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Shabbat Parashat Beha'alotcha| 5765

Pninat Mishpat



Validity of an Appendix to a Divorce Settlement not Confirmed by Beit Din - Based on Piskei Din Rabbaniim - vol. XIX, pp. 274-281
 
Case: A couple brought a divorce settlement to be confirmed by beit din, and the husband gave a get. Some time later, the ex-husband brought appendices to the settlement to beit din, which stated that if the husband will have custody of their child, the ex-wife would have to pay him for child support. Are these appendices binding to create changes in the original divorce settlement?
 
Ruling: It is important to understand the common practice of presenting divorce settlements, which the sides worked out independently, to the courts to have them confirmed and given the authority of a court ruling(p’sak din). Beit din will usually demand to see settlements before carrying out the actual divorce. This is done for several reasons, including, ensuring that the welfare of children of the divorced couple is not compromised and that the settlement does not include illegal or halachically improper provisions. As the practice is widespread that settlements are confirmed by beit din, it is wrong to assume that a signed settlement that did not undergo that process is binding. Usually, signed contracts of that sort are binding based on the rule of situmta, that the fact that it is accepted practice to consider the agreement binding, ensures a full gemirut daat (final decision to follow the provisions therein). However, since a divorce settlement is not deemed complete until the courts confirm it, the rules of situmta do not apply to it until that happens. In this case, the matter is even clearer, because some of the provisions in the appendices contradict those that were included in the main part of the settlement that was confirmed and was never revoked. Therefore, the main settlement is the binding part, not the appendices.
 A further factor is the wife’s claim that she agreed to sign the appendices, because she feared that her husband would not agree to give the get if she would not do so. Although we do not have strong enough evidence that the woman’s situation was of such duress that it nullifies any agreement she made, it does weaken the power of agreements that are anyway questionable, like this one, which she never agreed that beit din would verify.
 The only issue that remains is that the signed document might be deemed as a promise to support the child. As the child is too young to support himself, he is considered like a poor person, to whom a pledge of support is usually binding without kinyanim through the rules of tzedaka. On the other hand, here the obligation in question is to make payments to the child’s father to compensate him for his support for the child. Since her ex-husband is not poor, the obligation to pay him is not one of tzedaka. The majority ruling was not to obligate the ex-wife to pay her ex-husband anything for child support.
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Dedication

This edition of
Hemdat Yamim is dedicated to the memory of
R’ Meir ben Yechezkel Shraga Brachfeld o.b.m.,
Yitzchak Eliezer Ben Avraham Mordechai Jacobson o.b.m.

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