THOUGHTS ON THE DAILY DAF
brought to you by Kollel Iyun Hadaf of Har Nof
Rosh Kollel: Rav Mordecai Kornfeld
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1) HALACHAH: DIVORCING ONE'S WAYWARD WIFE
QUESTIONS: The Mishnah describes the situations in which a woman is divorced
without a Kesuvah. The Mishnah says that a woman is divorced without a
Kesuvah when she transgresses "the law of Moshe and the law of Yehudis (the
Jewish woman)." The Mishnah gives examples of transgressions that fall into
each of those two categories. For example, a woman who feeds her husband
fruit from which Ma'aser has not been separated transgresses "the law of
Moshe" and she is divorced without a Kesuvah. "The law of Yehudis" ("Das
Yehudis") includes a woman who goes out of her home with her hair uncovered.
(a) If a man does not mind that his wife goes out with her hair uncovered,
is he permitted to remain married to her?
(b) If he is permitted to remain married to her and he chooses not to
divorce her, does she still lose her Kesuvah (upon his death, or if he
decides to divorce her for another reason)?
(a) This is actually the subject of a question of the Gemara in Sotah (25a),
where the Gemara asks whether a man may choose to remain married to his wife
who sins. It is not clear from the Gemara whether the question is resolved.
The RA'AVAD (cited by the Rosh, Rashba, and Ran) writes that the question
remains unanswered, and out of doubt we do not force a man to divorce his
wife. The RASHBA and RITVA and others maintain that the Gemara itself
answers that we do not force a husband to divorce his wife.
HALACHAH: The SHULCHAN ARUCH (EH 115:4) rules that a man may remain married
to his sinful wife if he so desires, but it is a Mitzvah to divorce her.
The Rishonim agree that in practice we do not force a man to divorce his
wife, but it is nevertheless a *Mitzvah* for him to do so. The source for
this Mitzvah, as the MORDECHAI writes, is the Gemara in Gitin (90a-b) that
says that if a man sees that his wife transgresses the law of Yehudis such
as by going out with her hair uncovered he should divorce her, and if he
remains married to her he is acting with "Midas Adam Ra." (It would seem
that the same applies to a wife who causes her husband to sin by eating
untithed food etc.)
Similarly, the RAMBAM (Hilchos Ishus 24:16) rules that we do not force the
husband to divorce his wife, but nevertheless there is a Mitzvah for him to
do so (Hilchos Gerushin 10:22). (The CHELKAS MECHOKEK EH 115:18, however,
says that the wording of the Rambam in Hilchos Ishus implies that there is
not even a Mitzvah for the husband to do so, and that the Rambam in Hilchos
Gerushin might be referring to a woman who is acting exceedingly
(b) The question whether or not she loses her Kesuvah if her husband chooses
to stay married to her depends on the reason why she loses the Kesuvah for
being sinful in the first place, as will be explained.
1. The ROSH writes that he may only divorce her without a Kesuvah when her
transgressions *affect him*, such as the cases mentioned in the Mishnah. If
she sins just between herself and Hashem, she is still entitled to receive
her Kesuvah. The reason for this is that her loss of the Kesuvah when she
sins against her husband is not a *punishment* for sinning. Rather, she
loses her Kesuvah because there is no obligation for a man to give his wife
a Kesuvah when *she* is the cause of the divorce. When she is causing him to
sin, it is impossible for him to live with her, and thus she is the cause of
the divorce and he has no obligation to give her the Kesuvah.
Therefore, if he chooses to remain married to her, since her sins did not
cause him to divorce her, when he dies or divorces her for a different
reason she should be entitled to receive her Kesuvah.
Another consequence of this logic is that in a case where the husband also
willfully transgresses those Aveiros mentioned in the Mishnah, his wife does
not lose her Kesuvah upon her divorce. Since, when he divorces her, it is
clear that he is not divorcing her because she is causing him to sin but
rather he is divorcing her for some other reason, he must give her the
Kesuvah -- since it is not her sinning that is at fault for the divorce
(MORDECHAI quoted by HAGAHOS ASHRI 6:9).
The RAMBAM in a Teshuvah (#193) discusses a case where a woman refuses to
immerse in a Mikvah and her husband knows about it and remains silent. The
Rambam rules that if the husband divorces her, he is exempt from giving her
the Kesuvah in order for her not to gain by sinning -- "she'Lo Yehei Choteh
Niskar." It is not clear why this principle should prevent her from getting
her Kesuvah; she does not receive her Kesuvah *because* she sinned, she
receives it because she is getting divorced! Perhaps the Rambam is
discussing a case where the husband divorces his wife at the insistence of
the Chachamim (as the Rambam says in an earlier Teshuvah that a man who
willfully lives with his wife who is a Nidah is put in Cherem for remaining
married to her). Hence, it is indeed her sin that is causing her to be
divorced, and thus she should not profit by receiving her Kesuvah. (The
Mordechai and Rosh cited above might agree that she loses her Kesuvah in
such a case.)
2. The RAMBAM (Hilchos Ishus 24:16) writes that even when the man chooses to
remain married to her, she *loses* her Kesuvah. If the husband decides to
divorce his wife for a different reason, or if he dies, she still does not
receive her Kesuvah.
The Rambam reasons that the whole purpose of the Kesuvah was to discourage a
husband from impulsively divorcing his wife at whim. In the case of a wife
who sins and tries to cause her husband to sin, we do not care if her
husband divorces her at whim. On the contrary, we would prefer that he
divorce her (as mentioned in (a), above)!
The RITVA writes that most Rishonim do not accept this reasoning of the
Rambam, and they rule that a woman does receive her Kesuvah if the husband
does not divorce her because of her sin (like the Mordechai).
Regarding whether she loses her Kesuvah if he remains married to her, the
Poskim (Chelkas Mechokek loc. cit., and Beis Shmuel EH 115:19) cite the
Rambam who says that she *does* lose her Kesuvah.
Nowadays, however, when we do not have the power to force a man to divorce
his wife, RAV MOSHE FEINSTEIN (Igros Moshe EH I:114) rules that she does not
have to lose her Kesuvah even if he wants to divorce her for not following
the Mitzvos, because it is up to her to willingly accept the divorce and
thus she can demand from her husband any sum that she wants for the
divorce -- including the sum written in the Kesuvah.
In addition, Rav Moshe writes that if the husband knew before the marriage
that his wife would be lax in her observance of the Mitzvos of Das Yehudis
and despite that knowledge he still married her, he showed that he accepted
that flaw in her and he is obligated to give her the Kesuvah, like the
Mordechai said. For this reason, he rules that if the husband did not
specifically tell his wife before the marriage that he wants her to cover
her hair, he cannot assume that there is a Chazakah that she will cover her
hair (because many women today do not cover their hair), and thus it is as
if he knew that she might not cover her hair and she does not lose her