Towards the beginning of the week, we all celebrated the most amazing Yom Tov of Purim. Hopefully we have all taken lots of chizuk from this special day, and have learnt how Hashem is always with us, however, dark the situation seems. In the Megillah it says: ולא יעבור – “It shall not pass” (9:27), Rebbe Henoch of Alexander zt”l explains that this means that Purim should never pass, never leave us. What we acquire should remain with us forever. Therefore, although Purim has passed, we must make sure it never leaves us.
After months and months of preparing for Purim, it’s now time to move on and start preparing for the next big Yom Tov on the calendar – the Yom Tov of Pesach. Although many noshim tzidkoniyos [righteous women] will tell you that they have been Pesach cleaning since Chanukah, the intensity certainly increases in the next few weeks. A common shailah that arises when people are Pesach cleaning, is that sometimes they accidentally throw out their kesubah. Many people go through their cupboards and decide that it’s time to throw away all the old receipts, bills etc. that have piled up over the years, and sometimes people end up accidentally throwing away their kesubas. Or sometimes, people start going through the cupboards checking what exactly is in the cupboard, and they end up realizing that during last year’s pre-Pesach clean they threw away the kesubah, therefore, this week will take the opportunity to discuss what to do in such a case, must the husband and wife split up? Must the wife tell her husband, or can she keep quiet? Can they simply write a new one? Must the same witnesses as the original kesubah be used? What happens if it’s Shabbos? Can they rely on the Rabbanut kesubah? and various other kesubah related halachos.
Connection To This Week’s Parsha
This week’s parsha starts off with Hashem instructing Moshe to command Aharon and his sons, in regard to the various halachos related to the korban olah. Chazal note the use of the word, 'tzav' in the pasuk; normally the Torah would say ‘tell Aharon and his sons..’ why here did the Torah use the stronger language of ‘tzav’? The Medrash, quoted by Rashi explains that the word ‘tzav’ implies an extra sense of zerizus [alacrity] and that there was an extra necessity for this stronger language with regard to the korban olah. Rebbe Shimon explains that there is an element of financial loss involved with this offering, therefore there was the concern that the Kohanim would be more hesitant in fulfilling its halachos. Accordingly, it used the stronger language of 'tzav' in order to warn the Kohanim of the extra need for zerizus in bringing the korban olah. We see that when it comes to loss of money people are more careful, more cautious, and need extra encouragement.
The Gemara in Yevamos (89a) teaches: מאי טעמא תקינו לה רבנן כתובה שלא תהא קלה בעיניו להוציאה – “What is the reason, the Rabbonon instituted the kesubah? In order that it shouldn’t be too easy for the husband to send away his wife”. Because people are more careful and cautious when it comes to spending money, Chazal instituted a kesubah to ensure that people think twice before giving their wives a get. We see that not only is the topic of kesubah a timely topic, it’s connected to this week’s parsha as well.
The Obligation to Write a Kesubah
When a chosan gets married, he is obligated to write a kesubah for his kallah and hand it over to her, the kesubah is a document which lays out the monetary obligations that a Jewish husband has to his wife. The kesubah is a very important document, and the kallah should make sure to guard it well. If the kesubah gets lost, the Mechaber (Even HaEzer 66:1, following the opinion of the Rambam) writes that it is forbidden for a husband and wife to live together until they get a replacement kesubah. The Rema (following the opinion of the Ran) is more lenient and allows them to live together in the same house, however, they aren’t allowed to have relations with each other. The Levush writes, that even according to the lenient opinion, they may only live together for up to three days.
De’O’raisa or Derabonon?
There is a machlokes Rishonim if the obligation to write a kesubah is de’O’raisa [mandated on a Torah level] or derabonon [mandated on a rabbinic level]:
Tosfos in Kesubos (10a) quotes several Gemara’s throughout Shas which seem to imply that the obligation to write a kesubah is rabbinic in nature. For example, the Gemara in Yevamos (89a) says: מאי טעמא תקינו לה רבנן כתובה שלא תהא קלה בעיניו להוציאה – “What is the reason, the Rabbonon instituted the kesubah? In order that it shouldn’t be too easy for the husband to send away his wife”. Tosfos asks: קשה דנהגו לכתוב בכתובה כסף זוזי מאתן דחזי ליכי מדאורייתא – “This is difficult, as the custom is to write on the keusbah, 200 silver zuz, which is deserving for you according to the Torah (which clearly sounds like the obligation to write a kesubah is de’O’raisa)?” Tosfos answers, that there are two types of kesubos, one which is given to women that have never been married before, and another type given to women that have previously been married. The kesubah given to a woman getting married for the first time is de’O’raisa, however, for a woman who has been married before, the kesubah is derabonon “in order that it shouldn’t be too easy for the husband to send away his wife”.
The Rambam (Hilchos Ishus 10:7) and many other Rishonim, however, learn that the obligation to write a kesubah is rabbinic in nature. The Shulchan Aruch rules accordingly. The Ramban (Kesubos 110b) and the Ran (65b) learn that since the obligation to write a kesubah is rabbinic in nature, if it is written in the keusbah: כסף זוזי מאתן דחזי ליכי מדאורייתא – “200 silver zuz, which is deserving for you according to the Torah”, then the kesubah is pasul [disqualified]. This is one of the big differences between a Sephardi and Ashkenazi kesubah. The Sephardim make sure not to include the above line. However, whether the chiyuv to have a kesubah is de’O’rasia or derabonon, either way, one isn’t allowed to be together with his wife without a kesubah.
Now That We Have the Enactment of Rabbeinu Gershom Which Forbids One from Divorcing His Wife Against Her Will, Is There Still a Need for a Kesubah?
The Rema (Even HaEzer 66:3) writes: “See later on siman 177, where it says that in a situation when one is only able to divorce his wife if she agrees, there is no need for a kesubah. If so, nowadays in our communities when we don’t allow people to divorce against the will of the wife due to the cherem [ban] of Rabbeinu Gershom, we should technically be more lenient with writing a kesubah, however, the custom is not like this, and one shouldn’t change”.
What does it say in siman 177? Siman 177 discusses a case when a man forcefully forces himself upon a besulah [unmarried women]. The halachah is, that if a man does such a thing, if the woman wants to marry him, he must marry her. If the woman wants to marry him, then even if she is blind, deaf etc. he must marry her. Not only must he marry her, he is not allowed to give her a get, unless she agrees. Even if he divorces her it doesn’t help and they must remarry. The reason behind the kesubah is “in order that it shouldn’t be too easy for the husband to send away his wife”, in this case, however, the husband isn’t allowed to divorce his wife whatever happens, therefore, there is no need for a kesubah. We see that when it is impossible for a man to divorce his wife, there is no need for a kesubah.
The Rema in our siman (66) says, nowadays there is a cherem of Rabbeinu Gershom, and one is not allowed to divorce his wife against her will, therefore, nowadays as well, strictly speaking there is no need for a kesubah. However, the custom is we do write a kesubah, therefore, one shouldn’t change from the custom.
The Achronim (Beis Shmuel 11, Chelkas Mechokek 18, Gra 17 and others) all ask, that there is no comparison between the two cases. In siman 177, even if the husband divorces his wife, it doesn’t help and he must take her back. In our case, however, if one violates the cherem of Rabbeinu Gershom and gives his wife a get against her will, bedieved it works?
The Derech HaMelech (cited in Otzar HaPoskim) offers suggests a peshat to explain the Rema:
There is a concept in halachah that: אין בית דין יכול לבטל דברי בית דין של חבירו אא"כ גדול ממנו בחכמה ובמנין – “One Beis Din can’t cancel an enactment made by a previous Beis Din, unless it is bigger than it, in terms of wisdom and number”. A Beis Din of a later generation can’t cancel something enacted by a Beis Din from a previous generation. However, there are two types of takonos [enactments] that can be made. Some takonos are made, that no matter what, the takonah still applies, and some takonos are enacted due to specific reasoning. For example, there is a halachah that one isn’t allowed to drink from a cup of water that was left uncovered, as we are worried that a snake may have gone into the drink and left some poison. Tosfos in Beitzah (and in a few other places) writes, that nowadays we don’t have snakes leaving their poison around, therefore, this halachah no longer applies. The takonah of not drinking uncovered water was based on a reason, and now that the reason no longer applies, the takonah no longer applies, and a subsequent Beis Din is able to cancel the takonah made by a previous Beis Din. However, some takonas are absolute takonas, and apply no matter what, on such takonas we say that “A Beis Din of a later generation can’t cancel something enacted by a Beis Din from a previous generation”.
The Derech HaMelech explains, that the Rema is trying to prove which type of takonah the writing of a kesubah fits into. Is it an absolute takonah that applies no matter what, or is it a takonah enacted for a specific reason. The Rema proves from siman 177, that it is the second type of takonah. It was enacted to make it more difficult for people to divorce their wives, and we find that when the reason isn’t applicable (i.e. in a case when one isn’t allowed to divorce his wife) it doesn’t apply. Being as it is the second type of takonah, nowadays that we have a cherem of Rabbeinu Gershom that one can’t divorce his wife against her will, then strictly speaking there should be no need to write a kesubah. However, the Rema concludes that nevertheless, the custom is to write one and one shouldn’t change from the custom.
Where Should the Kesubah be Kept?
A woman doesn’t have to constantly have the kesubah in her possession. She may leave it in a guarded place at home, give it to her mother, or give it to a friend, however, it must in a place that she knows is safe, and that she can access if she would need to.
It’s very common for newly married kallas to leave their kesubah with their parents. This can be very beneficial, if there is a large tosefes kesubah [an extra amount of money, the chosan promises to give if they get divorced, above and beyond what is strictly required] and the kallah is scared that the chosan may want to erase it from the kesubah. Another benefit is, that new couples often move around a lot, and it’s likely to get lost. However, generally we aren’t worried that the chosan will rub out the tosefes kesubah and once a newly married couple settles down, it is certainly more beneficial for the wife to keep the kesubah at home, as people generally look after their own things better than anyone else. If it stays floating around her parents’ house for too long, it’s likely that it may end up getting lost (or thrown out in the Pesach cleaning).
However, certainly on the night of the chasunah, it’s a good idea for the mother to look after the kesubah, as there is a lot going through the kallah’s mind, and the more we can take off it the better. There are countless stories of kallah’s leaving their kesubah in the yichud room, or in the hall. If the mother takes the kesubah and looks after it, it’s less likely to get lost, and she can either bring it to the kallah after the dinner, or later on during the week of sheva berachos.
The Shu”t Rashbash (son of the Tashbatz, siman 320) was asked if a woman may leave her kesubah with her husband and he answers: “It seems that it’s not a good thing to do, as the whole purpose of the kesubah is to make it make it more difficult for a husband to divorce his wife, therefore, they said that it’s forbidden to stay with one’s wife without a kesubah even one hour ... if the kesubah is in the husbands property, if he gets angry, he will simply tear it up, and it will be very easy for him to divorce his wife ... therefore, in my opinion it shouldn’t be left in the husbands property”.
R’ Chaim Pilagi (Yefeh L’Lev, Even HaEzer 66:3) writes: “If the kesubah is amongst the woman’s possessions, and her husband is living together with her, what does it help? It’s equivalent to keeping it amongst his possessions, as he can simply take it and tear it up if he wants. Therefore, he brings a minhag that the kesubah is given to a relative of the wife who she trusts. This is the minhag of many Sephardim and they give their keusbah to their mother to watch.”
R’ Moshe Feinstein (Igros Moshe, Even HaEzer 3:26) discusses the above in a Teshuvah and he writes: The wife should look after the kesubah and it should be kept together in a place where she keeps her belongings, as it is her document. If she trusts her husband to look after the kesubah for her, and she trusts he will return it if she wants - even in a situation where they are getting divorce because they have fallen out with each other, then she may leave it with him. If, however, she trusts him because she thinks that they will never ever get divorced, then it shouldn’t be left with the husband. Even if she thinks they won’t ever get divorced, Chazal are worried otherwise, and since she doesn’t show trust in such a case, she must guard the kesubah herself.
The Mishneh Halachos (9:295) asks: “Which place is there in a house that a woman can hide her kesubah from her husband?” and he writes: “Therefore, she can leave it somewhere they both have access to, and we aren’t worried that the husband will argue ‘I have already paid’, as no normal person pays the kesubah before giving a get”.
A Lost Kesubah
Every so often, it is worthwhile checking that the kesubah is where it is supposed to be. There are countless stories of people cleaning for the Pesach and the like, and they end up throwing lots of old paper and documents into the garbage, and they end up accidentally throwing out the kesubah as well.
If the kesubah gets lost, and after a long hard search it is nowhere to be found, it is forbidden for a husband and wife to live together in the same house until a new kesubah is written. Or until they do at least one of the following eitzas [solutions] that we will bring below. Therefore, it is of upmost importance that a rov who deals with these inyonim be consulted. The rov will arrange for them a kesubah d’irkasa, which is a special type of kesubah given to replace an old kesubah, this kesubah contains a special nussach [text]. Just like the original kesubah needs two witnesses to sign on it, this one does as well, however, there is no need for them to be the same witnesses.
What If It’s Shabbos?
If it comes to one’s realization on Shabbos that his kesubah is lost (and one can’t write), or it is very late at night and there is no rov around who can be consulted, there are various other eitzas that may be done:
The Shulchan Aruch (Even HaEzer 66:2) writes: “One should give his wife some moveable items (i.e. furniture) worth the amount of the kesubah, and he should accept liability if these items get lost or depreciate in value”.
The Be’er Heitev (s.k 4) quotes the Teshuvas Rema who writes: “It’s ok to set aside for her a specific piece of land.” This must be done using a form of kinyan which works, such as a kinyan sudar [a type of acquisition, which is performed by picking up a cloth].
A second eitzah is the Shulchan Aruch (Even HaEzer 66:1, see Rambam Hilchos Ishus 10:9), that the husband should find witnesses and say to them that he has lost his kesubah, and the witnesses should perform a kinyan to show that they agree that he is obligated to pay the amount of the kesubah. However, the Rema writes that this should only be done under pressing circumstances, and as soon as a new kesubah can be written, it should be. The Bach is stringent altogether and maintains that even under pressing circumstances it shouldn’t be done. Therefore, the Chelkas Mechokek and Beis Shmuel say, it’s better to do the first option of giving moveable items or setting aside land. If, however, this is not possible, witnesses may be used.
If the kesubah gets lost not long after the chasunah, then it would seem that the best thing to do is to get the original witnesses that were used at the wedding, and if they remember all the details of the original kesubah, then they can just re-write the original kesubah, with the same date as the original one and there is no need for the special kesubah d’irkasa. However, the husband and wife can’t just do this in front of the two witnesses, they must do it in front of a Beis Din, Beis Din should write the kesubah and then the witnesses may sign.
Being Careful
In light of all the above, before the chosan and kallah return home after the wedding, they should make sure to remember to bring the kesubah, or at least make sure it’s somewhere safe, i.e. with the mother of the kallah. There have been many stories, where the kesubah has been left in the hall, and has been swept up and thrown out with the rest of the garbage. If the chosan and kallah reach their new home, and they realize the kesubah is gone, and they have suspicion that it is now lost, it may very well be that they can’t live together, and they should stay on the street all night, or at least they shouldn’t be inside the same house together, if they don’t know the above eitzas.
(Nowadays, there are rabbonim available around the clock to answer shailos, a chosan should have some of these rabbonim’s numbers saved on his phone, just in case an emergency shailah arises in the middle of the night.)
A Kesubah that Has Mistakes
Sometimes, even if one doesn’t lose the kesubah, it may get torn, rubbed out, and sometimes, it may even have a mistake. It could also happen, that they realize after the chasunah that one of the witnesses is disqualified as being a witness, either because he has done certain aveiros, or because it turns out that he is related. In these cases, as well, there is a special kesubah to write. If one is faced with such a shailah, he should speak to a rov who is an expert in the field. It’s important to know, not every tear, or mistake disqualifies the kesubah, and it’s important to ascertain that the kesubah is truly disqualified before arranging the writing of a new one.
What Happens if the Original Kesubah Turns Up?
If after a new kesubah is written the original kesubah is found, one of them must be ripped up, as one isn’t allowed to have in his possession two kosher kesubos. Ideally, the first one should be ripped up and not the second, as once the second kesubah is written, the first kesubah becomes nullified. If, however, the first kesubah is written with fancy writing, and has special engravings and pictures, and it’s a shame to tear it, there are those that are lenient and allow keeping the first one. In such a case a shailah should be asked (see the sefer Kesubah K’Hilchosah, Perek 12, and Teshuvos at the back of the sefer).
May One Rely on The Rabbanut’s Copy of the Kesubah?
Nowadays, the Rabbanut HaReishis L’Yisroel require that a couple that gets married in Eretz Yisroel must provide them with a copy of the kesubah. There poskim discuss if one may rely on this kesubah in cases of great need. The Shulchan Aruch (Choshen Mishpot 62:62) writes: “A document which witnesses signed, not for the sake of it being given over to the owner, but for memories sake, is not considered a document”. Therefore, it would seem that a kesubah signed and given over to the Rabbanut is not really considered a kesubah.
In the sefer Kesubah K’Hilchosah they bring a Teshuvah from R’ Elyashiv who writes: “Cholilah to rely on the second kesubah in regard to staying together with one’s wife. It is forbidden to do so. If one does it comes out that he has two kesubos and one is not allowed to have two kesubos. One should write on the copy of the kesubah, that ‘this is only a copy’”.
