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1The Ketubah in America

Its Value in Dollars, its Significance in Halacha

and its Enforceability in Secular Law

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Introduction

One of the questions frequently posed in contested divorces is how to assess the value of a ketubah, the marriage contract that serves as an indispensable part of every Jewish wedding. People generally understand that the ketubah describes the Jewish law obligations of a husband towards his wife during marriage, as well as his financial obligations upon death or divorce. For example, the standard form ketubah states that the husband obligates himself to pay his wife 200 zuz as well as 200 zekukim of silver upon death or divorce. However, many people view the ketubah more as a quaint symbol of the marriage ritual rather than as a legally enforceable document. What happens, however, when one party seeks to enforce their ketubah rights?

This article explores three different issues related to enforcing ketubot.1 The first is the value — in dollars — of the

Rabbi Broyde is an Associate Professo r of Law at Emory University, and a me m b e r of the Beth Din of America. Rabbi Reiss is the Director of the Beth Din of America.

1 'Ketubo t' is the plural of ketub a h .

food, clothing, needs, and cohabitation according to the way of the world.

The talmud makes clear mention of the fact that the standard amount of money in a ketubah was 200 zuz for a first marriage.3

The amount of 200 zuz is equivalent to 50 shkalim in the Jewish monetary system.4 Each shekel is generally valued at approximately 20 grams of silver,5 so that 200 zuz, strictly speaking, should equal the value of about 1000 grams of silver, or one kilogram (2.2 pounds) of silver.6 Yet other halachic authorities posit an even lower amount as many Sefardic authorities rule that the ketubah can be paid in diluted silver (called kesef hamidana, commercial grade silver) which might only contain as little as 120 grams of silver in 200 zuz.7 Thus, if the ketubah is valued by the silver content of 200 zuz, it is a paltry amount.8

The standard Ashkenazi ketubah also recounts as follows:

The dowry that she brought from her father’s home in silver, gold, ornaments, clothing, household furnishing, and her clothes amounting in all to the value of 100

ZAKUKIM of pure silver, the groom has taken upon himself.

3 See e.g., Ket u b o t 10b; Ra m b a m , Ish u t 10:7; Sh ulc h a n Ar u c h EH 66:6.

4A pidyo n habe n require s 5 selaim or shekali m, and in each sela / s h e k el there are four den a ri m ; a dinar and a zu z are the sa me amou n t . See Encyclopedia Tal m u d i t, Dinar, 7:398 - 406.

5See Encyclopedia Tal m u d i t, Dinar, 7:398 - 406.

6Chazon Ish EH 66:21 notes that much silver sells in the modern market place as only 84% silver, with the rest being additives, and thus one has to add 16% additional weight to sterling silver to make it 'pure'. In addition, Chazon Ish notes that one needs to factor in the costs of delivery and taxes into the husband's payment obligations. In fact, in modern America, silver sells in a number of different purity grades; pre-1965 coins are 90% silver, and thus sell at a discount to the spot silver market for pure silver. Other silver coins are only 40% silver and thus sell at a deeper discount. For a discussion of the modern silver market, see www.certifiedmint/silver.htm.

7See Sefer Nisuin Kehilchat a 11:80 - 83.

8 Chaz o n Ish himself posits that a 200 zu z is wort h only 570 gra m s of silver, or a little more tha n 1 pou n d .

The groom has also consented to match the above sum by adding the sum of 100 zakukim of pure silver making a total in all of 200 ZAKUKIM of pure silver.

Based on this recounting of the pre-agreed upon value of the assets of the wife, Ashkenazi halachic authorities concluded that it would be more appropriate to value the ketubah in accordance with his understanding of the value of the "200 zekukim of pure silver" that are added in every standard ketubah in addition to the base amount of 200 zuz that is the husband's obligation, as this amount also needs to be returned to the wife upon divorce. 9

However, the term zekukim is not a talmudic term, and there is quite a bit of disagreement as to what it means and what coin it refers to. Rabbi Moshe Feinstein places the value of 200 zekukim of silver at 100 pounds of silver (approximately 45.5 kilograms).10 A similar such view can be found in the Chazon Ish11 who posits that the value is closer to 127 pounds of silver (approximately 57 kilograms).12 Both of these views assume that the term zekukim is a reference to a large medieval coin of considerable value. Each zakuk weighs a half of a pound or more.

There are at least two other viewpoints concerning the valuation of the 200 zekukim of silver described in the ketubah: the first is that of Rabbi Chaim Naeh13 who ruled that the value of 200 zekukim is 8.5 pounds of silver (approximately 3.85 kilograms).14 Yet others posit that the term zakukim reflects yet some other coin, and 200 zekukim are valued at between 10 and 14 pounds of silver.15 Of course, there is the view of many seferdi poskim who posit that the 200 zekukim can be paid with diluted silver,

9 Indee d, this is the stan d a r d and unch a n ge a ble text of the ketub a h for ashke n a z i m, thus increa sing its univer sality and thus its enforcea bility. See

Ot z a r Hap os k i m Even Hae z e r, Nus ac h Hake t u b a h Volume 19, pages 57 - 103. 10 Iggero t Moshe EH 4:91 - 92.

K'Helchat a m 11:97. (Nachlat Shiva 12:49 is some ti m e s quote d as holding that

200zek u ki m is worth 2.5 times the value of 200 zu z, but prob a bly held that 200 zek u k i m is closer to 3.75 times the value of 200 zu z .

15 See Rabbi Aryeh Kaplan, Made in Heave n at page 113.

thus drastically reducing the amount that needs to be paid.16

Once we value the ketubah based on no more than 200 zekukim of silver and follow the view of Rabbi Feinstein or Chazon Ish concerning the amount (rather than focusing on the base amount of 200 zuz), most decisors generally follow the view of the author of the Bet Shmuel17 that we do not separately add the value of the base ketubah obligation of 200 zuz to our calculation but rather consider everything included in the 200 zekukim of silver, since the face value of 200 zuz, as noted earlier, represents such a paltry amount in comparison to 200 zekukim that it is considered to be subsumed within that amount (although it may be appropriate to add the 200 zuz separately if the view of Rav Chaim Naeh is adopted).18

One final view is worth noting. The Mishnah and the Jerusalem Talmud19 indicates that the base amount of "200 zuz" is meant to correspond to a year's worth of support for a single person.20 Rabbi Shimon Meshantz and Rabbi Ovadya Bartenura state explicitly that "One who has 200 zuz cannot take charity as this

16 The Israeli work, Nesu'in Kehilchat a 11:97(no te 200) avers that such in the practice of the Israeli Rabbinical courts.

17 Even Haeze r 66:15.

18 See Drisha , Even Haeze r 66:3. See gener ally Nisuin Kehilchat a 11:98.

19 Peah 8:7 (in the stan d a r d mish n a h , it is 8:8).

20For an elaboration on this, with a full discussion of the many sources supporting this view, see Rabbi Chaim Benish, Medot Usheurai Torah Chapter 23, at pages 398-405. He explicitly states that in talmudic times 200 zuz was a years support.

On a more theoretical level, there is a claim to be made that

200zuz is not the amount needed for one years support, but rather is the amount of principle needed to generate yearly income equal to a years support. Thus, a person with no skills and no job, is considered poor if he has less than 200 zuz and may take charity, whereas a person with 200 zuz is never poor, even if they lack any skills at all; Shulchan Aruch Yoreh Deah 253:1-2. This approach also explains why a widow is entitled to either perpetual support out of her husband's estate or her ketubah payments — the two serve the same purpose, and are equal to the same amount; Shulchan Aruch Even Haezer 93:3. However, these writers have found not a single halachic authority who accepts this valuation of 200 zuz for the purposes of valuating the ketubah.

amount [200 zuz] is the cost of food and clothes for a year."21 Based on this understanding of the function of 200 zuz as a year's support, it has been the practice of a number of rabbinic tribunals to assess the 200 zuz in the ketubah in accordance with the amount of contemporary currency that would reasonably correspond to one years's support even if this amount is far in excess to the formal value of the silver coinage described in the ketubah document itself.22 By this measure, all Jewish law weights and measures change as it is their food and goods purchasing power (in dollars) that the Talmudic Rabbis focused on, and not their silver content.23 The silver coins used in the Ketubah represented certain values corresponding to different purchasing power, but did not necessarily establish a fixed value for all time based on the worth of the silver alone. Therefore, some poskim have concluded that, irrespective of the current value of silver, the value of the ketubah should be equivalent to one year's support.24

B.A Sample Calculation in Dollars

A troy ounce of .999% silver was worth approximately $4.60 on August 6, 2002 in the New York City silver spot market, and this can be used to calculate the value of a ketubah, according to the various views.25 The net cost on that day for actually

21 Ras h Mesh a t z and Bart e n u r a on Peah 8:8.

22 This view is clearly conte m p l a t e d by Se m a , Chos h e n Mishp a t 88:2, and is perh a p s accept e d as correct by Sh ac h YD 305:1. (See also Derish a CM 88 who elabor a t e s on the above Se m a .) See Av n e i Melui m 27:1 who avers that Rashi and Ritva accept this view. (But see Cha z o n Ish , Even Hae z e r 148, who posits that the Ritva rejects this view). See also Riv as h 153 who also poses this questio n, but rejects the conclusio n of the Sema.

23 Indee d, there are significan t halachic autho rities who suggest that this is the rule for mos t amo u n t s foun d in the Talmu d, such as the per u t a h or the dinar, which shoul d be linke d to the price of food the a day, or week or mon t h or year. See Se m a , Chos h e n Mishp a t 88:2 who state s "according to this, nowa day s, when one cann o t purc h a s e with a peru t a h only a very small amo u n t, accor din g to Jewish law we should say that a woma n canno t marry with a peru t a h". A

per u t a h in talm u dic time s was one - thirtee n t h of the amou n t a perso n need e d to sup p o r t himself for a day; see Rabbi Benish, supr a note at page 401.

24The mean cost of living in Switzerland is 1.67 that of the mean cost of living in the United States ($167,000 in Switzerland purchases that which $100,000 purchases in America). The cost of living in Atlanta, Georgia is less than half the cost of living in Manhattan.

25One kilogra m equals 32.150 7 6 troy ounce s . One gra m equals .03215 troy

delivery of one ounce of pure silver was about $5.60 per ounce.26

1.The current value of the ketubah (zuzim plus zekukim) according to the Chazon Ish would be approximately $10,263.

2.The current value of the ketubah (zuzim plus zekukim) according to Rabbi Feinstein would be approximately $8,192

3.The current value of the ketubah (zuzim plus zekukim) according to Rabbi Chaim Naeh would be approximately $693.).

4.The value of 200 zuz alone27 would be approximately $180.28.

5.The value of the ketubah as one year's support would be between $15,000 and $55,000.29

Each of these amounts (except for the last) would be reduced by 87.5% according to those sefardic authorities who allow for diluted silver (kesef hamidinah) which is only one-eighth silver (although nearly no Ashkenazic decisors accept this view).30

C.How To Rule on this Dispute

Given the diversity of views found in the normative halacha, whose view should one follow? Three different answers to that

ou n c e s .

26 See Ch a z o n Ish , sup ra note , for an explana tio n . In order to actually purc h a se and take delivery of a 100 ounce silver bar one need s to add betwee n 65 and 85 cents per ounce delivery fee plus sales tax of 6%. (Verified by opera t o r, at Certified Mint Inc., and note d as correct at htt p: / / c e r t ifie d mi n t . co m . For this article, we assu m e an average of 75 cents.)

27 Represe n ti ng the base amou n t of the ketu ba h, which is equivale nt to 50 shk ali m , which would be 10 times the amou n t of the value of pid y o n ha b e n .

28 See also Piskei Din Rab a n n i m 11:362. According to these values, the curre n t

pid y o n ha b e n is equivalen t to 3,840 perutot - or 1,920 it follows that the technical value of a perut a h is curre n tly less than half a pen ny.

29 And would vary depe n di n g on location; see note . If the possibility of 200 zu z being equal to per pe t u al sup p r t were seriou sly consid e r e d, the amo u n t would be even more; but see the end of note .

30 See Nesuin Kehilchat a 11:77 - 83.

question are found.

One view is that matters of ambiguity in a document are decided against the one who is seeking enforcement. Thus, Rabbi Ovadya Yosef and Rabbi Yosef Kapach adopt the view that the woman receives the lowest amount plausible, as she bears the burden of proof, which she cannot meet.31 (A similar such view is suggested by Rabbi Chaim Gedalia Zimbalist in a letter to a member of the Beth Din of America.32)

Another possible answer is accepted by Rabbi Mordechai Eliyahu, who posits that normative halacha accepts the view of Rabbi Feinstein and the Chazon Ish, and that a ketubah is worth about 120 pounds of silver.33 Indeed, a strong claim could be made that minhag Ashkenaz is to follow this view, and it is only sefardi decisors (such as Rabbis Yosef and Kapach, above) who reject this view.34 For that reason, all Ashkenazi ketubot make clear reference to the 200 zekukim standard, rather than the sefardic practice of varying the amount depending on the woman and man.

Another possible answer this that matters of interpretation have a local context to them, particularly in words such as zakukim that are ill defined, and that one should follow local custom on these matter;35 in America, this is a strong argument to follow the view of Rabbi Feinstein in evaluating the ketubah, who was the pre-eminent decisor for American Jewry.

33 See the disse n t by Rabbi Mordec hai Elayah u in Israeli Rabbinical Court in PDR 11:362 (5740).

34 Indee d no Ashke na z i decisor with the stat u r e of these two autho ritie s has argue d with the m .

35 This is explicitly note d as a significan t factor by Mah a r s h d a m EH 187. Indee d, there is an open questio n as to wheth e r one says that the one who is seeking to enforce a contr ac t has the weaker han d in cases such as this were the woma n had no han d in the crafting of the docu m e n t; see for example, Nac h al Yit z c h a k 61:4 who note s that there are cases where a docu m e n t is constr u c t e d agains t the one who wrote it, and not against the one who is seeking to use it.

This view is additionally supported by the basic talmudic principle that the purpose of the ketubah was to mandate payments in cases of divorce high enough so that a man would not hastily divorce his wife. Payments of $25, $100, or even $1,000 hardly accomplish this talmudic mandate. Consistent with this notion, it is noteworthy that Rabbi Feinstein dismissed the European practice which was to evaluate the ketubah at 75 rubles because this sum would be laughably small nowadays.36

All of this, however, assumes that the ketubah is of worth in resolving financial disputes related to divorce. As explained below, that is, itself, subject to dispute.

II.Is a Ketubah Enforceable as a Matter of Jewish Law?

A.Talmudic Rules

The intrinsic nature of marriage and divorce in halacha is different from that of any other mainstream legal or religious system in that entry into marriage and exit from marriage through divorce are private contractual rights rather than public rights. Thus, in the Jewish view, one does not need a governmental "license" to marry or divorce. Private marriages are fundamentally proper, and governmental or even hierarchical (within the faith) regulation of marriage or divorce is the exception rather than the rule.37

36 See Iggero t Moshe YD 1:189 - 191 where Rabbi Feinstein clearly endo rs e s the view that the Ketuba h has to be an amou n t large enoug h to deter divorce no matte r what the price of silver really is. Indee d a plausible argu m e n t can be adva nce d that Rabbi Feinstein fund a m e n t a lly accep t s the view that 200 zu z is a refere n c e to a years sup p o r t, and that Rabbi Feinstein wrote his tesh uv a

becau s e the rapid increa se in silver prices at the time the respo n s a (tesh u v a ) was writte n (circa 1980) had create d the ano m alo u s situa tio n where the value of the 200 ze k u k i m of silver in the ketub a h exceed e d the cost of sup p o r ti ng a single woma n for a year (silver peake d in 1980 at $25 an ounce for pure silver, in which case 100 pou n d s of pure silver delivere d to the door would have been worth more tha n $40,00 0, which would be muc h more tha n one years sup p o r t in 1980 for a single perso n . According to this position, Rabbi Feinstein' s view is

37 This view stan d s in shar p contr a s t to the historical Anglo - America n com m o n law view, which treats a private contr a c t to marry or divorce as the classical exam ple s of an illegal and void contra c t; the Catholic view, which treat s marriage and ann ul m e n t (divorce) as sacra m e n t s requiring ecclesiastical coope r a tio n or blessing; or the Europea n view, which has treate d marriage and divorce as an area of public law. This should not be misu n d e r s t o o d as denying the sacra m e n t a l parts of marriage (of which there are many); however the

This view of entry into and exit from marriage as contractual doctrines is basic and obvious to those familiar with the rudiments of Talmudic Jewish law. While the gemera imposes some limitations on the private right to marry (such as castigating one who marries through a sexual act alone, without any public ceremony38) and the Shulchan Aruch impose other requirements (such as insisting that there be an engagement period39), basic Jewish law treats entry into marriage as one of private contract requiring the consent of both parties.40

Exit to marriage was also purely contractual (except in cases of fault), but according to Torah law, was a unilateral contract that did not require the wife's consent. Thus, according to unmodified Torah law, exit from marriage was drastically different from entry into marriage. Divorce did not require the consent of both parties. The marriage could end (absent fault) when the husband alone wished to end it. Marriage was imbalanced in other ways as well; a man could be married to more than one wife, any of whom he could divorce at will, whereas a woman could be married to only one man at a time, and she had no clearly defined right of exit, perhaps other than for fault.

From very ancient times, and according to some authorities, in some marriages even according to Torah Law,41 the husband's unrestricted right to divorce was curtailed through contractarian means, the ketubah. The ketubah was a pre-marital

contrac t u al view pre do m i n a t e s in the beginning - of - marriage and end - of - marriage rites. This is ably demo n s t r a t e d by Rabbi J. David Bleich, Jewis h Divorce: Judicial Misconceptio ns and Possible Means of Civil Enforce m e n t , 16 Conn. L.R. 201 (1984).

39 Shulch a n Aruc h, Even Haeze r 26:4.

40 Marriages entere d into witho u t conse n t, with conse n t pre dicate d on frau d or dure s s, or groun d e d in other classical defects that mode r n law might find more applicable to com m e r cial agree m e n t s are unde r certain circu m s t a n c e s void in the Jewish traditio n . For more on this see Michael Broyde, Marriage, Divorce and the Aba n d o n e d Wife in Jewish Law: A Concept u al Appro ac h to the Agu n a h Proble ms in A m e ric a . (Ktav, 2001) in Appen d ix B, entitle d "Errors in the Creation of Jewish Marriages."

41 There is a disp u t e as to whethe r this require m e n t is biblical or rabbinic in cases of a first time marriage; all agree it is rabbinic for secon d marriage s; see Shulch a n Aruc h EH 65.

contract, agreed to by the husband and wife,42 that contained terms regulating the conduct of each party in the marriage and discussing the financial terms would the marriage dissolve through divorce or death. While the ketubah does not explicitly restrict the unilateral right of the husband to divorce his wife for any reason, it did impose a significant financial obligation on the husband should he do so without cause — he would pay her a considerable amount of money. Indeed, the Talmud readily states that the ketubah was instituted so that "it will not be easy [cheap] for him to divorce her."43 In addition, and more significantly, the Talmud mandates that the couple may not commence a marital (sexual) relationship unless both the husband and wife have agreed on the provisions of the ketubah and one has been executed.44

Thus, while the right to divorce remained unilateral with the husband, with no right of consent45 by the wife, it was now restricted by a clear financial obligation imposed on the husband to compensate his wife if he exercised his right to engage in unilateral divorce (absent judicially declared fault on her part). Their are even views among the rishonim that if the husband cannot pay the financial obligation, he is prohibited from divorcing her except in cases of fault.46 Indeed, the wife, as a precondition to entry into the marriage could insist on a ketubah payment higher than the minimum

42 For reaso n s beyon d the scope of this pape r, this agree m e n t is not signe d by either the husba n d or wife, but merely by witness e s . This is so becau se the Jewish traditio n man d a t e d generally that all contr ac t s need not be signe d by the partie s, but merely by witne ss e s, so long as the parties asse n t to the condition s foun d within the m .

43 Ye v a m o t 89a, Ket u b o t 11a.

44 There is consid e r a ble evidence that the prese nc e of such a man d a t o r y pre n u p t ial agree m e n t provide d consid e r a ble leverage for wome n to add provision s to their pre n u p ti al agree m e n t s regulating othe r aspec t s of their

right to marry anot he r at so me futu re date, contr ac t u ally limiting the husb a n d ' s biblical right to be polyga m o u s . See Rabbi Abraha m H. Freima n n, Sed e r

Kidus hi n ve Nis u'i n Ac h a r a i Cha ti m a t Ha - Tal m u d (Mossad Harav Kook, 1944) and Mordechai Akiva Fried m a n, "Polygyny in Jewish Tradition and Practices: New Sources from the Cairo Geniza," PAAJR 49 (1982), 55.

45 The wife, however, needs to be aware of the divorce, even as she does not conse n t . See Ramba m, Ger us hi n 1:1 - 3.

46 See Sh ulc h a n Ar u c h , Even Hae z e r 119:6, and Chel k a t Mecho k e k 119:5 for a prese n t a tio n of the differe n t views on this matte r .

promulgated by the rabbis.47 Of course, divorce could be by mutual consent, subject to whatever agreement the parties wished.

Thus in talmudic times, the economic rules for divorce were as follows:

1.The husband had a unilateral right to divorce and had to pay a pre-agreed upon amount to his wife (agreed to in the ketubah, but never less than 200 zuz) upon divorce, except in cases of fault.

2.There was divorce by mutual consent with payment to be determined by the parties.

Consequently, in a case where the husband wanted to divorce his wife, he could do so against her will, and pay her the Ketubah. She could not under such circumstances sue for divorce48 as a general rule, although she could perhaps restrict his rights through a ketubah provision.49

B.The Impact of the Ban of Excommunication of Rabbenu Gershom concerning Coerced Divorce and Polygamy

Rabbenu Gershom, through his bans on polygamy and forced divorce, fundamentally changed the basic halacha in divorce. The decree of Rabbenu Gershom50 was, for a variety of reasons, social, economic, and in order to equalize the rights of the husband and wife to divorce, it was necessary to restrict the rights of the husband and prohibit unilateral no-fault divorce by the husband.51 Divorce was limited to cases of provable fault or mutual consent. In addition, Rabbenu Tam posits, and the normative halacha accepts that fault is narrowed to exclude cases of soft fault such as unprovable repugnancy, and in only a few cases could the husband be actually forced to divorce his

47 And, as note d above, the Ashke n a z ic custo m was to do just that and add the ter m 200 ze k u k i m to the ketub a.

48 Unless she had not yet had a child with him, which was a for m of fault on his

part; Ta'a n a t b'ey n a hutr a l'yad a, see Yeva m o t 64a, Shulch a n Aruc h, Even Haeze r 154:6 - 7 and Aruc h HaShulc h a n , Even Haez er 154:52 - 53.

49 Yev a m o t 65a; but see view of Rav Ammi.

50 See Chere m Derabb e n u Gersho m , Enclycope di a Tal m u di t, 17:378.

51 See Respo n s a of Rosh 43:8, who indicate s that one of the conse q u e n c e s of this mo del is that wome n (and men) will not be able to leave a mar riage when they wish. See also Tesh u v o t HaRosh 42:1 who indicate s that the basic pur p o s e of the ban of Rabben u Gersh o m is to create balance of rights betwee n the husba n d and the wife.

wife or the reverse.52

Equally significant, the decrees of Rabbenu Gershom prohibited polygamy, thus placing considerable pressure on the man in a marriage that was ending to actually divorce his wife, since not only would she not be allowed to remarry, but neither would he.53 According to Cherem deRabbenu Gershom, Jewish law now permitted divorce only through mutual consent or fault on either part.

Since the promulgation of the ban in the name of Rabbenu Gershom against divorcing a woman without her consent or without a

52 This insight is gener ally ascribe d to Rabben u Tam in his view of me u s alay ; see Tosafo t, Ketubot 63b s.v. aval . In fact, it is worth noting that this view fits logically with the view of Rabben u Gersh o m, who not only had to prohibit polyga my and coerce d divorce, but divorce for easy fault, as Ramba m' s conce p t of repug n a n c y as a for m of fault is the functio n al equivalen t of no fault, identical in result to the gaoni m 's ann ulm e n t proce d u r e .

But see Tesh u v o t Mahar a m MeRut he n b e r g 4:250 who indicates that Rabbe n u Gersho m also subscribe d to the general view of the Geonim who held, unlike Rabbein u Tam, that a woma n could compel divorce upo n an asser tio n of repug n a n cy (me u s alay ). Rabbi Professo r Elimelech Westreich makes the same assu m p ti o n in his recen t work Te m u ro t Bem a'a m a d Haisha Bemishp a t Haivri (Jerusale m 5762, pages 71 - 73) in which he point s out that the views of the Geonim in gener al and those ascribe d to Rabbein u Gersh o m are often

interc h a n g e a ble . Westreich actually pose s the questio n of how these two positio n s (prohibiting coerce d divorce and effectively per mi tti ng unilater al no - fault divorce thro ug h an asser tio n of repug n a n cy (me u s alay ) could both be held at one time and place, especially given the afore m e n t io n e d Respo n s u m of the Rosh (42:1) who indicate d that accor ding to Rabbein u Gersh o m ' s mo del, a man could compel divorce in the same circu m s t a n c e s in which it could be com p elle d by a woma n (so that not only a woma n could com p el a divorce thro ug h an assertio n of me u s alay , but a man could as well). Westreich offers two answer s:

(1)only one type of rep ug n a n cy (me u s alay ) was conside r e d grou n d s for divorce accor ding to the Geonim but not anoth e r type (which was even softe r fault) (beina lei u m e t z ' a r n a lei) so there still would be cases where divorce could not effectively be coerce d even accor ding to the Geonim, thu s genera tin g the need for the separ a te taka na h against coercion with respec t to these cases; or

(2)the claim of repug n a n cy (me u s alay ) did not really lead to no - fault divorce as it neede d to be subs t a n tia te d thro ug h very stro ng circu m s t a n t i al evidence; in cases where a husba n d wante d a divorce but did not have very stron g

circu m s t a n ti al evidence sup p o r ti n g his claim of repug n a n c y (me u s alay ), there would still be a need for the decree against coerce d divorce.

We find both of these solutio n s to be obviou sly difficult, in that they advance an explana tio n of the view of the Geonim that is at tensio n with the com m o n explana tio n . We suggest a that the sim pler explana tio n is that the nasce n t

showing of hard fault54, the basic question of the value of the Ketubah has been questioned. Since the talmudic rabbis instituted the Ketubah payments so as to deter the husband from rashly divorcing a wife, the basic value and purpose of the ketubah in cases of divorce is limited to cases where the husband can divorce his wife without her consent, and yet has to pay the Ketubah. However, in cases where the husband cannot divorce his wife without her consent, there is no need or purpose to a ketubah. For example, Rambam55 and Shulchan Aruch both agree that when a man rapes a woman and thus has to marry her if she wishes to marry him, and may not divorce her, there is no ketubah payment. Shulchan Aruch states in such a case:

A many who rapes a woman who is a virgin is obligated to marry her, so long as she and/or her father wish to marry him, even if she is crippled or blind, and he is not permitted to divorce her forever, except with her consent, and thus he does not have to write her a ketubah. If he sins, and divorces her, a rabbinical court forces him to remarry her.56

The logic seems clear. Since he cannot divorce her under any circumstances without her consent, the presence or absence of a ketubah seems to make no difference to her economic status or marital security. When they want to both get divorced, they

views of Rabbe n u Gersho m are inco m p a tible with the esta blish e d views of the geoni m and that beca me clear over time.

(Perha p s there is roo m for anot h e r appr o ac h also: that, contr a ry to the position of the Rosh, the Geonim were pre pa r e d to allow a woma n to de ma n d divorce base d on virtually any groun d s, but not a man, who neede d a reaso n . The basis for this argu m e n t would be that: (a) Gittin 89a - b clearly circu m s c rib e s those insta n ce s in which a man is entitle d to a divorce, but does not explicitly limit the circu m s t a n c e s where a woma n may seek a divorce; (b) wome n were seen as more vulnera ble and thu s in need of more protec tio n than men (For an exam ple of this, see Iggrot Moshe EH 1:80 and Acheize r 1:27 both of who m are incline d to argue that ked us h ai ta'ut may be used more quickly by wome n than by men, as they are othe rwise witho u t any option in some cases.

53 Absent the prohibitio n on polyga my, the decree restricting the right to divorce would not work as well, as the husb a n d who could not divorce would simply rema r ry and aban d o n his first wife. This preven te d that cond uc t .

54 In which case, the value of the ketuba h need not be paid as a penalty for misco n d u c t impo se d on the woma n . What exactly is hard fault remain s a matte r of disp u t e, but it generally includ e s adulte ry, spou s e beating, insa nity, and impo te n c e; See Shulc h a n Aruc h , Even Hae zer 154.

55 Ra m b a m , Ishut 10:10.

56 Shulchan Aruch, Even HaEzer 177:3.

will agree on financial terms independent of the ketubah, and until then, the ketubah sets no payment schedule. Should she insist that she only will consent to be divorced if he gives her $1,000,000 in buffalo nickels, they either reach an agreement or stay married. The Ketubah serves no economic purpose in divorce.57

This case stands in clear contrast to the standard marriage in Talmudic times. In such a marriage, prior to marriage the husband and wife negotiated over the amount the husband would have to pay the wife if he divorced her against her will or he died. She could not prevent the husband from divorcing her, except by setting the payment level high enough that the husband was economically deterred from divorce by dent of its cost.

All this changed in light of the two decrees of Rabbenu Gershom. Rabbenu Gershom decreed that a man may not divorce his wife without her consent, except in cases of serious fault on her part, and a man may not marry a second wife under any circumstances. The net effect of these two decrees was to impose a form of parity of rights in a marriage. Neither the husband nor the wife could ever compel divorce, except in cases of fault, and in cases of fault both could.58

What then is the purpose of the Ketubah in cases of divorce after the ban on polygamy and unilateral no-fault divorce? Rabbi Moshe Isserless (Ramo) provides a very important answer. He states in the beginning of his discussion of the laws of ketubah:

See Shulchan Aruch Even Haezer 177:359where it states that in a situation where one only may divorce with the consent of the woman, one does not need a ketubah.

Thus, nowadays, in our countries, where we do not divorce against the will of the wife because of the ban of Rabbenu Gershom, as explained in Even Haezer 119, it is possible to be lenient and not write a ketubah at all; but this is not the custom and one

57 Consid e r a very sim ply questio n in such cases: How muc h mu s t husba n d pay wife to induce her conse n t? The answe r to that questio n is very depe n d e n t on the situa tio n of the parties — the ketub a h neithe r helps not hind e r s that negotiatio n s .

58 This is a bit of a simplicatio n in cases of fault, as in cases of fault a woma n would have to go to a bet din to seek the right to compel the husba n d to divorce her, wherea s the husba n d could, upo n a finding of fault by a bet din divorce her against her will directly. This differe nc e is one of mech a nis m, however, and not of rule.

59 The case of rape discu s se d in text, supr a note .

should not change it.60

Almost all of the classical commentators disagree with this Ramo and rule that one still needs a ketubah even after the ban of Rabbenu Gershom, even as such is not required in cases of rape. Chelkat Mechokek, Bet Shmuel and Gra all state that one should not rely on this view as one could distinguish between a rabbinic ban and a torah prohibition to divorce.61 Mishnah Lemelech posits that since there was a rabbinical decree mandating a ketubah, latter rabbinic authorities are incapable of repealing that obligation, and thus the Ramo ought not be relied on, even as the ketubah serves no clear purpose any more, as we are powerless to change the talmudic decree mandating a ketubah even as it no longer serves its purpose in cases of divorce.62

Avni Mishpat63 argues that Ramo's central analogy is incorrect, in that the Ketubah serves a purpose in the case of widow-hood; The Talmudic Sages did not decree a ketubah even in the case of widow-hood in the case of a rape victim who marries the rapist, as the mandatory payment of 50 shekalim directed by the torah as his punishment was equal (not by coincidence, either, it is claimed64, to the value of the ketubah). So too, the Ketubah establishes rights in the marriage itself that can be enforced,65 and death benefits, and effects rights in cases of chalitza as well.

Indeed, the custom and practice is not to follow the possibility suggested by the Ramo,66 without other lenient factors present as well.67 Thus, every Jewish wedding still starts with a ketubah, as Ramo himself notes to be the custom.

60 Even Hae z e r 66:3.

61 Chelk a t Mecho k e k 66:18.

62 Ish u t 10:10.

63 EH 66:10.

64 See Toldot Ad a m EH 66:3. See also Derec h Ha m e l c h on Ra m b a m Ish u t 10:10 . Tosa f o t Ch ai m 2:10 note s anot he r differe nc e, which is that a ma n who violates Chere m Derabb e n u Gersho m is not force d to rema r ry his ex - wife, wherea s when the rapist divorce s his victim agains t her will, he is force d to rema r ry her.

65 In Jewish law, a bet din can comp el sup p o r t of one spou s e by anot h e r even absen t divorce.

66 See for exam ple, Tes h u v o t Veh a n h a g o t 760. But see Ar u c h Has h ul c h a n EH 177:1 in the pare n t h e s e s and the last line Shelot Utesh u v o t Mut z a l MeAs h 21, Sefe r Kiny a n Tor a h (page 14).

However, no one argues with the basic economic assertion of the Ramo: The purpose of the Ketubah written to impose a cost on the husband for divorce — so that he should not divorce her rashly — has become moot; this basic purpose has been overtaken by the ban of Rabbenu Gershom which simply prohibited that which the Talmudic Sages sought to discourage. The ketubah neither establishes nor effects nor modifies any economic rights in cases of divorce without fault in places68 where CHEREM DERABBENU GERSHOM is accepted. In situations where CHEREM DERABBENU GERSHOM is not applicable due to misconduct, fault is always found, and no ketubah payment is thus mandated by Jewish law.

67 One of the com m o n questio n s encou n t e r e d is whet he r a couple may contin u e to live togeth e r when the ketub a h is misplace d and canno t tem p o r a rily be foun d . Someti me s, even at the end of the wed ding itself, the newly mar rie d couple canno t find the ketub a h . A nu m b e r of differe n t factor s, combin e d togeth e r, could provide groun d s for the couple to be alone toget h e r even in these circu m s t a n c e s until a replace m e n t ketu ba h can be writte n . Besides the view of the Ramo that nowa d ays a ketub a h is not neede d, these othe r factor s includ e:

(1)Many halachic autho ritie s rule that the ketu ba h is in force after the kin y a n (legal transfe r) effectu a te d before the wedding cere m o n y, even if no writte n docu m e n t is actually prese n t, as the ketub a h is merely a proof of a ketub a h, but the actual witne sse s are also sufficient . (Ot z a r Hap os k i m 66:1(7))

(2)Once it is know that there was a ketu ba h, and witne ss e s will attest to the fact that there was a ketu ba h and they signe d it, that is as if the wife has the ketub a h . (See Even Hae z e r 66:1 and Ot z a r Hap os k i m 66 - 3(22(2)).) (In the United States our practice is to read the Ketuba h out - loud, thu s there are many witne ss e s to its existe nce .)

(3)In Israel, the Rabbinical cour t s require that a photoc o p y of the ketub a h be kept on file in the rabbinical courts. In America, it is not unu s u al that there will be an actual photog r a p h of the ketub a h . (See Tesh u v o t Veh a n h a g o t 1:760)

(While a pho toc o py or pho tog r a p h likely does not allow for the enforce m e n t of the ketub a h, it does provide evidence of the facto rs previously describe d .)

(4)The husb a n d can remit to his wife for safekee pi ng the mone t a r y value of the ketub a h in leu of the right to collect. (Sh ulc h a n Ar u c h EH 66:2)

(5)Permit tin g the couple just to be alone togeth e r (such as for yich u d ) is

per mit te d accor din g to many autho ri tie s in all circu m s t a n c e s; Ra m o EH 66:1.

(6)Some risho ni m are of the view that a ketub a h is impo s e d as a conditio n of marriage by the talmu d ic rabbis (tenai bet din ), and thu s even abse n t a ketub a h, it is prese n t (Tur, EH 66 and Chu k Umish p a t 229 (at page 67)).

These matte r s require a case by case analysis by one exper t in Jewish law. For a worthw hile review of these issue s, see Ohel Yosef Even Hae zer 22 and Otzar Haposki m 66:2 - 3.

68 Such as Israel, Am erica, Canada, Europe (both east and we s t). Places wh er e it wa s not acc ep t e d includ e Egypt, Iran, Iraq, Morroco .

The only practical case where the ketubah is relevant is where the husband's fault generates the grounds for divorce, and the wife seeks a divorce grounded in her husband's fault, and payment of the ketubah.69 Although it might have some value in cases of widowhood as well as a matter of theory, normally it does not.70

Consider the observation of Rabbi Moshe Feinstein on this matter. He states:

The value of the ketubah is not know to rabbis and decisors of Jewish law, or rabbinical court judges; indeed we have not examined this matter intensely as for all matter of divorce it has no practical ramifications, since it is impossible for the man to divorce against the will of the woman, [the economics of] divorce are dependent on who desires to be divorce, and who thus provides a large sum of money as they wish to give or receive a divorce.71

Elsewhere Rabbi Feinstein writes:

I will write briefly the value of the ketubah in American nowadays, for use in those circumstances where it is needed. One should know that in divorce there is no place for evaluating the ketubah, since the ban of Rabbenu Gershom prohibited a man from divorcing his wife without her consent. Thus, divorce is dependent on who wants to give or receive the get and who will give or receive money as an inducement. But it is relevant to an widow, or a yavamah who wishes to have chalitza done, and who wishes to have her ketubah paid from the assets of the brother who is doing chalitza [her deceased husband].72 Only

69 Since the central pur p o s e of the Ketuba h was not to allow the husba n d to easily divorce his wife, Ramo migh t not have conside r e d these matt e r s truly significant insofar as the main pur p o s e of the ketu ba h was to protec t the woma n from divorce in cases which she desire d to stay within the marriage.

70 The reaso n this is so is that widows are entitle d accor din g to Jewish law to either per pe t u al sup p o r t from the estate or their ketub a h payme n t as the widow wishes; see Sh ulc h a n Ar u c h EH 93:3 and Pitch ai Chosh e n , Volume 8, Chap te r 11:1 - 3. Since the for me r is muc h more valuable tha n the latter, no reaso n a ble perso n would excersiz e her ketub a h rights in cases of widowho o d , and thus the prop e r evaluatio n of the ketu ba h is practically irreleva n t .

71 Iggero t Moshe Even Hae z e r 4:91 (This tesh u va was writte n in 5740 / 1 9 8 0).

72 The for m ula tio n use d in this tesh u va is differe n t fro m the Igge ro t Moshe EH 4:91 where, with regar d s to the rights of the widow, Rabbi Feinstein posits that:

infrequently, in farfetched case, is it relevant to divorce, such as when she agrees to be divorced, only if she is paid the amount owed by her ketubah.73

A simple example from commercial law helps explain the point of Rabbi Feinstein in divorce law. Suppose someone owns a painting that another likes. The fair market value of this painting is $100. For how much must this owner of the painting sell the painting to the one who wishes to buy it? The answer is that Jewish law does not provide a price. The seller need sell it only at a price at which he or she is comfortable selling it, and the buyer need buy it only at a price at which the buyer is comfortable buying it (so long as they are both aware of the fact that the fair market value is $100). The same is true for a divorce, Rabbi Feinstein posits, after the Ban of Rabbenu Gershom absent a finding of fault — neither party needs to consent to divorce unless he and she agrees to a financial arrangement or agrees to go to a din torah about this matter, and the bet din resolves this matter in accordance with the rules of compromise or equity.74 If they cannot work out a deal, or agree on a compromise or a process of compromise, divorce cannot be compelled.

III.The Enforceability of the Ketubah in American Law

Even widows, even when they are not the mot h e r s of the surviving childre n, in mos t cases there is a will, and there is also secular law [i.e, spo u s al offset] which many peo ple wish to actually use [to resolve this disp u te].

73 Iggero t Moshe Even Hae z e r 4:92 (This tesh u va was writte n in 1982).

74 There are provisio n s in Jewish law to resolve a matte r purely base d on equita ble principle s and com p r o mi s e, and such is what a bet din does in these cases, unless secular law provide s a bases for directing the answer and is applicable in this case. (A nu m b e r of halachic auth o rities see m ame na ble to the practice of looking to secular law on these matte r s; See R. Yehuda Leib

Graub u r t, Hav ali m ba - Nei mi m , Even ha - Ezer 55 which rules, in the altern a tive, that secular law provide s a woma n with financial rights agains t her husba n d (or his esta te);. R. Josep h Trani, Mabit 1:309, is anot h e r such resp o n s a . For a similar type of claim, see R. Yitzhak Isaac Liebes, Bet Avi 4:169. Similar reaso ni ng is adva nce d as plausible in R. Moshe Feinstein's ruling (Igge ro t Moshe, Even ha - Ezer 1:137) that the wife's waiver of past - due sup p o r t pay me n t s man d a t e d by secular law, in retur n for the husb a n d ' s issuing a get , is a form of per mi s sible coercion which does not invalidate the get (create a get me' use h situa tio n). This waiver of a financial claim is valid coercion only in a case where the woma n' s claim to the mo ney is halachically valid, as the wife is entitle d to these

pay me n t s, or an amo u n t roug hly equal to the m, thro ug h dina de m al k h u t a . Indee d, Rabbi Feinstein implies that this is the more likely result in his analysis foun d in Iggerot Moshe, Even Haez er 1:137 and Even Hae zer 4:106; see also Pitchai Tesh u v a , Even Haeze r 134:9 - 10.)

The enforceability in American law of the ketubah payment is a matter that has rarely been litigated, although there is not a single case where a court has enforced the ketubah obligation to mandate a payment. Consider for example in 1974 a widow tried to collect the amount of her husband’s ketubah and claimed that the ketubah superseded her prior waver of any future claims pursuant to a pre-nuptial agreement between herself and her husband. The ketubah had been signed after the pre-nuptial agreement, and thus, if it were a valid contract, would have superseded it. In denying her motion, the New York Supreme Court concluded that “even for the observant and Orthodox, the ketubah has become more a matter of form and a ceremonial document than a legal obligation.”75

Although the New York Court of Appeals, in a subsequent case, enforced a provision of the ketubah pursuant to which the parties agreed to arbitrate future marital disputes before a bet din, the court did not revisit the issue of the enforceability of the financial obligations included in the ketubah.76 While it is true that in dicta, an Arizona court suggested that financial obligations described in a ketubah could perhaps be enforceable if described with sufficient specificity,77 the practice has never been to seek to conform the text of the Ketubah to the contract requirements of American law.78 The description of the financial obligations — in zuzim and zekukim, which require determinations of Jewish law to ascertain the proper value — are not be considered sufficiently specific to be enforceable.79 So too the absence of an English text (where either the husband or wife are not fluent in Aramaic and Hebrew) and the absence of signatures of the husband and wife, would seem to make the ketubah void as a contract in American law.80

75 In Re Estat e of White, 356 N.Y.S.2d 208, at 210 (NY Sup. Ct, 1974).

76 A vit z u r v. A vit z u r , 459 N.Y.S.2d 572 (1983).

77 Victor v. Victor, 866 P.2d at 902 (1993).

78 See e.g., Hur wi t z v. Hur wi t z , 216 AD 362 (NY Appellate Division, 1928).

79 Whethe r or not the language of a ketu ba h for m s a basis for com p elling a Get accor ding to secular law doctrine is a ques tio n beyon d the scope of this article. See, e.g., In Re Marri a g e of Gold m a n , 554 N.E.2d 1016 (1990), in which an Illinois cour t came to the rema r k a ble conclusio n that the words “in accord a n c e with the law of Moses and Israel” appe a ri ng in the ketu ba h create d a

contrac t u al obligatio n to give a Get. But see Afl alo v. Afl alo , 295 N.J.Super. 527 (1996) (rejecting a similar argu m e n t) and Morris v . Morris 42 D.L.R3d 550 1973 (Manitoba, CA, Ct of Appeals). For more on this, see Rabbi Yitzcha k Breitowit z, Bet w e e n Civil an d Religio u s La w: The Plight of the Ag u n a h in A m e r i c a n Societ y (Greenwoo d Press, 1993), pp. 50 - 55.

80 It should be note d that some rabbis have devise d a legitima t e solutio n to

When might a ketubah be enforceable in the United States? When it is executed in a country (such as Israel) where it is recognized as legally enforceable. This is because American conflict of law rules might determine that the rules governing the validity of the ketubah are found in the location of the wedding, where the ketubah was a legally enforceable document.81 To the best of these writers knowledge, no American court has ever enforced the financial component of a ketubah written in America either in cases of divorce or cases of death.

Conclusion

The Ketubah serves many valuable purposes, such as requiring the husband to affirm and memorialize his Jewish law obligations to support and honor his wife. Even though these obligations would be applicable even in the absence of the ketubah, the existence of a formal document memorializing these obligations serves as an important pastoral reminder of their vital role in a successful Jewish marriage. This article has focused, however, on the purpose and value of the ketubah in cases of divorce, which is the case where the Talmud most clearly sees the need for a ketubah. Not surprisingly, it is in cases of divorce where matters are most contested.82 This article summarizes the value, worth and enforceability of the ketubah in cases of divorce.

tran sla te the ketu ba h docu m e n t into English so that the parties can be held accou n t a b le for un de r s t a n d i n g its mea ning, and inserting certain very concre te obligation s and und e r t a king s that could be held to be enforcea ble with resp ec t to the partie s. This appr o ac h is similar to the practice discus s e d infra of couples ente ring into separa t e enforcea ble pre - nup tial docu m e n t a tio n setting forth their specific expecta tio n s and com mit m e n t s in the event of a divorce or marital sepa r a tio n .

81 This principle was first note d in Mont e fi or e v. Gue d a ll a 2 Ch 26 Court of Appeals, England (1903), where a British court enforce d the ketu ba h of a Sefardi (Morroca n) Jew who had move d to Englan d, since the law of Morroco would have enforce d this ketub a h . These same conflict of law principle s could well enforce an Israeli Ketuba h in America. It has been followed in many American cases where the partie s were mar rie d in anot he r jurisdic tio n; see Miller v. Miller

128NYS 787 (Sup. Ct., 1911) and Shil m a n v. Shil m a n 174 NYS 385 (Sup. Ct., 1918).

82 Hap pily marrie d cou ple s rarely seek adju dica tio n in a rabbinical cour t of their financial obligatio n s to each othe r, altho u g h a rabbinical court is, in fact, jurisdic tio n ally autho ri z e d to resolve such disp u t e s; see Sh ulc h a n Ar u c h , Even Hae z e r 70:1 - 4. (In contra s t, American law does not auth o ri z e a court to resolve disp u te s betwee n a husba n d a wife except when divorce is expecte d; see McGuire v. McGuire , 59 N.W.2d 336 (Neb. 1953) and Leslie Harris & Lee Teitelba u m , Family Law (2nd ed., 2000) at pages 45 - 60.)

There are multiple views regarding how to assess the value of the 200 zuz and 200 zekukim described in the standard form ketubah as payable by the husband (or his estate) upon divorce or death. The breadth of the dispute — from less than $200 to more than $30,000 — is quite astonishing. What is the normative practice is also in dispute, and is hard to determine.

Additionally, as Rabbi Feinstein points out, since women today cannot be divorced against their will due to the famous tenth century enactment of Rabbenu Gershom prohibiting such a practice, a divorce today requires the husband to placate his wife with an amount that she would deem sufficient. Therefore, a woman can effectively "negotiate" for an amount greater than the value of the ketubah if her husband wishes to divorce her. Thus, the calculation of the amount of the ketubah only becomes relevant in very limited cases, such as when both parties expressly stipulate that they want the payment amount from the husband to the wife upon divorce to be determined solely based upon a rabbinical court's evaluation of the ketubah.

Hence, most couples never expect that the ketubah will actually be used for collection purposes and in fact the majority of Jewish women who have become divorced (or widowed) do not seek to collect their ketubah but rather use other channels to settle their claims. It is, therefore, virtually impossible to ascertain an established custom or practice with respect to the valuation of the ketubah in America.83 Given these questions, it is not surprising, that there is no clear halachic answers relating to the value of the ketubah.

These three observations — that the ketubah's value is low (and in dispute), its significance as a matter of Jewish divorce law limited, and its enforceability in American law nearly impossible — also provide a posture to understand some of the cases of recalcitrant husbands (igun) in the Jewish community. Essentially, modern American law permits unilateral no fault divorce. One spouse may seek divorce without the consent of the other, force a financial resolution of the marriage and compel a divorce against the wishes of their spouse. Jewish law did not permit unilateral no-fault divorce after the ban of Rabbenu Gershom was accepted about a millennium ago, as it viewed the 'right' of the husband to discard his wife without her consent

83 Rabbi Zalma n Neche mia Goldberg, taking note of this proble m, has

reco m m e n d e d that a dollar amou n t be inserte d in the ketu ba h — just as Israeli ketub o t often includ e an explicit amo u n t in Israeli shk ali m or even dollars — so that in the event the wife does registe r a claim purs u a n t to the ketu ba h, there will be no confu sio n concer nin g the prop e r amo u n t to be paid. However, given the infreq u e n c y of cases in which parties inten d to invoke the ketu ba h for financial pur p o s e s, it is prese n tly unlikely that there will be a move m e n t to accept such a prop o s al here in America.

to be religiously improper, and thus banned it, just as the reverse is prohibited as well. What then happens as a matter of Jewish law in cases of Jewish divorce where there is no discernable fault? Either the parties sign a pre-nuptial agreement prior to marriage governing such cases,84 or they settle matters themselves after they realize that divorce is proper, or they agree to go to a bet din for compromise, or they do not get divorced. Solving the problems of agunot in a manner that repeals the ban against forced divorce is contrary to Jewish law.85 Of course, there are many occasions where the community can and should impose social sanctions and other non- coercive pressure on a person who will not give or receive a get when the marriage is functionally over, so that he will agree to give a get.86

84 Couples nowa d ays often enter into a separ a te form pre - nu ptial agree m e n t pro m ulga te d by the Ortho d ox Caucus and the Rabbinical Council of America in conju nc tio n with the Beth Din of America. The pre - nu ptial agree me n t is an English language docu m e n t, drafte d in accor d a n c e with both Jewish and secular law specificatio n s, that provide s for a specific dollar amo u n t to be payable by a husba n d to a wife for sup p o r t upo n the event of a marital sepa r a tio n until the couple is no longer marrie d accor ding to Jewish law. Unlike what has beco m e the practice with respect to the ketub a h, the parties who enter into this

docu m e n t clearly comp r e h e n d that the financial ter ms of this docu m e n t are mea n t to be enforce a ble.

The ques tio n of whet he r couple s may explicitly refere nce secular law as the basis for disp u t e resolu tio n in their pre - nup tial agree m e n t is the subjec t of an excha nge betwee n Rabbi Zalma n Neche mia Goldbe rg (appr ove s) and Rabbi Tzvi Gartne r (questio n s) in Yes h u r u n 11:698 - 703 (5762). The Beth Din of America is of the view that such pre - nup tial agree m e n t s are prop e r, and a copy of such an agree m e n t can be foun d at www.orth o d o x c a u c u s . o rg / p r e n u p t i a l. ht m l with

explana tio n . For a furth e r elabora tio n of this, see Michael Broyde, Marria g e, Divorce and the Aba n d o n e d Wife in Jewish Law: A Concept u al Approac h to the Agu n a h Proble m s in A m e ric a .

85 For more on this, see Michael Broyde, Marriage, Divorce and the Aba n d o n e d Wife in Jewish Law: A Conce pt u al Appro ac h to the Agu n a h Proble ms in A m e rica . (Ktav, 2001).

86 Rabbe n u Tam as foun d in the Sefer HaYas h a r (Chelek HaTesh u v o t 24) first note d that when a man refuse s to give his wife a get, even when he is halachicly entitle d to do so, it is within the power of a rabbinical court to sanctio n him in cases where his cond u c t is impro p e r ethically. Such sanctio n is that com m u n i ty me m b e r s ough t to avoid him. Rabbe n u Tam state s:

Decree by force of oath on every Jewish man and woma n und e r your jurisdictio n that they not be allowed to speak to him, to host him in their home s, to feed him or give him to drink, to acco m p a n y him or to visit him when he is ill. In the event that he still refuse s

The ideal resolution to all disputes, but particularly divorce, is for the parties to mediate their differences amicably and come to a mutually agreeable settlement or compromise with respect to all issues.87

to divorce his wife, you may add furth e r restriction s upon him.

This appr o ac h is endo r s e d by ma ny halachic auth o rities (see Yabi'a Omer , VII:23 (Even HaEzer) (consigne d by Rabbis Yosef, Waldenbe r g, and Kolitz) and remain s used to this very day thro u g h such mech a nis m as the Rabbinical Council of America resolu tio n directing that such individu als be exclu de d fro m the synagog ue .

87 With resp ec t to this point, see Pitchei Choshe n 8:7(12).