Shiur 17: The Division of Property Following Divorce
I. The Financial Relationship Between Husband and Wife According to Torah Law
As we saw in the shiur dealing with the obligations imposed by the ketuba, the Torah and Chazal established a system of financial obligations between the husband and wife (excellently summarized by the Rambam, Hilkhot Ishut 12:1-3). This system assumes a situation in which the husband is the breadwinner and the party in charge of the economic realm. Thus, he receives his wife's income (“her handiwork” and “the fruits of her assets”), allocates money to his wife to provide for her needs, and pays her ketuba in the event of divorce. Of course, the family structure has changed considerably since the days of Chazal: Today the woman plays an important role in supporting her family, sometimes an even greater role than that of her husband. (Moreover, today there are no polygamous Jewish families.)
We noted in the previous shiur that in the past, just as today, the formal laws governing the financial obligations between husband and wife likely did not find day-to-day expression in normal families. It stands to reason that even in the period of Chazal, a man did not follow his wife around and demand that she hand over the lost objects that she may have found on the street. As long as a family lives in peace and harmony, the husband and wife generally manage a common household. In general, problems only arise when the house is falling apart. When the husband and wife come into conflict, it becomes necessary to define precisely their mutual obligations; when they wish to divorce, disputes arise regarding the division of their joint property.
Modern Israeli law states that when a husband and wife divorce, the joint property that they accumulated over the course of their marriage is divided up equally between them. This law pertains to couples who married beginning in 1974. Regarding couples who married before that year, this division of property is based on a similar determination of the Supreme Court, “the law of joint property.” Both the statutory law and the court's ruling are contrary to classical Jewish law, according to which the husband receives all the property, though he must pay his wife her ketuba and provide his children with food and housing. A few years ago, the Supreme Court began to require the rabbinical courts to follow Israeli law and judicial decisions, and in all cases divide up community property equally between the spouses.
II. Dina de-Malkhuta Dina – The Law of the Country is Binding
The starting point of this discussion is the issue of dina de-malkhuta dina – the law of the country is binding. Does a law passed by the Knesset or a ruling of an Israeli court have halakhic standing based on the rule of dina de-malkhuta? The amora Shmuel established that the laws of a non-Jewish regime have binding force:
Mishna: All documents which are accepted in heathen courts, even if they that signed them were gentiles, are valid [for Jewish courts], except bills of divorce and bills of manumission…
Gemara: …Shmuel said: “The law of the country is binding.” (Gittin 10b)
Shmuel relates to the authority of a non-Jewish government and establishes that one must obey its statutes and ordinances. It is clear from the passage there that the discussion pertains to matters in the monetary realm and not to matters of ritual. For example, the government cannot change the laws of kashrut or divorce.
The Rishonim disagree whether or not the rule of dina de-malkhuta applies in the Land of Israel. The Ran in Nedarim (28a) argues that dina de-malkuta does not apply to the kings of Israel. The Ran bases the force of the rule of dina de-malkhuta on the king's ownership of the land. Throughout the world, the king owns all the land in his realm, and therefore he has the right to say that anybody who does not obey his laws will be evicted from his country. The Land of Israel, however, is an inheritance that we have received from our forefathers, and does not belong exclusively to the king. Because of this, the Ran explains, the laws of the kings of Israel are not binding. Despite the Ran’s position, it would appear that the Shulchan Arukh (Choshen Mishpat 369:6) maintains that the rule of dina de-malkhuta applies even to the kings of Israel. If so, it is fundamentally possible to rely on this rule with respect to the halakhic validity of modern Israeli law.
III. The Difference Between Statutory Law and Judicial Legislation
Regarding the matter at hand, some have argued that a distinction should be made between couples who married after 1974, who are subject to the law legislated by the Knesset, and couples who married before that year, who are governed by the Supreme Court's decision, which is judicial interpretation rather than statutory law. In this context, there are those who cite the words of the Rashba:
And regarding dina de-malkhuta dina of which you spoke, they certainly only said this regarding matters that are commandments of the king and laws of the kingdom. But laws according to which cases are judged in courts, these are not laws of the kingdom, but rather the courts judge according to them on their own, as they find in the books of the judges. For if you do not say this, you, God forbid, nullify the laws of Israel. (Responsa Ha-Rashba, III, no. 109)
The Rashba argues that the rule of dina de-malkhuta dina only binds us to the laws of the king, not by the decisions of non-Jewish judges.
This principle was further developed by R. Yekutiel Asher Zalman Enzil (a leading disciple of the Ketzot Ha-choshen):
Regarding matters that depend on the discretion of the judges appointed to the courts, who follow the laws arranged for them by their earlier sages in their books, some from the Greeks, some from the Romans, and some instituted for them in accordance with the situation in their countries, and they judge in accordance with them using their discretion – it never occurred to any man in Israel who has any brain in his head to apply to them the rule of dina de-malkhuta dina. Rather, they are the courts of non-Jews about which the holy Torah admonishes us not to appear before them for judgment…
The proof is that all their judicial decisions, called sentences, even for them are not considered the law of the country. Proof cannot be brought from one judicial decision to something similar, even if it was issued by the highest court, as is known. And furthermore, we see every day how they override the judgments of judges who are superior to them, and how different judgments are issued in two cases that are identical in all their generalities and their details. And we have often seen how a certain matter comes before a judge and he finds the person guilty, and all his advisors and friends agree with him, and when a matter that is absolutely similar in all ways comes before a different judge in the same venue, he finds him innocent, and both rulings are absolute. How then can we say that every ruling issued by some magistrate or some city or village judge is viewed as dina de-malkhuta? If so, you cancel all the laws of our holy Torah and our enemies become our judges. May the matter be forgotten and never stated. (Responsa Mahariaz Enzil, no. 4)
The Mahariaz Enzil describes in a most picturesque manner the deficiencies of the non-Jewish legal system, which does not judge in accordance with a uniform code of law and is not bound by legal precedents. It is, in effect, a weak system of local courts, adjudicating matters in accordance with local tradition and the judge's discretion.
According to this, it is possible to claim that we are not bound by the rule of dina de-malkhuta to accept the Supreme Court's ruling regarding the division of property, as it is based upon judicial interpretation rather than the Knesset's legislation. However, as noted by Rav Shlomo Daichovski, it is difficult to understand the distinction between legislation and judicial interpretation, for, as we all know from the Torah itself, laws have no meaning without their interpretation, and it is impossible to apply a law without interpreting it. Furthermore, the laws of the state themselves assign legal force to judicial interpretation.
It should be noted further that the Rashba and especially Mahariaz Enzil may relate specifically to the arbitrary legal systems of their day, whose faults they describe in detail. The depictions invoke an image of judicial legislation that is local, unstable, arbitrary in great measure and detached from the laws of the king (and certainly not an interpretation of his laws). The judicial decisions issuing from such a system (of common law) do not fall into the category of dina de-malkhuta. But it is difficult to apply this argument to the judicial system in the State of Israel, which is much more stable, solid and orderly, and which forms a single system together with the Knesset's legislation.
Rav Daichovski further argues that the equal division of joint property at the time of divorce is not an arbitrary decision of the Supreme Court, but rather an assessment of people's intentions: It may be presumed that it was the couple's intention from the outset that in the event of divorce, their joint property should be divided up equally between them. It is possible that support for this can be found in the couple's tena'im agreement, which states: “And they will control their assets in equal fashion.” Such an interpretation is not arbitrary at all.
IV. The Custom of the Country
Over and beyond the question of dina de-malkhuta, it may be possible to invoke a different principle. The Iggerot Moshe (in the context of the laws of hiring) writes that the law of the country, even if it was legislated by non-Jews, impacts upon the intention of the parties in the realm of civil law, and presumably they have it in mind when they enter relationships. That is to say, even if, for some reason, the law of the land is not binding based on the rule of dina de-malkhuta, the very fact that all local residents follow it makes it binding, by virtue of the rule of minhag ha-makom (local custom) (Iggerot Moshe, Choshen Mishphat, I, no. 72). According to this, even if we say that the law of dina de-malkhuta does not apply to the matter at hand, the husband and wife still presumably had in mind that, in the event of divorce, their property should be divided equally between them, as this is what the law of the country demands. Because of this, explains Rav Moshe, the law of the land can also be considered minhag ha-makom, making it binding according to halakha.
A different note, however, is sounded by the Maharashdam, R. Shmuel di Modena, regarding a case that is very similar to the matter at hand. He was asked about a man who married a woman in Portugal and died some time thereafter. The law of the land there was that if a man dies, his wife receives half of his assets. This was the practice there, writes the Maharashdam, and thus it would appear that they married with this in mind. The Maharashdam, however, expresses his reservations regarding such a conclusion:
Wherever there is room to raise the smallest doubt [regarding the nature of the local custom], we do not follow the common practice. And the reason is that we must make every effort to conduct matters in accordance with Torah law. (Responsa Maharashdam, Choshen Mishpat, no. 327)
The more importance and influence we attach to local custom, the more we reduce the impact of Torah law. Therefore, the Maharashdam sought legitimate halakhic ways to avoid recognizing the legal force of customary practice that is different from Torah law. According to him, there is still much room for discussion in our case.
V. Benefit of Society or Secular Ideology?
Some have argued that consideration must be given to the fact that the statutory and judicial legislation regarding equal division of joint property stems from a secular ideology, and not from a sincere desire to benefit society, and therefore they do not fall into the category of dina de-malkhuta. Rav Avraham Sherman writes as follows:
Which laws is a rabbinic court permitted to accept by virtue of dina de-malkhuta? The aforementioned Rema (Choshen Mishpat 369:11) defines the matter in the wake of a responsum of the Rashba: “We only apply dina de-malkhuta to a matter that brings benefit to the king, or that benefits the citizens of the country.” I have already explained what he means in a different article… that “the law of the country is [binding] law” when it stems from needs and is necessary because of the circumstances. When, however, the government legislates laws based on an ideology, whether religious or social, this is not included in the category of dina de-malkhuta, for the religious and social worldview of the people of Israel is exclusively the Torah of Israel…
The law governing joint property, in accordance with which the Supreme Court asks the rabbinical courts to issue their rulings, belongs to that type of laws and statutes, whose conception, birth and development is the result of the world views of the legislators and judges. It developed within the walls of Supreme Court based on the Equal Rights for Women Law (1951), and the Supreme Court itself refers to it as an ideological law… As such the law governing joint property does not fall under the rule of dina de-malkhuta dina, and it cannot be said that all couples presumably marry with this law in mind. (Rav Avraham Sherman, “Hilkhat Ha-shituf Le-or Mishpat Ha-Torah,” Techumin 18, p. 35)
Rav Sherman argues that the rule of dina de-malkhuta dina does not apply to laws that come to compel a certain ideology, but only to laws that come “to benefit the citizens of the country.” If we relate to this argument as the exclusive consideration, we will reach the conclusion that not only does the judicial legislation established by the Israeli Supreme Court not fall into the category of dina de-malkhuta dina, but even the Knesset's legislation from 1974 that establishes equal division of joint assets is not binding from a halakhic perspective.
The formulation of the Rema that Rav Sherman cites, that dina de-malkhuta only applies when the law “brings benefit to the citizens of the country,” is taken from the Rashba. The Rashba explains why it is possible to rely, based on the rule of dina de-malkhuta dina, on a promissory note signed by the borrower, as if it were signed by two fit witnesses:
And do not ask: “Why do we listen to the king?”… Because whenever there is a reason to what the king commands, and he institutes something to improve government of the country, he can say: “Money which by right should belong to one person belongs now to another person.” (Responsa Ha-Rashba Ha-meyuchasot La-Ramban, no. 22)
The Rashba does, in fact, mention the consideration of “improving government of the country,” but unlike the Rema, he uses it in a positive context. That is to say, the Rashba says that since the laws of promissory notes involve an improvement of the government of the country, we can rely there on the rule of dina de-malkhuta. He does not explain which laws of a king are not for the benefit of the citizens of his country. Elsewhere, however, the Rashba writes that the rule of dina de-malkhuta does not apply to the laws of inheritance, but for different reasons, and he does not mention there the consideration of benefitting the citizens of the country, as the Rema does (Responsa Ha-Rashba, VI, no. 254). Thus, the source of the Rema's ruling is very unclear, and it is difficult to understand exactly what he means: When is a law beneficial to the citizens of the country and when not?
Rav Sherman assumes that the judicial decision (as well as the legislation) regarding the division of assets is an ideological, rather than a utilitarian matter, and he mentions two considerations. First, the decision is committed to an egalitarian worldview; second, the decision abrogates property rights in the name of abstract rights and values. The second argument is very weak, for even in Halakha there are many enactments that establish financial obligations for ethical reasons.
What about the argument that the law governing the division of assets between the spouses was driven by a specific ideology, rather than concern for the benefit of society? Rav Daichovski writes trenchantly against this hypothesis:
I disagree with the formulation that the law of joint property is a presumption based on the laws of the nations. I think that the idea of joint property is accepted even among the faithful in Israel, including the homes of rabbinical judges who issue halakhic decisions. Every one of us – and I say this based on clear knowledge – sees his wife as a full partner in his property, and would not think of saying to her: “What is mine is mine, and also what is yours is mine.” This is true with even greater force and vigor in Charedi circles, where the woman works to support the family and the husband sits and learns. It is precisely there that the husband should say to his wife: “What is mine and what is yours is yours.” And it would certainly not cross his mind to see the family property as belonging to him alone. The courts did not invent the law of joint property based on an ideology that contradicts Torah law, but rather they reflected the reality of family life, including Charedi families, according to which the woman is “a woman of valor” – in its most literal sense… The law of joint property should be seen as an ordinance for the benefit of the community, which even had it not been legislated by the courts, should have been enacted by the Sages of Israel. (Rav Shlomo Daichovski, Techumin 19, pp. 217-218)
Rav Daichovski argues that the law of joint property was established not based on some alien ideology, but as a reflection of a given situation, which is common even among Charedi families. In practice, everyone views a couple's property as jointly owned, and an equal distribution of the property in the event of divorce follows directly from this situation.
Some have noted that the present situation sometimes creates inequality to the detriment of the husband: In the event of divorce, the assets are equally divided between the spouses, but the husband is still saddled with one-sided obligations like child support. These obligations were established at a time when the husband received the lion's share of the property at the time of divorce, and so additional obligations were also imposed upon him. This suggests that the whole system is undergoing remodeling and redesign. Halakha has not yet found the proper attitude toward the division of property between the spouses at the time of divorce, in accordance with the family relationships that exist in our time.
(Translated by David Strauss)
 The sum recorded in the ketuba is not absolutely binding today, as it refers to a situation in which the husband divorces his wife against her will, an action that was banned long ago by Rabbeinu Gershom. The final sum that the woman receives in the case of consensual divorce is established through negotiation between the husband and the wife. But the sum mentioned in the ketuba can serve as a starting point for the negotiations. See Rema, Even Ha-ezer, 66:3 and Responsa Iggerot Moshe, Even Ha-ezer IV, nos. 91-92.
 This demand was first raised in the decision regarding the Bavli family in 1992.
 Rav S. Daichovski, “Hilkhat Ha-shituf – Ha'im Dina De-malkhuta?” Techumin 18, pp. 23-25.
 The Sema (Choshen Mishpat, 369, 21), however, writes that one must not follow the laws of the non-Jewish courts, even if the king decrees that one must obey them.
 See Shakh, Choshen Mishpat 73, no. 39.
 Rav Daichovski and Rav Ariel have already noted this point. See Techumin 18, p. 29; Techumin 22, p. 136.