The Lost Or Relinquished Kesubah
‘A Couple May Not Live Even One Moment Without a Kesubah’
(Bava Kamma 89a)
Upon marriage, a man is required to give his wife a kesubah (a marriage contract) obligating him for a specific sum of money payable to her, either upon his death or their divorce.
Our sages (Kesuboth 10b) fixed the amount of this indebtedness as 200 zuz for a maiden, and 100 zuz for a widow.
Our Gemara explains the reason for the indebtedness of such a large sum as being so that one be deterred from divorcing in haste.
Indeed, the halacha follows R. Meir on our daf, who rules that it is forbidden for a man to live with his wife if she does not have a kesubah in her possession for the above-mentioned amounts. This prohibition applies even in the event the wife forgoes her husband’s kesubah obligation (one example is where she is an independently wealthy woman).
R. Meir (Kesuboth 57a) obviously goes even further; he forbids their continued cohabitation in the event she lost her kesubah.
Watch Out
The Mishna (87a) states that it is a misfortune for one to be injured by a married woman because the aggrieved party is unable to collect timely payment. He must wait either until she is widowed or divorced, and then collect the damages from the proceeds of her kesubah.
When He’s The Victim
The Gemara (89b) cites a tosefta (Bava Kamma 9:8). What if the injured party is her husband? He, too, cannot collect timely payment for any sustained damages. (He, too, will get paid only, at a later date, in the event they get divorced.) If the damages do not exceed the amount owed to her for her kesubah payment and should he divorce her, the husband may withhold that sum from the kesubah obligation as his recompense.
Catch 22
Meiri (ad loc.) cites authorities who maintain that where a woman injured her own husband, resulting in 200 zuz damage (or 100 zuz if that is the value of her kesubah), they are no longer allowed to remain together. Their reasoning is that since the husband may withhold her kesubah, the kesubah’s deterrent value against divorce in haste is no longer operational.
Not So Simple
Meiri (ad loc.) cites other authorities who disagree. They maintain that since he can only collect his damages in the event they divorce, he must wait until such time. Now, since beth din will first obligate him to pay the kesubah before deciding her obligation to him, he will always question whether he will receive a favorable ruling in the matter. Thus, the doubt itself serves as a sufficient deterrent from divorcing in haste.
Rabbeinu Gershom’s Stringency Serves as a Leniency
Rema (Even HaEzer 66:3) offers the reason for our leniency in this matter, as nowadays the cherem (ban) of Rabbeinu Gershom forbids a man from divorcing his wife against her will.
Thus, even where the kesubah was lost, the couple may still remain together. Nevertheless, he concludes that since the custom is to rewrite the kesubah we require such to be done without delay, even today.
