Shabbat Parashat Nitzavim Vayeilech| 5764
Financial Arrangements at the End of a Civil Marriage - Based on Piskei Din Rabbani’im V, pp. 124-128
Case: A couple who were married civilly in Russia separated after living together in Israel for some time. In such a case, the standing practice is to have a get given misafek (out of doubt) despite the absence of a formal, Jewish marriage. What financial obligations does the husband have to his wife under these circumstances? (There was no written agreement between the couple prior or during their marriage.)
Ruling: Usually financial obligations require a kinyan (an act of acquisition) in order to make them binding. However, the gemara (Ketubot 102a) says that obligations accepted by the families in the context of a marriage are binding even without a kinyan. Thisis because of the high level of resolve people have to fulfill their word in the context of the joining of families.
Several early Acharonim deal with the aftermath of marriages of assimilated Jews which were performed by the Church during the times of the Inquisition. The question was whether financial obligations that were standard within non-Jewish society at that time were binding on the couple if no other stipulation was made. The Maharashdam (CM 327) ruled that the standard arrangements are binding, based on the Rambam (Ishut 23:12) that matters related to the financial aspects of marriage follow the prevailing local practice. Similarly, the Mabit (cited by Avkat Rocheil 80) upheld the oral agreements of a couple who had a non-Jewish marriage, based on the aforementioned gemara. Rav Yosef Karo (Avkat Rocheil, ibid.) rejects the Mabit and says that the concept that marriage finalizes oral agreements applies only to halachic marriage.
It seems that the basis for the machloket between the Mabit and the Avkat Rocheil depends on the machloket between the Noda B’yehuda and his father-in-law (Noda B’yehuda I, CM 28). The two argue if the extra strength of agreements related to marriage is based on a special rabbinic institution (Noda B’yehuda and apparently the Avkat Rocheil) or based on the special situation from a psychological perspective (the father-in-law and apparently the Mabit). If it is based on an institution, surely the institution was done only for halachically valid marriages.
The Haghot Maimoniot (on Rambam, Ishut 23) cites the Itur that agreements related to marriage work even when they relate to property which will exist only in the future. Although agreements do not usually take effect in such a manner, here they do because such agreements are no worse than situmta. Situmta is a type of action to finalize an agreement, which has no source in the Torah or rabbinic teachings but is widely accepted by the local, contemporary society and is, as such, binding (Bava Metzia 74a). This opinion is the key to what we consider the proper approach. When a local financial arrangement is widespread enough to work within the realm of situmta, then it works even when the marriage is non-halachic, based on clear psychological grounds. However, simple agreements or weak local practices require the aid of the rabbinic institutions that surround the concept of nisuin and apply only to halachic marriages.
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