Husband and Wife
Husband and Wife
HUSBAND AND WIFE
The act of marriage creates certain rights and duties between husband and wife. In performing them, both parties have to conduct themselves according to the following rules, comprising the fundamental principles for the relationship between husband and wife in Jewish law: "Thus the sages laid down that a man shall honor his wife more than his own self and shall love her as he loves himself, and shall constantly seek to benefit her according to his means; that he shall not unduly impose his authority on her and shall speak gently with her; that he shall be neither sad nor irritable. Similarly they laid down that a wife shall honor her husband exceedingly and shall accept his authority and abide by his wishes in all her activities…" (Maim. Yad, Ishut 15:19–20).
General Rights and Duties
A husband has ten obligations toward his wife (or her descendants) and four rights in respect of her. The obligations are (a) to provide her with sustenance or maintenance; (b) to supply her clothing and lodging; (c) to cohabit with her; (d) to provide the *ketubbah (i.e., the sum fixed for the wife by law); (e) to procure medical attention and care during her illness; (f) to ransom her if she be taken captive; (g) to provide suitable burial upon her death; (h) to provide for her support after his death and ensure her right to live in his house as long as she remains a widow; (i) to provide for the support of the daughters of the marriage from his estate after his death, until they become betrothed (see *Marriage) or reach the age of maturity; and (j) to provide that the sons of the marriage shall inherit their mother's ketubbah, in addition to their rightful portion of the estate of their father shared with his sons by other wives. The husband's rights are those entitling him: (a) to the benefit of his wife's handiwork; (b) to her chance gains or finds; (c) to the usufruct of her property; and (d) to inherit her estate (Yad, Ishut 12:1–4; Sh. Ar., eh 69:1–3).
These rights and duties both derive from the law and not from mere agreement between the parties: "a man, by marrying a woman, becomes obligated to her in ten matters and acquires rights against her in four matters, even if they have not been taken down in writing" (Yad, Ishut 12:5; Sh. Ar., eh 69:1), i.e., the said rights and duties devolve as a matter of law from the act of marriage, whether or not a ketubbah deed is written and "writing thereof does not add and the absence thereof does not detract" (Resp. Ribash no. 480).
particulars of the rights and duties
The Wife's Rights
clothing and lodging
This includes the right to household utensils and furniture and to a home of a reasonable standard in accordance with local custom (Yad, Ishut 13:3, 6; Sh. Ar., eh 73:1, 7). The scope of this right is governed by the rules pertaining to the law of maintenance, since, for the purpose of the legal rights of the wife, the concept of maintenance – in its wider meaning – embraces also the above-mentioned right (Tur, eh 73). By the same token the wife loses her right to claim raiment from her husband whenever she forfeits her right to maintenance (Rema, eh 69:4).
The place of residence (town or village) is determined by the husband, since it is presumed that they so agreed in advance and the wife cannot object to her husband changing their residence unless there was an agreement, express or implied, that they would not move to another place without her consent (Sh. Ar., eh 75:1; pdr 2:233, 3:161, 163, 5:20, 22, 57). However, the husband must have reasonable grounds for deciding on a change against the will of his wife, e.g., for reasons of health, or his livelihood, or the fact that the matrimonial peace at their existing home is disturbed by his or her relatives (Resp. Ribash nos. 81, 88; pdr 1:271, 274–5; 2:233, 237; 5:36, 54, 57). The wife is not obliged to agree to a change of residence if this should be detrimental to her position, e.g., because her relationship with her husband is such that she has reasonable grounds for her reluctance to move beyond the proximity of her relatives, or because the new home will be inferior to the old home, or if she can justify her refusal on the grounds that she does not wish to move from a town to a village or vice versa (Sh. Ar., eh 75:2; pdr 1, 2, loc. cit. 3:161, 163).
These rules do not apply in their entirety to Ereẓ Israel vis-à-vis other countries, nor to Jerusalem vis-à-vis other places in Ereẓ Israel. In such cases the rule is that a spouse who genuinely prefers as his place of residence Ereẓ Israel to any other country, or Jerusalem to any other place in Ereẓ Israel, need not bow to the wishes of the other spouse. In effect, therefore, the law favors the party genuinely seeking to settle in Ereẓ Israel or Jerusalem, or refusing to depart therefrom, even if, for example, this should entail the loss of better economic opportunities elsewhere, unless there is reason to fear that in Ereẓ Israel or in Jerusalem they might become in need of charity (Sh. Ar., eh 75:3, 4; Pitḥei Teshuvah, ibid., 6; pdr, 5:20, 36, 66). However, if settling in Ereẓ Israel involves any danger for the parties, neither spouse may compel the other to do so (Tos. to Ket. 110b, s.v. "hu Omer la'alot: Sh. Ar., eh 75:5; for a contrary opinion, cf. Tur, eh 75; see also pdr 5:20).
The husband likewise determines the place of the dwelling within the town or village, but each of the parties must comply with the other's request to move to another dwelling and cannot refuse to do so on the ground that he or she is not particular about the matters complained of by the other spouse, provided only that the request is genuine and justified in the circumstances, e.g., on the grounds that neighbors are habitually insulting, or that they are given to prostitution, or to desecration of the Sabbath, and the like (Yad, Ishut 13:15; Sh. Ar., eh 74:11–12). If the wife refuses, in defiance of these rules, to accede to her husband's just demands concerning their place of residence, she is liable to forfeit her right to maintenance since she is only entitled thereto as long as she lives with him; moreover she is likely to be considered a moredet (see below) and may eventually be obliged to accept a bill of *divorce (Sh. Ar., eh 75:4, pdr, 3:161, 163, 164; 5:20, 23–28; 6:5, 9). Similarly, upon the husband's unreasonable refusal to accede to his wife's just demand to continue living in Ereẓ Israel, he may be ordered to provide maintenance for her – even though they live apart – and eventually to grant her a divorce with payment of her ketubbah; and if necessary, she may also demand an injunction restraining him from going abroad (pdr 5:20, 24, 29, 36, 57–59, 66).
The husband's duty to cohabit with his wife stems from biblical law (Ex. 21:10) and he is obliged to do so according to his physical abilities and in so far as it is possible for him, having regard to the requirements of his occupation (Yad, Ishut 14:1, 2; Sh. Ar., eh 76:1–3). If he is unable to fulfill this duty the wife is entitled to demand a divorce (Yad, Ishut 14:7; Sh. Ar., eh 76:11) unless there are reasonable prospects, on the strength of medical evidence, that he may be cured of his disability (pdr 1:85–89; 3:84–89; see also *Divorce).
Mored ("rebellious" husband). A husband who refuses, without justifiable reason, to cohabit with his wife is called a mored (Ket. 63a; Yad, Ishut 14:15), but he is not so regarded if he refuses to fulfill his other obligations toward her (ibid. and Maggid Mishneh, Ishut 14:15; Baḥ, eh 77). Proof that her husband is a mored entitles the wife to demand that he be obliged to grant her a divorce, and if necessary, that he be compelled to do so (on the distinction, see *Divorce). As long as the husband persists in his refusal to cohabit with his wife, she is entitled to demand that the amount of her ketubbah be increased from week to week, as may be determined by the court and to receive the increased ketubbah upon the grant of the divorce (Ket., Yad, and Maggid Mishneh, ibid; Sh. Ar., eh 77:1). In such event the wife's remedy is not necessarily limited to seeking a divorce – lest the husband be enabled thus indirectly to compel his wife to a divorce – she may alternatively demand that her husband be obliged to pay her maintenance only without prejudicing thereby her right to receive the increased ketubbah when later seeking a divorce (Sh. Ar., eh 77:1; Piskei ha-Rosh Ket. ch. 5:32). The husband will not be regarded as a mored when he can adduce facts in support of his plea that his wife is repulsive to him, and declares that he is ready and willing to give her a divorce forthwith, with payment of her ketubbah; the wife's refusal to accept a divorce in such circumstances relieves the husband of all his obligations toward her, including that of maintenance (Resp. Rosh 42:1; pdr 5:292, 296, 297).
Moredet ("rebellious" wife). The wife is similarly regarded as a moredet only when she persistently refuses to cohabit with her husband (Ket. 63a., Yad and Maggid Mishneh, Ishut 14:8; Sh. Ar., eh 77:2), but not when she refuses to fulfill any of her other marital duties (Sh. Ar., eh 77:2 and Baḥeh 77). The moredet falls into two categories: firstly, that of a wife who refuses to cohabit with her husband because of anger or a quarrel or for other reasons offering no legal justification; secondly, that of a wife who refuses to cohabit with her husband because she cannot bring herself to have sexual relations with him and can satisfy the court that this is for genuine reasons, which impel her to seek a divorce – even with forfeiture of her ketubbah. In both cases the moredet immediately loses her right to maintenance (Sh. Ar., eh 77:2; pdr 6:33, 42) and, in consequence thereof, her husband loses the right to her handiwork (see below) since he is only entitled to this in consideration of her maintenance, i.e., only if she is actually maintained by him (Rema, eh 77:2; and see below). Ultimately, the moredet also stands to lose her ketubbah and the husband will be entitled to demand a divorce, but this depends on conditions that differ according to the category of moredet and in this regard the halakhah underwent various developments.
So far as the first category of moredet is concerned, it was laid down in the Mishnah that her ketubbah shall be diminished from week to week until nothing remains and that thereafter her husband shall be entitled to divorce her without ketubbah (Ket. 63a). Later, as a means of inducing the wife to desist from her "rebellion," it was provided that a procedure be adopted of having certain warnings issued by the court as well as public announcements made, and, on the wife's disregarding a final warning that her continued "rebellion" would render her liable to forfeiture of her ketubbah, the court could declare her a moredet, entailing the immediate forfeiture of her ketubbah and the acquisition by her husband of the right to divorce her forthwith. In the period of the later amoraim it was further prescribed that only after persisting in her refusal to cohabit with her husband for not less than 12 months would the moredet finally lose her ketubbah and the husband become entitled to divorce her (Ket. 63b; Yad, Ishut 14:9–11; Tur and Beit Yosef, eh 77; Sh. Ar., eh 77:2). This appears to be the halakhah at the present time (see pdr 6:33, 325).
In the case of the other category of moredet (i.e., on a plea of incompatibility, when accepted by the court), the procedure of warnings and announcements was regarded as being inappropriate and inapplicable since "the wife should not be urged to have sexual relations with a person whom she finds repulsive" (Yad, Ishut 14:8; pdr 6:5, 12, 18). Hence, in this case, the husband was at first considered entitled, according to her own wish, to give his wife an immediate divorce, without payment of her ketubbah, because she herself had desired this by her waiver of the ketubbah and, as a moredet, she is anyhow not entitled to her ketubbah (Ket. 63b: Sh. Ar., eh 77:2). In later times, however, the scholars regulated that even concerning this category of moredet the husband is not entitled to divorce her immediately, but only after the lapse of 12 months after a warning by the court that she might forfeit her ketubbah. This regulation aimed at enabling the wife to reconsider her attitude in the event that her rebelliousness had been due to sudden anger which she later regretted (Ket. 63b). Her failure to repent within those 12 months would then entitle the husband to divorce her without ketubbah but the wife's plea that her husband is "repulsive" to her does not give her the right to demand that her husband be adjudged to grant her a divorce. Maimonides' opinion (Ishut 14:8) that on the strength of the aforesaid plea, the husband might even be compelled to divorce his wife without delay – since "she is not like a captive to have to submit to intercourse with someone repulsive to her" – was not accepted by the majority of the authorities and a takkanah to a similar effect from the geonic period (knownas the dina de-metivta, i.e., "law of the academies") was regarded as an emergency measure intended only for those generations and not as established halakhah (Resp. Rosh no. 43:6, 8; Sefer Teshuvot ha-Rashba ha-Meyuḥasot le-ha-Rambanno. 138; Remaeh 77:2, 3).
Since the wife only forfeits her ketubbah in the event that she does not desist from her rebellion within the prescribed period of 12 months, all her rights and duties on the strength of the ketubbah – save with regard to her maintenance and her handiwork – remain valid during the same period, since "the ketubbah conditions are as the ketubbah itself." If in consequence of the wife's rebellion she is divorced by her husband, she will anyway be entitled to receive her nikhsei melog (property which never ceases to remain in her ownership but the usufruct whereof is enjoyed by the husband (see *Dowry) but special halakhot exist concerning her nikhsei ẓon u-varzel (see Beit Shemu'el and Ḥelkat Meḥokek at concl. of 77).
the "main" (ikkar) ketubbah
The medical expenses incurred in case of the wife's illness must be borne by her husband, since these form part of her maintenance: "medical care in time of illness is as necessary to a person as is sustenance" (Ket. 4:9 and Rashi Ket. 51a s.v. "ḥayyav lerape'ot"). Hence, questions such as the scope of this obligation of the husband and whether and to what extent he is obliged to defray debts incurred by the wife in seeking a cure for her illness are governed by the same laws as those pertaining to her maintenance.
ransom from captivity
The husband is obliged to provide the money and to perform any other act required to redeem his wife from captivity (Ket. 4:9 and 52a; Sh. Ar., eh 78:1). "Captivity" in this context is not confined to the case of actual captivity of the wife in time of war, but embraces all circumstances in which she is prevented, as a result of the restriction of her freedom, from living with her husband, e.g., where husband and wife are separated as a result of persecution or war and thereafter the husband succeeds in reaching Ereẓ Israel while his wife is stranded in a country from which she is not free to depart. If in such circumstances the payment of money will enable the wife to leave that country and join her husband, it is his duty to pay the required amount, even if it should exceed the amount of her ketubbah, because in general the husband's duty is to ransom his wife with all the means at his disposal: "his wife is as his own self " (Yad, Ishut 14:19; Rema eh 78:2; Ha-Gra, eh 78, n. 4). In consideration of this duty the husband is entitled to the usufruct of his wife's property. The husband cannot be relieved of this duty by his wife's waiver of her right to be ransomed – even if the parties should so agree prior to their marriage – lest she become assimilated among the gentiles (Sh. Ar., eh 69:5).
It is the husband's duty to bear the costs of his wife's burial and all related expenses such as those necessary for erecting a tombstone, etc. (Sh. Ar., eh 89:1). Since this duty is imposed on the husband as one of the ketubbah conditions and not by virtue of the laws of succession, he must bear these costs out of his personal property without regard to the question whether, and to what extent, his deceased wife had contributed a dowry or left an estate in his favor (Beit Shemu'el 89, n. 1). If such burial costs are defrayed by third parties, e.g. by the ḥevra kaddisha, in fulfilling the mitzvah of burying the dead, in the husband's absence or upon his own refusal to do so, the husband will be liable to refund the amount expended to the parties concerned (Sh. Ar., eh 89:2).
support of the widow from the estate of her deceased husband
support of the minor daughters of the marriage from the estate of their deceased father
See *Parent and Child (Legal Aspects).
inheritance by the sons of the marriage of their mother's ketubbah, over and above their portion in the estate of their father
This takkanah, known as the ketubbat benin dikhrin (i.e., ketubbah of male children), refers to a condition of the ketubbah whereby the husband agrees that his wife's ketubbah and dowry, which he – as by law he is her only heir (see *Succession; and see Right of Inheritance, below) – would inherit if she predeceased him, shall, upon his own death, pass to the sons of the marriage only and this over and above and separately from the share of these sons in the rest of their father's estate shared equally by them with the sons of any other marriage contracted by him (Ket. 4:10 and 52b; Sh. Ar., eh 111). This takkanah, designed to ensure that the wife's property would remain for her sons only, was aimed at influencing the bride's father to give her, upon her marriage, a share of his property equaling that which his sons would get; however, since it anyway became customary for fathers to give their daughters such a share of their property, the need for including a specific undertaking of this kind in the ketubbah-deed fell away, and therefore by geonic times it was already recognized that the takkanah had become obsolete (Rema, eh 111:16).
The Husband's Rights
("the wife's handiwork"). It is the wife's duty to do all such household work as is normally performed by women enjoying a standard of living and social standing similar to that of the spouse all in accordance with local custom. Also applicable is the rule that "the wife goes up with him, but does not go down with him," i.e., she is not obliged to do the kind of work that was not customarily done by the woman in her family circle prior to her marriage, although according to the husband's standard women used to do it, while at the same time she is entitled to benefit from the fact that her husband enjoys a higher standard of living than that to which she was accustomed prior to the marriage, so that she is not obliged to do work which is not normally done by women enjoying the husband's (higher) standard of living even if she used to do it prior to her marriage (Ket. 59a–61b; Sh. Ar., eh 80:1, 10). The expenses incurred by the husband in hiring domestic help due to the fact that the wife, although able to perform them, willfully refuses to perform the duties devolving on her, as described, must be refunded by the wife and may also be deducted by the husband from her maintenance (Sh. Ar. ibid; Ḥelkat Meḥokekn. 80, 27). According to these rules, the question must also be decided as to whether, and to what extent, the wife is obliged to suckle or look after the infant children of the marriage, since this duty is imposed on her not as the mother of the children but as the wife of their father (Sh. Ar., eh 80:6–8). Hence a divorced woman is exempt from this duty, with the result that her former husband – who as father always bears sole responsibility for the maintenance of their children (see Parent and *Child) – must compensate her for her efforts, if she nevertheless looks after them, in addition to bearing the expenses involved (Sh. Ar., eh 82:5; pdr, 1:118, 119; 2:3–8).
The wife is not liable for damage caused by her in the home – e.g., in respect of broken utensils – whether or not occasioned in the course of fulfillment of her duties (Yad, Ishut 21:9, Sh. Ar., eh 80:17 and Ḥelkat Meḥokek 80 n. 29). The purpose of this halakhah is to preserve matrimonial harmony, since otherwise "matrimonial harmony will cease, because the wife in taking excessive care will refrain from most of her duties and quarreling will result" (Yad, loc. cit.).
The question whether the earnings of the wife from her own exertions (yegi'a kappeha), in talmudic language ha'adafah ("surplus"), and, if she exerts herself more than usual, "surplus resulting from undue exertion," are in the nature of ma'aseh yadeha and so belong to her husband, is a disputed one – both in the Talmud (Ket. 65b and Rashi thereto s.v.ha'adafah; 66a) and in the codes (Yad, Ishut 21:2 and Sh. Ar., eh 80:1 as against the Tur, ibid., and other codes; pdr, 1:81, 90–94). In the light of this dispute the husband has no right to demand that his wife should go out to earn, nor that she should make over any such earnings to him; on the other hand, since some of the authorities are of the opinion that the husband does have this right – thus possibly entitling him to set off such earnings against her maintenance – he will not be ordered to pay her maintenance in so far as her earnings suffice for this purpose (see Kim Li; Baḥ eh 80; pdr, 1:94, 118; 2:220, 226).
The husband's right to his wife's handiwork is granted to him in return for his duty to maintain her and in consideration of this, and is only available to him upon his actually discharging this duty (Ket. 47b, 58b, 107b; Sh. Ar., eh 69:4). The rule is that the wife's right to maintenance is primary, taking precedence over his right to her handiwork and existing even when she is unable to work, e.g., on account of illness (Ket. 58b; Rashi ad loc. s.v.mezonei ikkar). On the other hand, the husband loses the right to his wife's handiwork if for any reason whatsoever she does not actually receive her maintenance from him, whether on account of his refusal to provide it or because according to law she has forfeited her right to such maintenance, e.g., because she is a moredet (Remaeh 77; 2; Ba'er Heitev, eh 80, n. 1). On the strength of the above rule, the wife, by her independent will, is able, by waiving the right of maintenance, to deprive her husband of his right to her handiwork ("I am not maintained, nor shall I do any handiwork…" Ket. 58b), a worthwhile step for her if she should earn more than the amount of her maintenance. The husband, on the other hand, cannot deprive his wife of her right to maintenance by waiving his right to her handiwork, nor may he demand that she go out to earn the cost of her maintenance ("Spend your handiwork for your maintenance," Ket. 58b; Sh. Ar., eh 69:4; Beit Shemu'el 69, n. 4).
finds of the wife
The husband is entitled to the finds or chance gains of his wife (Ket. 65b–66a; Sh. Ar., eh 84).
usufruct of the wife's property
right of inheritance
Jewish law decrees that the husband is the sole heir of his wife – to the absolute exclusion of everyone else, including her children – as regards all property of whatever kind in her estate, including the part in respect whereof he had no usufruct during her lifetime. However, the wife is not an heir to her husband's estate (bb 8:1 and 111b; Yad, Naḥalot 1:8; Ishut 22:1; Sh. Ar., eh 90:1); instead she has the right to claim maintenance and lodging from his estate for as long as she remains a widow. The husband inherits only the property actually owned by his wife at her death but not the property which is only contingently then due to her in certain circumstances, e.g., if she had been a contingent heir to her father but predeceased him (bb 113a; Sh. Ar., loc. cit.). The inheritance of the husband also embraces property sold by the wife subsequent to their marriage, since his right of inheritance comes into existence upon their marriage and therefore any sale of her property is only valid to the extent that it is not prejudicial to his right, i.e., only if he should predecease her or if they become divorced and she retains ownership of her property (Maim. Yad, Ishut 22:7; Sh. Ar., eh 90:9; see also *Dowry). The husband's right to inherit his wife's estate is co-extensive with the existence of a valid marriage between them at the time of her death, and remains effective even if the marriage between them was prohibited, e.g., between a priest and a divorcee (see Marriage, *Prohibited), and even if the husband had wished to divorce his wife but was prevented from doing so, whether for lack of time or on account of the decree of Rabbenu Gershom (see *Divorce; Main. Yad, Nahalot 1:8; Ishut 22:4; Sh. Ar., eh 90:1; Ba'er Heitev, ibid., n. 1).
Contracting out of the Law
All the above-mentioned rights and duties of the parties flow from the law. There is, however, no obstacle to an agreement between the parties to regulate their legal relationship with regard to monetary matters to another effect, provided that this is not in conflict with any general principles of the halakhah.
The rule is that "in a matter of mamon one's stipulation is valid," i.e., in matters of civil law the law does not restrict the freedom of contract and one may even stipulate contrary to biblical law (R. Judah, Kid. 19b; Sh. Ar., eh 38:5; 69:6). Hence the parties may come to an agreement stipulating therein terms and conditions whereby they forego certain pecuniary rights and obligations they are entitled to against each other according to law, provided that the agreement is express and in compliance with the legal provisions concerning the making of such an agreement or condition. In particular, and by way of an express agreement for the renunciation (silluk) of their rights, a husband and wife may effect a complete separation of their rights as to their respective properties so as to deprive the husband of the usufruct of his wife's property and of the right to inherit from her. It should be noted that such an agreement will lack validity prior to the creation of any legal tie between the parties with reference to the rights in question, because until then such rights constitute "something that is not yet in existence" (davar she-lo ba la-olam; see *Contract) and therefore cannot be the subject of a legal disposition; nor is such an agreement possible after full acquisition of the said rights, since a right once acquired cannot be conferred on another by renunciation but only by way of its transfer or assignment. Hence the above-mentioned renunciation agreement must be effected after the kiddushin but prior to the nissu'in ceremony (see *Marriage), since at this stage the pecuniary rights are considered already to be "something in existence" but they are not yet fully acquired by the parties (see pdr i, 289–313; Beit Ya'akov, eh 92:7). Since the custom at the present time is for the kiddushin and nissu'in ceremonies to be united and performed one after the other without interruption, it is necessary, if the parties should wish to effect the said renunciation, that the marriage ceremony be interrupted upon completion of the kiddushin to enable the parties to sign the renunciation deed, and then only to proceed with the nissu'in ceremony.
As said above, only with regard to monetary matters is such an agreement valid. Therefore, an agreement whereby the wife undertakes to waive her right to cohabitation is of no effect since the corresponding duty of the husband is imposed on him by biblical law and does not involve a matter of mamon; hence the wife may always repudiate such an agreement and demand that her husband fulfill his duty to cohabit with her (Yad, Ishut 12:2, 7; Sh. Ar., eh 69:6, Ḥelkat Meḥokek 69, n. 10). On the other hand, the wife's duty to cohabit with her husband is not imposed on her by biblical law as such, but is merely a consequence of the husband's right to cohabitation by virtue of the marriage, which right he may waive. Hence an agreement between the spouses whereby the wife is released from this duty but without any waiver of her rights is valid, and she will not be considered a moredet if, in reliance upon such agreement, she should refuse to cohabit with her husband; neither will her right to maintenance and other pecuniary rights be affected (Pitḥei Teshuvah, eh 134, n. 9).
Also invalid is a condition depriving the wife of her "main" ketubbah – even though her right to the ketubbah is a matter of mamon – since a marital life in which the wife remains without her "main" ketubbah is considered "cohabitation for the sake of prostitution" (Ket. 5:1) and "it is forbidden for a man to remain with his wife for even one hour if she has no ketubbah" (Yad, Ishut 10:10). Depriving the wife of her "main" ketubbah, or the diminution thereof below the statutory minimum, is prejudicial to the very existence of the marriage and cohabitation in such circumstances is considered as tantamount to prostitution; hence a condition of this kind relates to davar she-be-issur (a matter of a ritual law prohibition) and not to a davar she-be-mamon, and accordingly it is invalid (Yad, Ishut 12:8; Sh. Ar., eh 69:6).
The husband's right to inherit from his wife, which flows from the law upon the celebration of the marriage, likewise cannot be stipulated away during the subsistence of the marriage. Upon the celebration of the marriage the husband forthwith acquires the status of heir designate to his wife's estate and although this is calculated eventually to afford the husband rights of a monetary (mamon) nature it creates a legal status and as such cannot be the subject matter of a waiver of stipulation aimed at annulling it (Yad, Ishut 12:9; Sh. Ar., ibid.). Any such waiver or stipulation, in order to be valid, has therefore to be effected after kiddushin and prior to nissu'in (Yad, Ishut 23:5–7, and Maggid Mishneh thereto; Sh. Ar., eh 69:5, 7; 92:7, 8). For further particulars concerning freedom of stipulation between husband and wife, see *Contract.
In the State of Israel
The halakhah is generally followed so far as the particulars of the marital rights and duties are concerned. However, the husband's right to inherit from his wife is governed by the Succession Law, 5725 – 1965, in terms whereof – as also formerly in terms of the Succession Ordinance, 1923–34 – one spouse inherits from the other along with the latter's descendants (in the case of intestate succession), in the prescribed proportions (sec. 11). The inheritance rights of the spouses are governed solely by the provisions of the above law and the rabbinical courts must also adjudicate in accordance therewith, save when all the interested parties agree, in writing, to the jurisdiction of the rabbinical court and provided that the rights of a minor or a person lacking legal capacity who is party to the estate shall not be less than those afforded him under the above law (sec. 148, 155).
[Ben-Zion (Benno) Schereschewsky]
The Right of a "Rebellious" Husband (Mored) to the Proceeds of His Wife's Property and to Her Earnings
Does a husband who is a mored (i.e., fails to discharge his marital obligations) retain his right to his wife's earnings and the proceeds from her property? There is a halakhic dispute regarding this question.
According to one view, the husband is given the rights to his wife's handiwork and the proceeds of her property so long as he acts as a husband. If, however, he is a "rebellious husband" (mored), and fails to fulfill his duty to cohabit with his wife, he forfeits his right to her earnings and property income. Just as the rebellious wife (moredet) forfeits her monetary rights against her husband, while he retains his rights regarding her (apart from the right to her earnings), the rebellious husband forfeits his monetary rights from his wife, whereas she retains her rights regarding him (Beit Ya'akov on Even Ha-Ezer 90. 5; File 5742/112, 12 pdr 311, the Rabbinical Court of Appeals; File 5712/866, 2 pdr 262, 271ff., the Rabbinical Court of Appeals). According to another view, this opinion was valid until the ḥerem (ban) of Rabbenu Gershom was enacted (see *Divorce), forbidding the husband to divorce his wife against her will. However, since the ḥerem, the rebellious husband continues to be entitled to his wife's earnings and proceeds of her property. The reason for this is that the rule by which the mored forfeits his monetary rights to his wife's handiwork and income from property derives from another rule, whereby the rebellious husband loses his right to inherit his wife (Rema, at eh 90.5). The basis for this halakhah is that a rebellious husband is treated as one who is about to divorce his wife, a fact considered sufficient to sever the conjugal bond between the husband and the wife, which is the source of his right to inherit her.
According to this approach, after the enactment of the ḥerem of Rabbenu Gershom, the husband cannot divorce his wife against her will; hence, the fact that he is rebellious does not automatically categorize him as a husband about to divorce his wife, insofar as that decision is not solely at his discretion. In any event, the rebellious husband does not lose his right to inherit his wife, nor does he lose his right to her handiwork and property income (File 5712/2921, 1 pdr 239, 246–7, the Regional Rabbinical Court of Tel Aviv-Jaffa).
According to the other opinion, there is a reciprocity between the rights of the husband and the rights of the wife and, since the rebellious husband remains liable to fulfill all of his obligations to his wife, the wife too remains liable to execute all of her obligations to him, including her handiwork and proceeds from her property (5712/2921, ibid, 245).
This dispute is particularly important in those cases in which the wife sues for maintenance from her husband, where the claimant wife works to support herself or has income-generating property. According to the first opinion, the husband is required to pay her maintenance, and the profits from her earnings or property are irrelevant to this obligation. According to the second view, her earnings or property income should be deducted, in accordance with the general rule in maintenance claims (regarding deduction of her earnings from her maintenance, see infra; regarding deduction of income from her property from her maintenance, see * Dowry), and if her earnings or property income exceed the level of her maintenance, the husband is entitled to the balance.
It would seem that this matter ought to be decided according to the rule that money may not be taken away from its possessor. In other words, where there is a halakhic dispute among the decisors, the litigant wishing to claim money from another bears the burden of proof, and the litigant in possession of the money can argue that the halakhah follows the opinion of those decisors whose rulings are favorable to him. Accordingly, the wife cannot demand that her husband pay an amount equal to her earnings or the proceeds of her property, but rather only the excess, if such exists, between this sum and the sum to which she is entitled as maintenance. If, however, her earnings or property income should exceed the amount to which she is entitled in terms of maintenance, the wife is considered the possessor of such excess and the husband does not have any right to it (File 5736/2944, 11 pdr 193, 208, the District Rabbinical Court of Tel Aviv-Jaffa; File 5736/13627, 11 pdr 89, the District Rabbinical Court of Tel Aviv-Jaffa).
Deducting the Wife's Earnings from her Maintenance: Decisions of the Supreme Court
Regarding a woman who has income from her own work, and who sued for maintenance from her husband, the Supreme Court ruled, in accordance with Jewish law and the decisions of the Rabbinical courts, that her income should be deducted from the amount her husband owes her for her maintenance, and the husband must pay the balance between the wife's earnings and the amount of the maintenance payments, to the extent that the amount of maintenance is greater than the amount of the wife's earnings (ca 63/69 Yosef v. Yosef, 23(1) pd 804; fh 23/69 Yosef v. Yosef, 24(1) pd 792). In principle the husband cannot force his wife to work in order to support herself and, accordingly, the Supreme Court ruled that, insofar as the wife does not earn her own living, the husband is obligated to pay the full amount of her maintenance, even if the wife worked in the past and has stopped working (ca 687/83 Mazor et al. v. Mazor, 38(3) pd 29; per Justice Shoshana Netanyahu).
The rule that the wife is entitled to the full amount of maintenance even if she worked in the past has been harshly criticized. It is claimed that this rule encourages women to stop working, so as not to deduct their income from the amount of maintenance owed by the husband. The duty of paying maintenance thus becomes a tool wielded by the wife to exert economic pressure on the husband to give her a speedy get, so as to exempt himself from his maintenance obligation. This rule reflects and even perpetuates the stereotype of the dependent wife, inasmuch as the termination of her work is likely to jeopardize her ability to return to the work force following the divorce, which in turn injures her economically and denies her the opportunity of recovering emotionally after the crisis of the divorce by going out to work. While this rule does provide an important means of exerting pressure on recalcitrant husbands who refuse to give a get to their wives, it is argued that the resultant damage to the woman is grave, and that other solutions to the problem of refusal to grant a get should be found and implemented (see *Divorce).
Notwithstanding this, in a number of cases the Supreme Court ruled that, where it is apparent that the wife is able to work, but deliberately refrains from doing so as part of her "strategy" in the divorce proceedings, her maintenance payment is to be reduced by an amount corresponding to her earning power (ca 6136/93 Bikel v. Bikel and ca 5930/93 Padan v. Padan; per Justice Meir Shamgar). The rabbinical court issued a similar ruling (File 5715/8005, 14 pdr 212, the Regional Rabbinical Court in Haifa). Nevertheless, it would seem that the question of deducting the wife's "earning potential" still awaits a definitive Supreme Court ruling (ca 4316/96 Ploni v. Ploni, 52(1) pd 394).
[Menachem Elon (2nd ed.)]
I.S. Zuri, Mishpat ha-Talmud, 2 (1921), 79–87; Gulak, Yesodei, 1 (1922), 36f.; 4 (1922), 53, 59 n. 1, 116, 144; Gulak, Oẓar, 23–25, 53f., 59–67; A. Gulak, in: Ha-Mishpat ha-Ivri, 2 (1926/27), 266; idem, in: Zeitschrift fuer vergleichende Rechtswissenschaft, 47 (1932/33), 241–55; J. Epstein, in: Ha-Mishpat ha-Ivri, 4 (1932/33), 125–34; S. Eliezri, in: Sinai, Sefer Yovel (1958), 338–43; et, 1 (19513), 224–6; 4 (1952), 69–78, 80–88, 91–95; 7 (1956), 61–63; Z. Warhaftig, in: Divrei ha-Congress ha-Olami ha-Revi'i le-Madda'ei ha-Yahadut, 1 (1967), 189–94; abstract in Engl.: ibid., Eng. Sect., 267f.; B. Schereshewsky, Dinei Mishpaḥah (19934), 97–146, 171–215; M. Elon, Ḥakikah Datit… (1967), 42–44, 161, 167–9; idem in: ilr, 4 (1969), 134f., 137. add. bibliography: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:110, 112, 188, 465ff., 468, 469, 472ff., 516, 537, 538ff., 541ff., 635, 637, 653, 671, 677ff., 681, 683; 3:1339, 1499ff., 1526ff.; idem, Jewish Law (1994), 1:124, 126, 211; 2:568, 571, 572, 575ff., 628, 654, 655ff., 658ff., 787, 789, 808, 828ff., 835ff., 840, 842ff.; 4:1599, 1785ff, 1816ff.; M. Elon and B. Lifshitz, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-ẓefon Afrikah (legal digest) (1986) 1:36–47, 170–73; B. Lifshitz and E. Shochetman, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefat ve-Italyah (legal digest) (1997), 28–33, 111–114; A. Rosen-Tzvi, Dinei ha-Mishpaḥah bein Kodesh le-Ḥol (1990), 297, 419, 422; A. Westereich, "Aliyata u-Sḥehikatah shel Illat ha-Moredet," in: Shenaton ha-Mishpat ha-Ivri, vol. 21, 123.