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Kesuvos, 72

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)?

ANSWERS:

(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.

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 licentious.)

(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).

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.

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 Kesuvah.

72b