[Avodah] Community property (was: Halachic who is right)

[Zev Sero]

Chana Luntz wrote:

> Note that, in a similar vein, if Devorah is indeed the one paying for
> Chaim ben Zundel, then, after the marriage has occurred, unless they
> have stipulated differently from most couples, in fact she is likely to
> end up paying Chaim ben Zundel with money that is legally Yehoshua's.
> Now if he is not deemed to have consented, then arguably the money she
> is using to pay Chaim ben Zundel can be considered stolen money (this is
> why baalei tzedaka are supposed to be careful about only taking a small
> amount from a married woman, because a man is deemed to consent to his
> wife giving small amounts of tzedaka, but they cannot know about and may
> not necessarily consent to larger amounts).

I wonder about this.  This was the din in the times of the gemara, when
the husband owned all of his earnings, and merely had an obligation to
provide his wife with her needs, according to their station in life.
But nowadays, at least at the Ashkenazi weddings which I have seen, there
is a shtar tena'im, which stipulates that "veyishletun benichsehon shaveh
beshaveh" -- they will control their property equally.  Does this not
change the din you are quoting?  If all the combined assets of the couple
are community property, then she has as much right as he does to give
tzedakah, and she has as much right to buy him a present as he does to
buy her one.

OTOH, as I have cynically noted at many a wedding, the tena'im are
signed by, and purport to obligate, not the chatan and kallah but
their fathers.  The fathers agree that their children will marry
at a date and place to be determined, and what each will provide for
the couple.  The couple themselves don't promise anything, and are
surely not bound by their fathers' promises.  At the time this form
was originally written, the custom was for tena'im to be agreed on
by the fathers when the couple were still minors, often 2 or 3 years
old, and unable to accept any obligations; when they were ready to
get married they were by definition adults, and had every right to
refuse the shidduch.  By the same token, just because the fathers
agree that all the couple's property should be controlled by both
of them equally, that doesn't obligate the spouse who earns most of
the money to agree to this.

OTGH, if they are aware of the tenai at the time that they go to the
chupah (which they must be, since nowadays it is signed and read
just a few minutes earlier), and they don't explicitly renounce
it, then they can be assumed to have agreed to it, just as they have
obviously agreed to to go along with the shidduch itself.  So we're
back to my theory that the din you have quoted does not apply nowadays,
at least to those couples at whose wedding these tena'im were made.

There there is dina demalchuta, which differs from jurisdiction to
jurisdiction.  Perhaps, just as "kol dimekadesh ada'ata derabbanan
mekadesh", so also everybody who gets married assumes that the actual
way their financial arrangements will work will be in accord with the
local law, and therefore everyone can be presumed to have agreed to
this unless they explicitly say otherwise.



-- 
Zev Sero               Something has gone seriously awry with this Court's
zev at sero.name          interpretation of the Constitution.
                       	                          - Clarence Thomas