Tuesday, 10 May 2022

Baruch HaTov VeHameitiv

A relatively short halachic observation this time, in my mind for personal reasons.

Introduction

Chazal instituted a variety of brachos to be made to thank Hashem for possessions, geographical features of the Universe, life events and more. Some of these brachos are made only in very specific and clearly defined circumstances, such as the bracha made upon sighting the New Moon each month (colloquially known as kidush levana). Others, such as the bracha of shehechiyanu, are made on many occasions, and some thought is required to identify the common denominator between these occasions.

A bracha that is similar to shehechiyanu, but made less frequently, is the bracha of hatov vehameitiv.[1] This bracha is made upon hearing good news or acquisition of new items, where the person hearing is not the sole beneficiary. Examples explicit in the Mishna and gemara are when rain falls and the person owns farmland in partnership with another, joint purchase of a new house or utensils, inheritance, and drinking a new type of wine together with others.[2]

The final explicit example is when a baby boy is born to a couple.[2] The clear implication is that no bracha should be made upon hearing of the birth of a girl. This halacha would have been easily understandable in the ancient world, as the birth of a girl was simply not considered good news.[3] Good news is defined subjectively rather than objectively,[4] such that this halacha is only an indicator of the then prevalent attitude to the birth of a girl, and not necessarily of an objectively 'correct' attitude.

Subjectivity and Modern Application

By the early 20th century, perceptions appear to have changed significantly. The Mishna Berura writes that although the bracha of Hatov Vehameitiv is not said on the birth of a daughter, it is obvious that shehecheyanu should be said the first time one sees his daughter. He argues that this is no worse than seeing a friend for the first time in 30 days, where Chazal tell us that the bracha of shehecheyanu is said.[5]

Although this may have been obvious to the Mishna Berura, I find it extremely difficult to accept that recitation of Shehecheyanu after the birth of a daughter was so obvious to Chazal and poskim preceding the Mishna Berura to the extent that they did not even see the need to write it. Furthermore, the analogy to seeing a friend after 30 days is questionable – the experience of being reunited with an old friend is very different to that of the birth of a child, who the parents have never met before.

It is therefore clear to me that the Mishna Berura simply was not comfortable with the idea that the birth of a daughter could be passed off as a non-event (a similar feeling felt I am sure was felt by many of us the first time we encountered this halacha). By his time, the worth of women simply had to be celebrated, even if full equality was still a long way off.

This position has been accepted at least in part by almost the entire Jewish world. While some poskim disagree with the Mishna Berura and write that no bracha should be said on the birth of a daughter,[6] festive celebrations of the birth of a daughter are the norm in all sections of our society. There is no doubt in my mind that this represents a change from ancient times.[7]

It is also clear that this change has continued past the time of the Mishna Berura, and in today's society, many (if not all) Orthodox Jews experience equal degrees of joy from the birth of male and female children.[8] The logical conclusion is that the ruling of the Mishna Berura, perhaps radical in his time, is now anachronistic. The correct bracha to say after the birth of any child is Hatov Vehameitiv, as long as the parents consider this 'good news.'[9]


[1] The full bracha is ברוך אתה ה' א-להנו מלך העולם הטוב והמטיב, not to be confused with the much longer version said as the fourth bracha after a meal (although clearly both brachos thank Hashem for the good He has given us).

[2] Brachos 59b. When the person hearing is the sole beneficiary, the bracha of shehechiyanu is made.

[3] See also Kiddushin 82b. While this was the prevalent view even then it was not unanimous – see Bava Basra 141a.

[4] Although the Rashba writes that the bracha is only made on tangible benefit and not on any good news. A son typically provided tangible benefits to his parents in their old age and by taking care of their burial (daughters were historically less able to do so), and 'every person desires to have an inheritor' (Responsa 4:77).

[5] Mishna Berura 223:2

[6] See for example Mishne Halachos 13:32

[7] In the above responsum, the Mishne Halachos points out that Ri ben Yakar felt it necessary to tell people not to make the bracha of Hadayan Haemes (said upon the receipt of bad news) on the birth of a daughter.

[8] In my view, this change is a positive one and an example of the progress made by humanity. However, the halachic ramifications would be true even were the change to be neutral or even negative.

[9] Even if the happiness experienced is not 100% equal after the birth of a boy and a girl.

Saturday, 23 April 2022

The Mitzvah of Yibum

Introduction

In the sad event of a married man dying without leaving children, the Torah explicitly commands his brother to marry the childless widow in order to 'build the house of his brother.' This mitzvah is known as yibum, and is an exception to the otherwise severe prohibition of marrying one's sister-in-law.[1] Should he not wish to do so, he must go through chalitza, a kind of shaming process whereby his sister-in-law removes his shoe, spits in front of him and declares, "This shall be done to the man who will not build his brother's house."[2]

There are at least two clear implications from this section of the Torah that may seem strange to people today. Firstly, there is an assumption that the widow would want to marry her brother-in-law under these circumstances, and has contempt for his refusal to do so. This assumption likely no longer holds true,[3] but historically the financial and societal stability available to the widow through this mitzvah would have been a decisive factor in the majority of cases.

Secondly, people may wonder why fulfilment of the mitzvah of yibum is virtually unheard of today. Granted that the whole situation is rare, and even when it does occur, the chances of the brother-in-law and sister-in-law both wanting to marry each other may be slim. But surely there must be some cases where they do want to, and is this not what the Torah wants?

Impure Intentions

In fact, the Mishna tells us that although originally yibum was preferred, now that people do yibum not for the sake of the mitzvah, it is better to do chalitza.[4] The gemara explains that this ruling of the Mishna is in accordance with the view of Abba Shaul, who says that marrying one's sister-in-law for her beauty, for the married status or for any other ulterior motive is 'akin to' incest and that the child of a such a relationship is 'close to being' a mamzer (illegitimate child).

The same gemara says that the ruling of the Mishna was later reversed again, not due to an improvement in motivation but because the halacha was decided according to the Chachamim who argue with Abba Shaul. Thus, even one who does yibum with impure intentions fulfils the mitzvah.[5] However, other sections of gemara indicate that the halacha indeed follows the view of Abba Shaul,[6] and the rishonim dispute what the final halacha is.

Intertwined into these discussions is the question as to what exactly is the position of Abba Shaul. Ramban writes that according to his logic, the attempted act of yibum without the correct intentions has no halachic validity. The sister-in-law remains unmarried and will require chalitza (rather than a get) in order to marry someone else. This is in conflict with the ruling of another Mishna, which states that the act of yibum affects marriage even if done unwittingly.[7] The halacha is like this Mishna, itself demonstrating that the halacha does not follow Abba Shaul.[8] [9] This view appears to be shared by the Rambam in a responsum, who writes that according to Abba Shaul, the prohibition of marrying one's sister-in-law is not 'undone' (הותרה) in the case of yibum, but is only pushed aside (דחויה).[10]

The Ritva argues that Abba Shaul merely applies a Rabbinic stringency forbidding insincere yibum. It was Chazal who instituted that insincere yibum is akin to incest, and that the progeny of such a relationship is close to being a mamzer. On a Biblical level, yibum is valid under all circumstances even according to Abba Shaul, and a get would be required.[11]

According to this, there is no indication from the Mishna that the halacha follows the Chachamim. Nevertheless, the Ritva quotes the ruling of Ramban and his other teachers in accordance with the Chachamim, and does not question this ruling.[12]

By contrast, Tosfos quote Rabbeinu Tam as ruling according to Abba Shaul, forbidding insincere yibum. Rabbeinu Tam does not stipulate that this is merely a Rabbinic prohibition, and it seems that his position is that the lack of sincerity invalidates the entire mitzvah of yibum.[13] However, neither does Rabbeinu Tam indicate, as Ramban would have him do, that ruling according to Abba Shaul negates the validity of yibum performed unwittingly.

Intention versus Motivation

This position of Rabbeinu Tam is a surprising one. There is a general dispute in the gemara as to whether intention is crucial in order to fulfil mitzvos (מצוות צריכות כוונה); practical cases under dispute include cases of a person who blows shofar purely for the music, or one who was forced to eat matzah on Pesach.[14] In these cases, there is no intention whatsoever to fulfil the mitzvah; nevertheless, according to one opinion, the mitzvah has been fulfilled and there is no need to repeat it.

The dispute regarding yibum is different. The brother-in-law intends to fulfil the mitzvah of yibum, but according to Abba Shaul, this intention is not sufficient. Any ulterior motive behind this intention is enough to invalidate the mitzvah.[15] Why would yibum be so different?[16]

Abstinence

The answer to this may be given by the Yerushalmi. The Yerushalmi at first suggests that Abba Shaul concurs with the position of R' Akiva, that if the widow marries another person without chalitza, any children born are mamzerim (a view which is not accepted as halacha). Although this suggestion is rejected, as R' Akiva did not speak about children fathered by the brother-in-law, the suggestion is instructive. The possibility raised was that the connection between the widow and her brother-in-law is not to be treated lightly, and even a small violation on the part of the brother-in-law himself is extremely problematic.

The Yerushalmi concludes that Abba Shaul in fact shares the position of R' Yossi ben Chalafta, who fulfilled the mitzvah of yibum but only engaged in conjugal relations with his sister-in-law (and wife) five times, resulting in the birth of his five children. Even on those five occasions, the act was conducted with abstinence from physical pleasure as far as possible.[17]

This attitude to the mitzvah of yibum does appear extreme. The requirement for complete devotion to the mitzvah, without allowance for natural human feelings, is not something seen in relation to other mitzvos. It seems that Abba Shaul and R' Yossi ben Chalafta felt that the act involved in yibum, if carried out in its natural way, is so antithetical to the idea of fulfilling a mitzvah of the Creator to the point that it cannot be desirable.[18]

In Practice

Based on this view, Rabbeinu Tam writes that we do not allow a couple to peform yibum, even if both of them want to, unless it is 'recognisable and known' that their motivation is for the mitzvah. This is also the ruling of the Rema, whereas the Shulchan Aruch indicates that the halacha is in accordance with the view that yibum is always preferable, even if insincere.[19]

As might be expected from the above, in the Ashkenazi world, the mitzvah of yibum has not been practiced in recent history. The Sephardim did allow yibum, although cases where the brother-in-law and sister-in-law have chosen this mitzvah are rare. Furthermore, in 1950, the Israeli Chief Rabbinate (including Sephardi Chief Rabbi, Ben-Tzion Meir Chai Uziel), attempted to institute a blanket prohibition on yibum, for all Jews. The documented reasoning given was to promote unity, and prevent the Torah becoming like two Torahs.

R' Ovadya Yosef argued strongly that this institution had no validity, and was an example of attempted erasure of Sephardi practice. While in general I do not share R' Ovadya's halachic philosophy of cementing differences between Ashkenazim and Sephardim, my first inclination was that in this instance he was right. What can be achieved by forcibly preventing two people from consensual marriage, when there is a strong tradition allowing it?

However, upon further reflection and study of R' Ovadya's responsum on the matter, I believe I do understand a valid purpose of the institution. Following the view of the Chachamim would not only have an effect on cases where both parties fully desire of marriage. R' Ovadya writes that if one of them wants to do chalitza, it would be good to attempt to persuade them of the value of the mitzvah of yibum.[20]

There should be no need to explain that such well-meaning attempted persuasion could have disastrous effects in the modern world. If we are going to allow yibum, caution must be exercised to ensure that the results are net positive. On the other hand, while cutting off any possibility of yibum may prevent such disasters, it remains an extreme step. At the very least, we should be aware of the philosophy behind the view this step is based on.


[1] A relationship with a (former) sister-in-law following divorce from the brother, or after the brother dies leaving children, is punishable by kareis (early physical and/or spiritual death).

[2] Devarim 25:5-10

[3] Although thankfully, due to medical advances and other factors, the situation itself is much rarer than it used to be.

[4] Bechoros 13a

[5] Yevamos 39b

[6] See Yevamos 3a and 109a, Kesuvos 64a.

[7] Yevamos 53b.

[8] Chidushei HaRamban, Yevamos 39b. R' Shmuel Rozovsky explains that according to this, the language 'akin to' and 'close to' merely reflects Abba Shaul's uncertainty as to the correctness of his position (Shiurei R' Shmuel, Yevamos 473).

[9] It is worth pointing out several examples in the gemara where although no mitzvah of yibum exists, the severe prohibition of marrying a sister-in-law (carrying the punishment of kareis) also does not apply:

1. After performing chalitza, yibum is no longer an option, but it is forbidden only through an independent negative commandment (אשר לא יבנה את בית אחיו) or Rabbinically (see Yevamos 10b; Rambam Hilchos Yibum v'Chalitza 1:12).
2. If the brother-in-law is not yet bar mitzvah, there is no mitzvah of yibum but also no prohibition (Yevamos 111b). 
3. If the widow is pregnant, yibum is forbidden and invalid even after the fact, even if the child is later stillborn. There is however no liability to bring a korban (see Yevamos 35b, following Reish Lakish).

Presumably according to Ramban, Abba Shaul would also question all of these halachos, as there is no mitzvah and therefore potentially no waiver of the severe prohibition (regarding the first example, one could argue that as the mitzvah of chalitza has been performed, no further mitzvah is required).

[10] Responsa of the Rambam, siman 218. The Rambam rules according to the Chachamim in Hilchos Yibum v'Chalitza 1:2.

[11] Chidushei HaRitva, Yevamos 53b. He reasons that were the Ramban correct, the gemara would have stated clearly that the above Mishna is against Abba Shaul. It is possible that according to the Ritva, 'close to being a mamzer' is not a real halachic status and in actuality the child could marry. The phrase is meant to stress the severity Chazal attached to insincere yibum.

[12] Ibid. Kesuvos 64a

[13] Kesuvos 39b (ד"ה אמר רב). It is also explicit in the Or Zarua (Hilchos Yibum V'Kidushin siman 638), who follows Rabbeinu Tam, that the problem with yibum is on a Biblical level.

[14] See Rosh Hashana 28a.

[15] This is implied by the language "for the sake of beauty, married status or for another ulterior motive." However, several acharonim do conflate the dispute regarding yibum with the general concept of intention to fulfil mitzvos. See for example Kovetz He'aros siman 36; Aruch HaShulchan, Even Haezer siman 165.

[16] The question holds even if the problem is Rabbinic.

[17] Yerushalmi, Yevamos 1:1. The Bavli tells a different (and contradictory) version in Shabbos 118b, whereby R' Yossi ben Chalafta's abstinence took on a different form and did not involve yibum.

[18] According to this, the terms "akin to incest" and "close to being a mamzer" are rhetorical flourishes designed to show the severity of the issue (and concern that a child of this relationship will likely not turn out well) and are not meant in halachic terms. In reality, no incestual relationship is involved and there is no real issue of mamzerut. Support for this can be found from the language of the gemara and poskim that the mitzvah of chalitza is merely preferable to the mitzvah of yibum (according to Abba Shaul), implying that yibum is not actually forbidden.

[19] Even Ha'ezer 165:1. It is worth pointing out that while the Shulchan Aruch does quote an opinion that chalitza is preferable (the view of Abba Shaul), no dissenting view is brought in relation to the validity of yibum post facto (this halacha is quoted in 166:7), or in relation to any of the other halachos discussed in footnote 9 above.

[20] Yabia Omer 8, Even Ha'ezer siman 26

Wednesday, 23 March 2022

Protecting Criminals

Disclaimer: While this is strictly a blog for spreading Torah, this particular post is light on Torah sources as the source for much of this material is common sense. The main Torah-related claim here is that no part of the Torah contradicts anything I have written here - if anyone disagrees (and I know that they do), I would be happy to hear their arguments and refute any such reading of Torah sources.

Introduction

Every nation produces criminals, and the Jewish People is no exception. When we have lived autonomously, we have always had methods of fighting crime internally, whether through the punishments that exist within halacha or through the power given to our leadership to institute extra measures where necessary.[1]

Over the past few hundred years, Jews were gradually granted the same protection given by states to their non-Jewish citizens.[2] The flip side of this was the loss of Jewish autonomy, and the need to rely on the state for law enforcement. I already wrote in You shall pursue justice that under these circumstances, provided that the non-Jewish (or non-religious) criminal courts act fairly, reporting crime to the relevant authorities is certainly permitted (not doing so would usually be irresponsible).

Even in modern countries today, there are some cases where non-Jewish courts do not act fairly. In one case a few years ago, the Jewish fraudster Sholom Rubashkin was sentenced to jail for a disproportionately long period in the US and appropriately, a long and ultimately successful campaign was fought to secure his release.[3] Just as parents should love and care for their children despite any misdemeanours that they might commit, the Jewish People must not turn its back on Jewish criminals.

This is, however, no excuse for treating criminals as heroes. Sadly, much chilul Hashem has been caused by Rubashkin going on several well-attended speaking tours of Jewish communities across the world (for the avoidance of doubt, his talks are about trusting in Hashem and not about doing teshuva for his crimes).

Other cases are less clear-cut, for various reasons. This post will deal with a few examples of some high-profile Jewish criminals and alleged criminals, and the issues that they raise.

Espionage

Jonathan Pollard is viewed in Israel in an overwhelmingly positive light. Not only was he imprisoned for an anomalously long period, the popular view is that the only crimes he committed were to mitigate misconduct on the part of the US government, who were endangering Israel's security by withholding information. If this were true, his actions were wholly justified and there would not be much to discuss.

This narrative is strongly disputed, and the reality is that the nature of the field prevents us from knowing the whole truth. We can however point out a few general principles. Firstly, in theory, espionage should never be necessary between true allies. Information that is critically important to know should be shared, and this should not cause any damage to either party. Similarly, just as individuals are entitled to privacy where appropriate, countries should respect each other's right to keep some information private where it is not critical for security.

In practice, 'true allies' are at best hard to find and possibly non-existent. It is a well-known adage that countries have no friends or enemies, only interests. If espionage is an established feature of international politics, no-one should be surprised or appalled if they become a victim of it. If enlisting a citizen of an allied country to spy on that country is a tactic used by the US, imposing such a severe penalty on a US citizen for performing the same service for an allied country is morally problematic.

Either way, in this case Israel decided to conduct espionage of this nature. Whether this was right or wrong, the country owes a debt of gratitude to the person who helped them. It is therefore understandable that the country honours Jonathan Pollard, and that Israeli citizens trust the judgement of their government regarding an issue that is subject to many unknowns.

Extradition

Sometimes it is clear that an individual should face trial for a crime committed (or allegedly committed), but there is a question as to where this trial should take place. Typically, this will occur when a criminal flees the country in which the crime was committed. At least in principle, most countries accept the idea of forcibly returning the offender, so that they can be tried by the relevant country's legal system.

The reason for this is that different laws apply in different countries. Some actions may be illegal in some countries and permitted in others (e.g. jaywalking or bigamy); even heinous crimes like murder are treated with varying severity depending on the country. States generally accept the jurisdiction of other states over crimes committed within their borders, so that the laws of each country only apply within that country's borders.

It is therefore usually not legally possible for a court in one country to try someone for crimes committed in another. This has the potential for allowing criminals to escape justice by fleeing, and in order to prevent this, many countries enter into extradition treaties.

From a Torah perspective, halacha governs all relationships between Jews, and the jurisdiction of beis din extends to crimes committed all over the world. There may be questions over which beis din should try a case, but this is probably dependent on where the defendant lives rather than on the place the crime was committed.[4] It would therefore seem that at least in an ideal world, where crimes are tried by beis din, there is no halachic basis for extradition.[5]

As has already been mentioned, in the non-ideal world that we live in, batei din have no jurisdiction over criminal cases and we rely solely on the secular legal system to enforce law and order. Extradition is a part of this system, and until the restoration of Torah law, we likely have no choice but to accept it.

However, even according to secular law, extradition is not automatic. The host country will usually also take reasonable steps to ensure that the criminal or alleged criminal will be treated fairly before turning them over. For example, some countries will not extradite when there is a risk of the death penalty being imposed. Some countries never extradite their own citizens, usually instead allowing prosecution of citizens for crimes committed abroad.[6]

Israel is slightly anomalous in this regard. Israeli law allows extradition of its citizens subject to certain conditions, while also allowing prosecution of Israeli citizens for crimes committed abroad (this requires the approval of the Attorney General). Where relevant, the first option is preferred.

This raises serious halachic and moral questions, as leaving Eretz Yisrael on a long-term basis is forbidden.[7] Although there are exceptions to this, forcing a Jew out of Eretz Yisrael is certainly not permitted. Returning to our earlier comparison, this is like parents evicting a child from their home. It would seem that we should make every effort to change this law.

The reality is that the law did used to prohibit extradition of Israeli citizens. In 1997, Samuel Sheinbein committed a horrific murder in the US and fled to Israel, where he had dual citizenship. The high court ruled that he could not be extradited, and he was instead given a jail sentence and imprisoned in Israel (he was later killed in a shootout after opening fire on prison officers with a smuggled gun).

This whole episode caused a rift between Israel and the US, and eventually led to the law being changed. In 1999, the law was amended to apply only to Israeli citizens who were also resident in Israel. In 2001, a further amendment was made to allow the extradition of Israeli residents for trial, on condition that the criminal would return to Israel to serve any jail sentence.[8]

This last amendment passed in the Knesset without objection, either from religious or non-religious parties.[9] One can only assume that there was a consensus that preserving a good relationship with the US was worth the price of forcing one or two criminals out of Israel. If even one life was saved by this, I would agree.

Jewish Oligarchs

In the past weeks, many individuals and entities with links to Vladimir Putin and the Russian Government have been sanctioned by much of the international community. The aim is to prevent those who aid the atrocities committed by Putin and Russia in Ukraine, either directly or indirectly, from being able to live as normal. The hope is that this will pressurise these individuals, and Putin himself, into ceasing their actions.

Israel has been faced with a difficulty in relation to some of the Jewish oligarchs close to Putin. Many of these have Israeli citizenship, and some may already be living in Israel. The tax breaks offered to new olim have long been an incentive for these individuals to reside in Israel or to base their assets here, and this has presumably been of some benefit to the Israeli economy.

While it is right that Israel's doors are open to all Jews, it should be obvious that this should not obstruct efforts to stop the mass murder of Ukranians (some of whom also happen to be Jewish).[10] There is not even any conflict between the two – if Jewish Russian oligarchs want to live in Israel, they have the option to make this possible by cutting ties with Putin and the Russian government.

To date, Israel has failed to impose the same sanctions imposed by other countries. In my view, the only possible justification for this is the belief that this may allow Israel to act as a mediator between the Russians and the Ukranians, ultimately limiting the murder. I have serious doubts as to whether this is the case or even plausible, but I am no expert.

Some are arguing that avoiding animosity with the Russians is necessary to preserve our own interests. Our military operations against Iranian targets in Syria are made possible by the Russians turning a blind eye, and thus antagonising the Russians endangers our own security.

I reject this argument. While I do not know the fine details of the relationships between Iran, Syria, Russia and Israel, I believe that it is safe to say that any threat posed by Russia to Israel is not remotely on the same scale as the real and present danger to Ukrainians. Appeasing the Russians at a time like this for speculative gains in the long run, is not a position becoming of the people who are supposed to be a light unto the nations.


וְשָׁפַט בֵּין הַגּוֹיִם וְהוֹכִיחַ לְעַמִּים רַבִּים וְכִתְּתוּ חַרְבוֹתָם לְאִתִּים וַחֲנִיתוֹתֵיהֶם לְמַזְמֵרוֹת לֹא יִשָּׂא גוֹי אֶל גּוֹי חֶרֶב וְלֹא יִלְמְדוּ עוֹד מִלְחָמָה:

(ישעיה ב, ד)

"He will judge between the nations and rebuke many peoples, and they will grind their swords into spades and their spears into sickles. A nation will not raise a sword to another nation, and they will no longer learn war.”

(Yeshaya 2:4)



[1] See Choshen Mishpat siman 2

[2] During the same period, the protection granted to non-Jews greatly increased, with the rise of democracy and the view that governments exist to serve their citizens rather than the other way round.

[3] This is one form of the mitzvah of pidyon shvuyim (redeeming captives).

[4] Chazal discuss situations where two litigants disagree on which beis din to go to for civil disputes, and the halachos are summarised in Choshen Mishpat siman 14. At least in principle, the claimant usually has the right to decide where to go (see Sanhedrin 31b), although there are several factors involved and in practice, it is usually the other way round.

Criminal law is different, as the only 'litigant' is the defendant and there is no claimant (while there may be a wronged party who wants vengeance, he or she is not relevant to the judicial proceedings). Chazal do not discuss explicitly which beis din should try an alleged criminal, but a number of sources suggest that each person is primarily under the jurisdiction of the beis din of their home city. This starts from the Torah itself in Devarim 19:12 and 25:8.

[5] Even if a person commits a crime in their hometown and then flees elsewhere, as long as they plan to relocate permanently and their new hometown has a competent and just beis din, it should not be a problem for this beis din to try them.

[9] The protocols are available here.

[10] Although this would certainly be true even if no Jews were in danger.

Tuesday, 1 February 2022

Child Custody and Maintenance

Introduction

As I wrote in The role of women, there is no denying that in much of the Western world today, women are far more likely to earn a significant percentage of household income. Similarly, men are more likely to be responsible for a significant amount of childcare and other domestic chores. This raises questions over whether historical assumptions relating to child custody and maintenance in the case of divorce remain valid today, both in the secular justice system and for batei din.

In this post, I will outline the halachic principles set by Chazal and some changes that have been made to their application in the last century or so without significant opposition. I will also discuss some further, more recent changes that have been suggested, over which there is less of a consensus.

Physical Custody

If a divorced couple have non-adult children, the primary question will be over where these children should live. The gemara tells us that a daughter stays with her mother, but is ambiguous regarding sons.[1] The Rambam writes that sons also live with the mother until the age of six, after which the father may issue an ultimatum – if the son stays with the mother, he will no longer provide for him.[2]

The Ra'avad and others argue that the father must have a right to custody over sons from birth, in order to teach them Torah. However, the Shulchan Aruch rules in accordance with the Rambam, with no mention of any dissenting view.[3]

It is important to point out that it appears from the words of the Rambam that even after the age of six, it is the mother who has the inherent right to custody. If she wants to keep her sons with her and is able to provide for them independently, the father can only withhold maintenance payments.[4]

The Rambam goes on to clarify that although the mother has this right, she has no obligation to exercise this right. In the rare event that she opts out of providing childcare, the ultimate responsibility lies with the father.[5] It may be said that the mother has the right to custody but no responsibility (should she choose to forgo her right); the father has only responsibility and no inherent right.

Child Support

The source for the cut-off point at the age of six appears to be the father's obligation to support his children financially, which is only halachically binding until the age of six.[6] After this age, although a father is still expected to support his children and is considered exceptionally cruel if he does not, he cannot be forced to do so.[7]

It follows therefore that although the mother has the inherent right to custody, once children have reached the age of six, the father can use his technical exemption from paying for child support as a bargaining chip. However, Chazal put a stop to this in the case of daughters, forcing the father to support them even in their mother's house. The Rambam explains that the mechanism for this is the authority of beis din to force people to give charity.[8]

Presumably, the distinction made between sons and daughters is based on what Chazal saw as being best for the children. It was assumed, as a general rule, that daughters are better off with their mothers. With sons, the question is more complex, as the father's obligation to teach them Torah is in conflict with the benefit of being with the mother. It was therefore decided 'not to interfere', leaving it to the parents to negotiate where natural bargaining chips exist.[9]

The Institution of 1944

The rationale for many of the rules above has become obsolete, and this has been recognised by batei din. Firstly, in 1944 the Rabanut HaRashit (Chief Rabbinate), using their powers under the British Mandate, instituted that courts would be able to force fathers to support their children until the age of 15. They explained that in their times, there would be significant ethical dangers for children below 15 if their maintenance was not legally ensured.[10] This was extended to the age of 18 in 1980.

Although it may not have been the original intention of this institution, it would seemingly have a knock-on effect for physical custody. The father no longer has a bargaining chip that he can use to get custody of his sons, as he is obligated to support them until the age of 18. Indeed, batei din nowadays in general do not distinguish between boys and girls when it comes to physical custody of the children.

However, this does not mean that the mother always gets full physical custody. Maharam Padova, quoted by the Rema,[11] writes that as the mother's 'right' of custody over daughters is only based on this being in the child's best interests by default, it is up to beis din to adjudicate whether this holds true in each case. In practice, this means that nowadays, for children over the age of six, it is most common for the parents to divide physical custody equally (or almost equally).[12]

The distinction between children under and over the age of six remains until this day, with both batei din and secular courts in Israel in general awarding the mother with custody of children under the age of six. Recent attempts to change the law have not succeeded, and were also opposed by the Rabbanut.

As we have seen above, the halachic basis for this distinction is far from clear, once the father has the enforceable obligation to support his children until the age of 18. It appears that the old default position has been (partially) retained for a different reason, that young children are in general better off being with their mother.[13]

Recent Developments

In a world where men and women are increasingly being seen as identical, it may be only a matter of time before full gender equality is applied to child residency. Whether this is a positive change or not is a broad, largely non-halachic question, and I will not voice an opinion here. I will just mention that a minority of dayanim have argued that change is required,[14] such that no full halachic consensus exists already today.

Some serious halachic consideration is also required regarding gender equality with respect to child support. We have so far assumed throughout that any obligation to support one's children falls solely on the father. This is explicit in the words of Chazal quoted above, and was unquestioned until recently. The question is whether this still applies in a case where each parent has a similar income. Does it make any sense for the father to bear full financial responsibility for his children, when everything else is divided equally?

This question is subject to significant controversy, both in the secular courts and in batei din. Among dayanim, there are three basic approaches:

1)      The full obligation, at all ages, remains fully on the father in all circumstances. Both the institution of Chazal for children up to the age of six, and that of the Rabbanut for children aged 6-18, explicitly obligate the father alone, irrespective of the parents' income.[15]

2)      The above is true regarding children up to the age of six. However, the institution of the Rabbanut for children aged 6-18 is more flexible, and follows the standard rules of tzedaka. As such, it is dependent on the respective incomes of the parents, and they must share the expenses proportionally.[16]

3)      Even for children under the age of six, both parents must share the financial burden in proportion to their income. Chazal placed the obligation on the father alone based on the conditions of their time, whereby women did not have any significant income, and even those who did would likely remarry and surrender this income to their new husband.[17]

A full analysis of the arguments given by the various poskim is beyond the scope of this post.[18] However, I do have two observations to make which I believe are important.

Firstly, in relation to the institution of the Rabbanut for children aged 6-18, the question as to whether this can apply to the mother as well as the father should be moot. If the needs of the times require an update to this institution, this update should be made by the Rabbanut irrespective of whether it can be read into the original institution. The Rabbanut of today has no less authority than the Rabbanut of 1944, and they must display the same level of courage and responsibility.

Secondly, even if these institutions cannot apply to the mother, a ruling of the Haifa Beis Din makes a crucial point in relation to the obligation of the father.[19] The obligation of the father to provide for his children was certainly instituted for the benefit of the children. However, in some situations, the children actually stand to lose out from this obligation.

In the case in question, the father was on unemployment benefit of 6,000 NIS per month, whereas the mother had a monthly salary of 14,500 NIS. The parents shared physical custody equally. Forcing the father to pay maintenance would inevitably lead to the children living a life of increased poverty half of the time, and thus would make no sense.[20] It was therefore possible to prevent some degree of injustice without resorting to any creative new obligation on the mother.[21]

In Conclusion

Divorce is always a difficult situation, and the responsibility of settling related disputes in a just manner is great. However, this area also presents an opportunity for batei din to lead the way by finding innovative ways to ensure that any suffering is kept to a minimum. The system in place in the secular courts is far from perfect, and if the batei din can implement superior methods this could create a significant Kiddush Hashem.


[1] Kesuvos 102b. Rashi and some other rishonim understand that this rule applies only when the father has died, but the accepted halacha is that the same is true after divorce.

[2] Hilchos Ishus 21:17. The continuation of the gemara says explicitly that if a father dies leaving a young boy, he stays with the mother and not with the heirs of the father (for a girl this would be obvious). Sons of living, divorced parents, are not discussed.

[3] Even Ha'ezer 82:7. The Magid Mishne explains that the father's obligation to teach his sons Torah at this age does not require a large amount of time, and may be fulfilled during occasional visits.

[4] See however Chelkas Mechokek on the Shulchan Aruch.

[5] Ibid. 21:18. Even if there is no father, the mother does not have any obligation towards her children and may leave them for the community to adopt.

[6] Kesuvos 65b

[7] Kesuvos 49a-b

[8] Hilchos Ishus 21:18. This concept was discussed in Tzedaka - who gets what?

[9] Rashi and the Ran explain differently, that the entire obligation of the father to provide for one's children is only part of the husband's obligation to support his wife. It applies until the age of six because during this period, children are dependent on their mother and are therefore considered 'subsidiary' to her. According to this, the mother's right to physical custody precedes the father's obligation of child support. I have not followed this view above, as it implies that the father's obligation to support his children only applies if he is married to the mother, and this is not accepted as halacha (the Ran himself raises this issue). See however Igros Moshe, Even Haezer 1:106, who supports the position of Rashi and the Ran.

[10] The full explanation, signed by Chief Rabbis Herzog and Uziel, can be seen here (in Hebrew). At the time, although batei din did not have the authority to rule on cases of child maintenance, the government courts would adjudicate based on Torah law when dealing with Jewish families. The problem cited was pre-divorce - cruel fathers would sometimes use their technical exemption from providing for their children, in order to force their wives to accept a get.

It is interesting to note that following this institution, a dispute developed regarding its interpretation. Many poskim claimed that as the purpose was only to enforce child support in the case of recalcitrance, it applies only where the children have a need for this support and the father has the means to support them. If for example the children are wealthier than their father is, or if the father is mentally incapacitated, it may not apply. However, R' Herzog and R' Uziel themselves insisted that the institution applies in all cases (see Shu"t Yabia Omer, Even Haezer siman 22, for details).

[11] Even Ha'ezer 82:7

[12] This is the case in Israel and in many other countries, although in some countries it is still more common for the mother to be awarded full residency by default.

[13] According to Rashi and the Ran this is in fact the original reason, but as mentioned in footnote 9, this view is not the accepted halacha.

[14] See for example this piece (in Hebrew) by R' Uriel Eliyahu, dayan in the beis din of Netanya. He argues that more often than not, shared residency is the most beneficial for all parties, and that studies to this effect do not stem from a problematic blurring of gender roles. Rather, there is a recognition that children should not miss out on the distinct attributes that their fathers and mothers have to provide.

[15] This is the position of R' Daniel Edri, dayan on the Beis Din HaGadol, in several rulings. See for example https://www.psakdin.co.il/Court/2320020#.YfmE1upBzDf. The suggested justification given by R' Edri for the one-sided obligation on the father is that (divorced) women typically (re-)marry and become subservient to their (new) husbands, and thus are unable to support their children. I can only assume that although he is aware that this is no longer borne out in reality, he believes that this is the ideal and that halacha is designed to direct us back towards this ideal.

[16] R' Shaul Yisraeli, Chavos Binaymin 2:42. This is also more or less the position of the secular courts in Israel today.

[17] R' Uriel Eliyahu in this piece. Although in my view he presents some strong arguments, R' Eliyahu is currently somewhat of a lone voice.

[18] Some of these arguments are based on the questions discussed in footnotes 9 and 10 above.

[19] The ruling can be viewed here.

[20] The couple had two children, one below the age of six and one above. Somewhat incredibly, the beis din obligated the father to pay limited maintenance costs in respect to the child below the age of six, and only applied the logic above to the institution of the Rabbanut. In my view, the institution of Chazal would also not apply in such a case.

[21] In regards to the original question, the beis din ruled in accordance with the first view above. Thus despite the mother's high income, they did not impose any obligation on the mother to pay maintenance.