This post continues the weekly series on the Nishmablog that features responses on JVO by one of our two Nishma Scholars who are on this panel. This week's presentation is to one of the questions to which Rabbi Hecht responded.
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Question: Is a husband obligated to provide for his wife? My husband and I have been married for one year. We are both in our sixties. I agreed to sign a prenup because my husband (who is financially quite comfortable) wanted to protect his estate for his son. I have worked all my life and have always taken care of myself. I earn about half of what my husband does and never inherited any family money. The bottom line is that the prenup became very contentious and I saw the final version at the signing - 48 hours before our wedding. Our guests had already begun arriving. I walked out of the signing and spoke with my attorney who advised that this document was the "best he could do given that my husband started on the process two weeks before our wedding." Against my better judgement, I signed it. Within the first three months of our marriage I wanted it changed. We went to a therapist and he agreed to make changes. There have been continuous fights and multiple promises from him (lies) to make changes.To date, nothing has been done. My fear is that if something happens to him I will not be able to afford to live in the apartment that we presently share. My husband owns the apartment, our prenup stipulated that I pay him rent. EVERYTHING he has goes to his son. I secretly discovered his will- which he refuses to discuss with me. In order to be in compliance with state law he is obligated to leave me something. He is leaving me 2% of his estate and a minimum monthly allowance (administered by his son whom I don't care for) toward the apartment upkeep. Prior to our marriage I was an independent self-supporting woman had an apartment which I could easily afford, lived quite comfortably, and was not dependent on anyone. I gave away most of my furniture, have lost my apartment, and if something happens to my husband will be dependent on the generosity of his son. Even more shocking is that in his will it states, " If I am unable to keep up with the monthly maintenance for the apartment, the estate has the right to evict me in 90 days." My husband and I dated for 5 years prior to our marriage.I lived with him for two of those years although I always kept my own apartment. I saw him as generous of both his time and money to charity, overly generous towards his son, and as a well liked and respected member of the community both professionally and socially. Until the prenup, I never experienced this side of him or had any indication that he would behave like this. Is this a moral and ethical way to treat one's wife ? What can I do?
On the surface, this would seem to be a pretty straightforward question to answer. Jewish Law clearly outlines that a husband is required to provide for his wife in regard to what is referred to as sh’eir, ksut v’onah, which can be simply translated as food (sustenance), clothing and intimacy. (See Shemot 21:10 with Rashi, noting, however, the comments also of Ramban.) A review of the Talmudic discussion of this obligation (for example, T.B. Ketubot 48a) clearly shows that the overall directive is that a husband has an obligation to maintain his wife in the manner that would be proper of a woman at the socio-economic level of the husband. As such, it would seem clear that, for example, a wife paying rent for staying in her husband’s apartment is problematic within the parameters of Jewish Law. The difficulty is that, also within Jewish Law, a husband and wife have some leeway to amend some of these obligations. For example, as a husband is obligated to support his wife, he also is prima facie given the right to the profits derived from his wife’s assets. The wife, however, may exempt the husband from supporting her in return for her keeping the profits of these assets. The reality is that Torah thought, while also acknowledging and fostering the desired romantic nature of a relationship, also recognizes the practical aspect of the marriage connection. In that regard, though, while setting certain base standards as a starting point in the formulation of these requirements within a union, it also does allow, to some extent, for some contractually negotiated leeway to amend these requirements. This, as such, would seem to take us to the case at hand. Did these subsequent contractual amendments violate the base, non-negotiable requirements of the parties?
(It must be recognized that it is with a certain hesitancy that we voice any opinion on this specific case as we have only been presented with the view of one of the parties. Before absolutely commenting on this actual case, it would be most important to also hear the other side. We are told, even more so, that a judge should only hear both sides of a case in the presence of the two sides. See Shulchan Aruch, Choshen Mishpat 17:5. As such, before honestly commenting on the ethical behaviour of the husband, it would be important to hear the husband’s side. Our comments as such should be understood within this context – that we are only responding to the facts as presented by one of the parties.)
There is actually a prior, and perhaps greater, problem that we face in responding to these questions. The reality is that these two parties actually worked out a legal arrangement pursuant to another legal system. The question of how Jewish Law would respond to this case thus touches upon the greater issue of how Jewish Law would respond to contractual relations as determined through another legal system. In such cases, in certain circumstances Jewish Law may accept these contractual determinations while, in other cases, it may not. When the wife now asks what is she to do, the question now becomes not simply what would Halacha say about the matter but to what extent are they bound, by Halacha, to this prenup as worked out by this other legal system. It may even be that she may have some action, within this other legal system, against her attorney for letting her sign such a contract [unless it may have been done against his advice], but that is not the issue before me. (I also do not wish to deal with the question of duress and whether this prenuptual agreement could be challenged on these grounds – grounds that would also have standing in a halachic discussion of a contract of this nature.) The question before me is not what I, as an ethical individual, think she should do pursuant to this other legal systems. The question before me is what I think Torah thought says about this case. To answer that question I have to first define the status of this contractual relationship, in all its details, within Jewish Law. That is the difficulty.
The fact is that Halacha, as with all legal systems, has its own requirements in regard to the formulation of the marriage bond and what it demands from individuals who are part of that contractual relationship. Applicable to our case would be, for example, the Jewish Legal demand, as part of a marriage, of a ketuba, a marriage contract outlining certain responsibilities of the husband and wife to each other. One of the required stipulations in this ketuba is a payment of a certain amount to the wife upon the death of the husband; this payment to have precedence to any claims of inheritance (as well as many other claims on an estate). If this marriage took place pursuant to Jewish Law and there was a ketuba, then there would clearly be problems with the prenup. If, however, this marriage was not pursuant to Halacha and there was no ketuba, this would actually be the issue, according to Jewish thought, not the prenup per se.
Jewish Law creates a certain legal environment for the contractual relationship of marriage. It is within this environment that it balances the variant rights and obligations of the parties to this relationship. While certain detailed principles seem to emerge from a review of this environment – such as a priority lien of a wife’s ketuba on a husband’s estate – it is important to recognize that this detail exists as part of the greater whole. It is thus often most difficult to determine how such ethical details would find applicability within other systems. If this marriage was done pursuant to Jewish Law with a proper ketuba then it is clear that the husband, according to Halacha, is acting in violation of Jewish Law and that the prenup has to be read within the parameters set by the ketuba. (This, of course, may not have standing in the secular courts but we can still state what the Torah ethical requirement is.) If, however, the marriage was formulated outside the structure of the Halacha, we would have to recognize some limitations in our ability to comment for to do otherwise would simply be an attempt to apply the standards set within one contractual relationship upon another.