halacha (see a 2005 ruling on this subject made by the Tiberias Beit Din, printed in Techumin 26:357-361). A classic case from the fifteenth century involved a woman from Portugal who claimed that she was entitled to half of her late husband’s estate based on the local custom that a widow inherited half the estate. Maharashdam (C.M. 327) ruled in favor of the woman even though Halacha does not allow her to inherit any of the estate (see the series on this subject available at www.koltorah.org).
Rav Dichovsky, in turn, argues that the Minhag HaMedinah regards the marital relationship as a full financial partnership. He writes:
The practice, even in Chareidi (“ultra-orthodox”) 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 an Israeli rabbinic judge], including the wills of the most Chareidi families, and I have not found even one of them where the wife has been requested to forego her share in the estate in favor of the Halachic heirs, with the exception of a second marriage and cases where the husband died shortly after the wedding [Rachamana Litzlan]…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 from clear information, views his wife as a full partner in the family’s assets. Civil courts have not conceived the idea of communal property based on an ideology that is antithetical to Torah values; rather, [their rulings] reflect the reality of contemporary families, including Chareidi families.
Rav Sherman’s Response
Rav Sherman, in response, notes that the aforementioned Rambam and Shulchan Aruch follow Minhag HaMedinah only in a situation where “that custom has been accepted throughout the community.” One may assume that the parties’ implicit consent to the common practice applies only if it is indeed common practice. Rav Sherman argues that managing the families’ assets as an equal partnership is not a widespread practice. Moreover, involving one’s wife in decisions regarding the family’s finances does not imply that ownership of half of the assets has been transferred to her. Wives may have an equal say in managing financial matters in a healthy marriage nowadays, but it is quite a leap to claim that this implies that she has been given title to half of the assets.
Rav Dichovsky replies 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), who say that if one gives a gift to his wife and the marriage later sours, he is not entitled to recover the gift. The Geonim compare this to one who presents a gift to a friend and the friendship later dissolves; the giver cannot reclaim the gift with the argument that had he known they would become enemies, he never would have gifted him the article.
The story that introduced this series, in which almost all the Rabbanim 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 husband and wife today are financial partners on an equal footing.
Explicit Agreement to Split Assets Based on Community Property Laws
Rav Sherman goes as far to rule that Halacha does not recognize communal property rules even if both 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. (For a review of the parameters of this injunction, see my Gray Matter 2 pp. 164-178.) Rav Dichovsky strongly disagrees with this point. In fact, the prenuptial agreement endorsed by the Beit Din of the Rabbinical Council of America and Orthodox Union, based on a ruling of Rav Zalman Nechemia Goldberg (Lev Mishpat 1:286; for an explanation, see my Gray Matter 2 pp. 170-172), offers the option for a couple about to marry to agree to divide marital assets based on the community property laws (or equitable distribution laws) at the time of the signing of the document.
The Response of Other Dayanim
In a later article (Techumin 26:157), Rav Dichovsky 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 if not the leading Halachic authority regarding monetary matters, does not seem to accept Rav Dichovsky’s ruling (unless the couple explicitly accepted common property law in effect on the day of the signing of the agreement). Rav Yaakov Ariel, a leading Halachic authority in the Israeli
Religious Zionist community, also does not accept Rav Dichovsky’s approach due to the inequity of communal 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 in next week’s essay.
Fair Alternatives to Communal Property Laws
There are alternative means of dividing marital assets without resorting to secular communal property laws. Indeed, most states in the United States reject the communal property approach due to gross inequities that can result, as we have discussed in last week’s essay. Instead, a variation of community property laws, known as equitable distribution, is employed. Equitable distribution means that marital assets are divided fairly, whether that means fifty-fifty or in some other proportion. Among the factors considered (the factors vary from state to state) are duration of the marriage, spousal abuse or marital infidelity, economic fault of one spouse in wasting and dissipating marital property, one spouse having done all the work to acquire the property, the responsibility 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 his/her career goals in order to better serve the family’s interests. Rav Aryeh Yehuda (Ronnie) Warburg, a leading Dayan in the United States, reports that some Dayanim will employ civil equitable distribution laws as criteria to divide marital assets. In addition, we mentioned last week that some Dayanim subscribe to the idea of “divorce compensation,” which works somewhat like equitable distribution laws.
Rav Warburg also writes (HaDarom 70-71:131) that the prevalent view among Dayanim in Israeli Batei Din is to regard property listed in the name of both spouses as jointly owned property even if the husband’s assets financed the purchase. They view a case where the husband financed the purchase of a house and listed his wife as co-owner as a gift from the husband to his wife that 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. Accordingly, in many marriages the couple creates a partnership by listing both partners as joint owners of its property.
Finally, Rav Hershel Schachter argues that a woman is entitled to the money she earns from a full-time job. Although Halacha states that a wife’s earnings belong to her husband (see Shulchan Aruch E.H. 69:3-4), the Dagul MeiRevavah (E.H. 80:1) raises the possibility that a woman is entitled to her earnings acquired through extraordinary efforts, referred to as “Haadafah Al Yedei HaDechak.”
Rav Schachter adopts the following approach: The wife’s earnings that belong to her husband apply to small scale work such as, to use Rav Schachter’s example, typing an occasional term paper for students who pay for her services. However, if she works as a full-time worker, she may claim Kim Li (lit. “I follow,” see the Bach cited in the Beit Shmuel 80:2) the opinions that rule that Haadafah Al Yedei HaDechak belongs to the wife and that she therefore enjoys the exclusive right to her salary. Rav Schachter applied this approach in an actual case. A husband donated every spare cent in the couple’s bank account to Tzedakah, leaving the couple no money to spend on even a very modest vacation. Rav Schachter advised the wife to open a separate account in her own name that would be funded exclusively with the money she earned from her job, which she could later use to pay for a reasonable vacation for the couple.
We should note that Rav Moshe Feinstein (cited by his son Rav Reuven Feinstein in an article that appears in the Memorial Volume to Rav Tzvi Tennebaum entitled Sefer Eitz Erez) agrees that a wife’s salary belongs to her. He even believes 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.
Rav Dichovsky appears to constitute a minority opinion among contemporary Dayanim in regards to Halacha adopting community property law. Nonetheless, most Dayanim strive to insure that in case of divorce, marital assets are divided in a manner that provides for a wife’s financial needs. Next week, we shall conclude this series with a discussion of the many Halachic ramifications (including Bittul Chametz) of the changing financial relationship between husband and wife.