TFN NO.5754.9 225-229
CCAR RESPONSA
Marriage and Financial Duress
5754.9
She’elah
A couple in my congregation met one another at a support group for those battling multiple sclerosis. They have had to postpone their decision to be married, based on some very serious medical and economic problems. If one of them becomes fully disabled, full-time nursing care in the home or in a nursing home would be required. The government would insist that the spouse pay for such care and the family would be driven to destitution. Therefore, they cannot share in a wedding ceremony. Does Jewish law offer any guidance to them? (Rabbi Martin S. Weiner, San Francisco)
Teshuvah
Our tradition has the greatest regard for marriage as an institution, an aspiration, and a natural state of existence. The rabbis praise marriage as a quintessential source of joy, blessing, and goodness whose value stands at the summit of Jewish religious obligations.1 One is permitted to sell a Torah scroll in order to raise funds for only three purposes: to study Torah, to redeem captives, and to marry.2 Marriage is thus equated with the study of Torah, which itself is equal to all the other mitzvot combined,3 and the redemption of captives, compared to which “there is no greater mitzvah.”4 In this day and age, when the promotion of Jewish marriage and family life is a communal priority of the highest order, it is most unfortunate when a couple is denied the opportunity of marriage for financial reasons. Such, we are told, is the case before us. What practical guidance does Jewish tradition offer to this couple who wish to live their lives together but, for clear and compelling reasons, fear economic ruin should they choose to stand under the chupah?
We begin by noting that Jewish tradition is sensitive to financial obstacles to marriage and has taken steps to help overcome them. As noted, it is permitted to sell a sefer Torah, a Jew’s most cherished possession, to acquire the funds needed to begin married life. Moreover, Jewish communities throughout history have sought to provide assistance to those who, for reasons of economic hardship, find it difficult to marry.5 This is the act of hakhnasat kalah, which our tradition classifies under the heading of gemilut chasadim, deeds of lovingkindness, itself a rabbinic mitzvah whose roots lie in the Biblical injunction to “love your neighbor as yourself.”6 Such aid is called the most sublime form of tzedakah.7 Thus, from a Jewish perspective the problems faced by this couple are not simply their own problems. Since tzedakah is not a voluntary act of alms-giving but rather an obligation which can be enforced on grounds of social justice,8 they have a legitimate claim to the assistance of the Jewish community. Helping this couple deal with their situation is emphatically a communal responsibility.
This, of course, is easier said than done. Communities face many different responsibilities. Like all public bodies, Jewish communal agencies must wrestle with severe budget restraints to provide for a host of religious, cultural, and social needs. They may decide that, given the many pressing demands upon their resources, they cannot grant the kind or amount of assistance that this couple seek. The general community, meanwhile, has determined that the primary financial responsibility for long-term nursing care must be borne by one’s spouse and family. We might protest this state of affairs and argue that the United States must enact reforms in its health-care system that would provide for this need. We may argue, too, that the Jewish community should reconsider its funding priorities and devote more of its substance to long- term nursing care.9 These policy arguments, however, do not solve the problem facing this couple, here and now. What counsel can we offer them?
We cannot recommend that they live together without benefit of marriage. Although this would afford them a semblance of marital life while allowing them to shelter their assets, cohabitation is not and cannot be a valid moral substitute for kiddushin, a marital union consecrated in a spirit of holiness and reverence, created out of “a willingness to enter wholeheartedly into a sacred covenant with another person.”10 We recognize that this couple, by entering into marriage, will subject themselves to a significant financial sacrifice imposed by the civil law. But the absence of this or that governmental or communal benefit does not offer a moral justification for an act that denies the sanctity of Jewish marriage.
Still, there may exist legal means by which this couple can marry and yet protect themselves financially. Such a means is precedented in Jewish law.
One of the monetary obligations owed by the husband to the wife is that of refu’ah, the duty to provide for her medical expenses.11 Yet the very mishnah which specifies this requirement places an important limitation upon it: “The husband is entitled to say: `Here is her get and her ketubah; let her heal herself.’”12 The husband, that is, may divorce his wife and thereby limit his liability for her medical bills to the total amount of her ketubah. This is a controversial device, to say the least. Some early decisors deny a husband the right to divorce his wife who is seriously ill.13 Others say he has that right but add that it is unethical for him to use it.14 Still others rule that although this right exists in theory it is no longer enforced.15 At any rate, the discussion shows that the rabbis were vitally concerned with the issue in our case: does marriage require a person to risk financial ruin to provide for the spouse’s medical expenses?
The Responsa Committee has dealt with a somewhat related issue.16 There, the wife of an Alzheimer’s patient asked whether she was entitled to divorce her husband in order to protect her assets and to keep from falling into poverty. Since we interpret Jewish marital law in an egalitarian manner, the Committee found the legal material in the preceding paragraph to be relevant to the wife as well as to the husband. It concluded that it would be immoral, a violation of the spirit of kiddushin for the wife to divorce her husband for this reason. It also noted, however, that Jewish law permits a spouse to gain financial independence by renouncing the reciprocal duties of the partner.17 In addition, the beit din is empowered to seize the husband’s estate in the event of his mental incapacity in order to provide for his wife’s support.18 As we understand this rule, it implies that whatever disabilities befall one partner in a marriage, that condition cannot deny the other partner’s inherent right of financial sustenance.
However, our case differs in a crucial respect. We are not talking about the divorce of an incapacitated spouse. The couple are not yet married; they can make legal arrangements to protect each one’s assets and financial independence on a mutual basis, before either has reached a critical medical stage. Thus, we find no ethical objection to the drafting of a prenuptial agreement to this effect, to the extent that such is permitted under civil law.
We hope that a solution will be found that will encourage this couple to “build a household in Israel,” affording them the fulfillment of the sacred union of marriage which our tradition calls kiddushin.
Notes
[1] BT Yebamot 62b-63a; Tur, EH 1.
[2] SA and Isserles, YD 270:1.
[3] BT Shabbat 127a; Yad, Hilkhot Talmud Torah 3:3.
[4] Yad, Hilkhot Matanot Aniyim 8:10; see BT Baba Batra 8a-b.
[5] See BT. Ketubot 67b and SA, YD 250:1-2.
[6] Lev. 19:18; Yad, Hilkhot Avel 14:1.
[7] R. Yosef Kolon (15th century), Resp. Maharik, shoresh 123; SA YD 249:15.
[8] BT Ketubot 49a and Baba Batra 8a; Yad, Hilkhot Matanot Aniyim 7:10; SA YD 248:1.
[9] The question of priorities in the distribution of community resources is a complex rubric in Jewish legal literature. This responsum is not the setting to analyze those texts, but it would certainly be appropriate for this Committee or other rabbinic bodies to discuss them as part of a more general consideration of issues of social welfare and economic justice.
[10] Gates of Mitzvah, p. 29; see also American Reform Responsa, # 133, pp. 406-410 and 154, pp. 480-483.
[11] M. Ketubot 4:9 (51a); Yad, Hilkhot Ishut 12:2. The requirement is derived from the obligation to provide food (mezonot); BT Ketubot 52b.
[12] M. Ketubot ad loc.
[13] This is the opinion of R. Avraham b. David, the Rabad, who bases it upon Sifre, Deut. 21:14 (ch. 214), which states that the Israelite soldier may not send away his female captive of war while she is seriously ill. If this limitation applies to the captive, Rabad reasons, then a man’s wife certainly enjoys the same protection. He restricts the mishnah’s rule to cases where the wife is not suffering from a serious illness. See Rashba, Ritva, and Meiri to BT Ket. 52b and R. Nissim to Alfasi, Ketubot, fol. 19a.
[14] Yad, Hilkhot Ishut 14:17 (Magid Mishneh ad loc.: it is “obvious” that for the husband to exercise this lawful power is a violation of derekh erets); SA, EH 79:3.
[15] R. Shelomo Luria, cited by Bayit Chadash to Tur, EH 79, fol. 102b, and Beit Shmuel to SA, EH 79, # 4. The argument is that should this power be recognized the husband would be able to violate the decree of Rabbeinu Gershom (10th-11th c.) forbidding him to divorce his wife without her consent.
[16] Contemporary American Reform Responsa, # 86.
[17] BT Ketubot 58b; Yad, Hilkhot Ishut 12:4. The wife renounces the right to sustenance (mezonot) from her husband and thereby receives full use of her income. Again, we would apply this formula regardless of gender.
[18] Yad, Hilkhot Ishut 12:17.