One of the hallmarks of Western society is the distinction between the legal and ethical realms. It is the height of political incorrectness to pass judgment on another’s moral choices. The extent of this dichotomy was evident in a recent news story regarding the high profile marriage break-up of a recently retired hockey player, allegedly due to an affair with a member of parliament. The story quoted family lawyers who stated that adultery is no longer a factor the courts take into consideration when allocating the financial assets to each party when a marriage fails.
Judaism takes a much different approach. Issues of morality often have legal and financial consequences. While Judaism basically has a no fault divorce system – a couple can divorce for any reason – fault does come into play in dividing up the financial assets of the couple. From a legal perspective – and marriage is much more than that - marriage is a private contract between two individuals (need I say a man and a woman) which imposes certain financial obligations, primarily on the husband, many of which are spelled out in the ketuba. Upon dissolution of the marriage the husband would pay the pre-agreed sum that had been stipulated in the ketuba. This was a one time payment and was thus often quite a substantial sum. Jewish law, I believe quite brilliantly, allowed the couple to sever all ties upon divorce. The western system of monthly alimony can create unneeded tensions between people who may genuinely dislike one another, not to mention the potential of non-payment as time progresses. Even the issue of child support – beyond the scope of this article - was arranged in such a way so that the divorcing couple would have minimal contact.
Nonetheless the wife could lose her claim to financial windfall of the ketuba if she were to be found at fault for the marriage dissolution. Such forfeiture would occur if she for example secretly fed her husband non-kosher food – eating it herself is not grounds for divorce, or if she refused to follow the laws of family purity. Interestingly included in this list (Talmud Ketuvot 72a) is cursing one’s in laws in the presence of one’s spouse and conducting oneself in an immodest fashion, examples of which are spelled out in the Talmud. It goes without saying that having an affair, and one must be faithful even to the extent of forfeiting one’s life, would cause one to lose any financial support from one’s ex- husband. These financial penalties are reciprocal, with the wife being able to demand a divorce if her husband is guilty of such moral wrongs. Thus a woman can demand a divorce with full payment of her ketuba if her husband has had an affair.
Modern day authorities point out that a number of the examples listed may not be operative today. As mentioned above non-observance of the laws of family purity is grounds for divorce and the loss of ketuba. During Talmudic times – and until the modern era – it was self evident that a Jewish couple would observe this cornerstone of Jewish marriage. Unfortunately this is no longer true. At times we face a situation in which one spouse decides, often years into the marriage, that they will observe these laws. If tragically the couple can not solve this religious difference and divorce ensues the observant party would be “at fault” and thus if it is the woman who has become observant she would be unable to collect her ketuba. While this new found observance is most commendable it may not come at the expense of the non-observant spouse.
Comments rabbijay@torahinmotion.org
Rabbi Jay Kelman is a Founding Director of Torah in Motion, an adult education institute dedicated to exploring the intellectual richness of Judaism and applying that wisdom to our everyday challenges. www.torahinmotion.org
Rabbi Jay who teaches Talmud and Ethics at TanenbaumCHAT a community High school of over 1,400 students in Toronto is a Chartered Accountant (CA) and writes a monthly column Money matters for the Canadian Jewish News.
