MAINTENANCE


MAINTENANCE
MAINTENANCE (Heb. מְזוֹנוֹת, mezonot), generally speaking, the supply of all the necessaries of the party entitled thereto, i.e., not only food, but also matters such as medical expenses, raiment, lodging, etc. (Sh. Ar., EH 73:7; see husband and wife ). When, however, the maintenance obligation is based on a personal undertaking (see below) and not on the operation of law, it will not cover raiment and perhaps not even medical expenses, unless the contrary is indicated by the terms of the undertaking (Sh. Ar., EH 114:12; Rema, ḤM 60:3; Siftei Kohen thereto n. 14). The liability of maintenance exists generally by virtue of law, but in the absence of any legal duty it may also be based on a voluntary undertaking (e.g., by the husband toward his wife's daughter by a previous marriage). Even though it is normally for an unfixed amount, such an undertaking will be binding and be governed by the general law of obligations (Sh. Ar., ḤM 60:2, contrary to the opinion of Yad, Meḥirah 11:6; see also contract ; Obligations, Law of ). The liability of maintenance by virtue of law is imposed on (1) a husband toward his wife; (2) a father toward his small children; and (3) the heirs of the deceased toward his widow. A divorced wife is not entitled to maintenance from her former husband (Sh. Ar., EH 82:6; see divorce ), nor, generally speaking, a betrothed woman from the bridegroom (Sh. Ar., EH 55:4 and Rema thereto). Only maintenance between husband and wife, as a liability by virtue of law, will be discussed below (see also widow ; parent and child ). -Scope of the Maintenance Obligation The husband's duty to maintain his wife is one of the duties imposed on him by virtue of his marriage as obligatio ex lege (Yad, Ishut 12:2; Sh. Ar., EH 69:2). He has to provide her with at least the minimal needs for her sustenance in accordance with local custom and social standards (Yad, Ishut 12:10; Sh. Ar., EH 70:3). In addition and subject to the aforesaid, the wife's right to maintenance is governed by the rule that she "goes up with him but does not go down with him" (Ket. 61a; Tur, EH 70), i.e., the wife, regardless of the standard of living she enjoyed prior to the marriage, is entitled to a standard of living which matches that of her husband and to be maintained in accordance with his means and social standing. At the same time, she is not obliged to suffer having her standard of living reduced to one below that which she enjoyed prior to her marriage, at any rate not as compared with the standard of living customary in her paternal home with regard to family members backed by means similar to those available to her husband, even if he should choose a lower standard of living than he can afford (Yad, Ishut 12:11; Sh. Ar., EH 70:1, 3 and Ḥelkat Meḥokek thereto n. 1). In addition to providing for all the domestic needs of the common household and as part of his duty of maintenance in its wider sense, the husband must give his wife a weekly cash amount for her personal expenses, again in accordance with their standard of living and social custom (Sh. Ar., EH 70:3; Ḥelkat Meḥokek thereto n. 7). In return for this obligation, the husband is entitled to his wife's "surplus handiwork," i.e., to her earnings from work done beyond the call of her legal duty toward him (Ma'aseh Yadeha). The said obligation being imposed on the husband as part of his duty to maintain his wife, she may, of her own choice, waive her right to the weekly allowance in order to retain for herself such surplus earnings, just as she may waive her maintenance in order to acquire for herself the proceeds of her handiwork (Ḥelkat Meḥokek loc. cit.). The unspent balance of the money given the wife for her maintenance belongs to her husband, since he is only required to give her an amount sufficient for her needs (Ket. 65b; Yad, Ishut 12:13; Pitḥei Teshuvah, EH 70 n. 1). However, if such balance results from the wife's spending less than she requires for her own needs, it belongs to herself; she need not invest the amount of it and if she should do so, the fruits of such investment would belong to her alone (see dowry ). Another opinion is that money given by the husband for his wife's maintenance always remains his own, except insofar as she actually expends it on the household or on her own maintenance, and therefore any balance, even if saved, belongs to him (see Rema, EH 70:3; Pitḥei Teshuvah, EH 70 n. 1; PDR 2:229 and 289). The wife's right to be maintained in the manner described above is independent of the fact that she may be able to maintain herself out of her own property and the fact that her husband may be in financial difficulties. She will accordingly not be obliged to sell her property or to use fruits thereof, to which her husband has no right, in order to facilitate his fulfillment of his obligation to maintain her, since he has undertaken the obligation on the marriage and it is also expressed in the ketubbah deed in the phrase, "I shall work and support you" (see below, Sh. Ar., loc. cit. Pitḥei Teshuvah, EH 70 n. 2; PDR 1:97, 101f.).   -Separated Parties In general, the husband is only obliged to maintain his wife as long as she lives with him or, at any rate, if he is not responsible for the fact that they are separated (Rema, EH 70:12). Hence in the case of separation of the parties, it is necessary to establish which of them has left the common home. WHEN THE HUSBAND LEAVES THE HOME In principle the wife's right is not affected: "She was given to live and not to suffer pain" (Ket. 61a) and the husband remains responsible for her maintenance (Mordekhai, Ket. no. 273). To frustrate her claim, the husband must prove a lawful reason for his absence and refusal to maintain her, e.g., her responsibility for a quarrel justifying his departure (Rema, EH 70:12). However, even in circumstances where the husband is responsible for maintaining his wife despite their separation, it will nevertheless be presumed that he has left her with sufficient means to support herself for a reasonable period during his absence and therefore, in general, she will not be awarded maintenance during the first three months following his departure (Ket. 107a; Sh. Ar., EH 70:5). For the wife to succeed in a claim brought within this period, she must prove that her husband has left her without any means at all, or will have to rebut the above assumption in some other manner, e.g., by proving that her husband left the home as a result of a quarrel or with the intention of returning after a short interval but for some reason failed to do so (Rema, EH 70:12; Beit Shemu'el 70 n. 11; Ḥut ha-Meshullash, 1:6, 4). The husband is not entitled to demand that his wife should work and support herself out of her earnings during his absence unless she has expressly or by implication consented to do this (Yad, Ishut 12:20; Maggid Mishneh thereto; Sh. Ar., EH 70:9; Ḥelkat Meḥokek 70 n. 33). This is so regardless of whether or not she has been accustomed to working prior to his departure and handing over her earnings to her husband, according to law. The court will not of its own initiative investigate the matter of the wife's earnings from her own handiwork, but will take this into account only if it emerges out of the wife's own arguments. However, if after his return the husband can prove that the wife has been working and earning during his absence, he will not be obliged to repay a loan his wife has taken for her maintenance (see below), to the extent that he proves that she was able to support herself from such earnings during his absence. In this event he will similarly be entitled to demand that she refund to him all amounts she has recovered out of his property for the purposes of her maintenance (Yad, Ishut 12:16; Sh. Ar., EH 70:5). When the wife is entitled to maintenance but her husband leaves her without sufficient means and she does not maintain herself out of her own earnings, she has the right to borrow for her maintenance and to hold her husband liable for the repayment of such a loan (Ket. 107b; Yad, Ishut 12:19; Sh. Ar., EH 70:8). This is not the case if prior to his departure she was supporting herself by her own efforts and remained silent when he publicly disavowed responsibility for debts she might contract, thus seeming to have consented to this (Rema, EH 70:12; Beit Shemu'el 70 n. 32). The husband's duty to repay such a loan is toward his wife only and he is not directly liable to the creditor. If, however, the wife has no property of her own, or if for any other reason the creditor might have difficulty in recovering from the wife, he may claim repayment of the loan from the husband directly, in terms of the Shi'buda de-Rabbi Nathan (permitting the creditor to recover the debt directly from a third party who owes money to the principal debtor if the creditor has no other means of recovering from the latter (Yad, Ishut 12:19; Rema, EH 70:8). If the wife has sold some of her own property to support herself, she will be entitled to recover from her husband the equivalent of the amount realized, provided that the facts do not demonstrate any waiver of this right on her part, such as an express declaration to this effect made by her before witnesses at the time of the sale, or if at that time there was a suit for divorce pending between the parties. If proof to this effect is forthcoming, the wife will not be entitled to recover anything from her husband since it is presumed that as long as the marriage tie is in existence, she will not do anything which might bring about its complete severance and will therefore also be prepared to waive her pecuniary rights against her husband (Rema, EH 70:8; Beit Shemu'el 70 n. 29; PDR 2:289, 291f.). Whenever the wife is not entitled to a refund of the amounts she has expended, during the period of her husband's absence, the earnings from her handiwork will be loans to her (Rema, EH 70:8). Third parties who of their own accord assist the wife in respect of her maintenance are not entitled to be refunded for their expenditure – neither from the wife since she has not borrowed from them, nor from her husband since he has not instructed them to do so – but they are in the position of one who "has put his money on the horns of a deer" (Rema, EH 70:8; see also unjust enrichment ). If the wife can prove that the assistance was given her in the form of a loan, the question of repayment will be governed by the aforesaid ordinary rules concerning a loan for purposes of the wife's maintenance, even if the assistance was given by her own parents (Mordekhai, Ket. no. 273). WHEN THE WIFE LEAVES THE HOME In principle the husband is not obliged to maintain his wife unless she lives with him (see above). Hence the mere fact of her leaving him, or her refusal to return to him after she has left him lawfully, provides the husband with a prima facie defense against her claim for maintenance, since by living apart from him she precludes herself from carrying out her marital duties, on due fulfillment of which her right to maintenance is dependent. Therefore, to succeed in a claim for maintenance in these circumstances, the wife must discharge the onus of proving facts justifying her absence from the marital home (Rema, EH 70:12; Beit Shemu'el 70 n. 34; PDR 6:33, 52f.). These may arise either from the husband's bad conduct toward her – e.g., his responsibility for a quarrel justifying in law her refusal to continue living   with him together in the marital home (Beit Yosef, EH 70, end; Sh. Ar., EH 70:12) – or from other circumstances which are independent of the husband's blameworthy conduct toward her, such as his refusal to comply with her justified demand to move to another dwelling or to live away from her husband's relatives who cause her distress (see husband and wife ). In general it may be said that any reason sufficient to oblige the husband to grant his wife a divorce will entitle her to claim maintenance from him even though she may have left the home, since the fact that the husband is obliged to grant her a divorce means that he must acquiesce in their living apart; therefore her refusal to live with him entails no breach of her duties toward him. Moreover, by unlawfully withholding a divorce from his wife the husband prevents her from marrying someone else who could maintain her, and there is a rule that a husband who, contrary to law, prevents his wife from marrying another man renders himself liable to maintain her until he grants her a divorce (PDR 1:74, 77–80). If the wife leaves the home on account of a quarrel she has unjustifiably caused, and generally when she has no justifiable reason for living apart from her husband, she will not be entitled to maintenance from him. For other cases in which the wife forfeits her right to maintenance, see husband and wife (S.V. moredet); divorce . -Claim for Maintenance Cannot Be Assigned or Set Off The husband is not entitled to set off against her claim for maintenance any pecuniary claim he may have against his wife, such as one arising from her sale, contrary to law, of her husband's property for purposes of her maintenance during his absence. His duty to maintain his wife means to provide her with the necessities of life with him, i.e., entails responsibility for her daily needs with regard to food, raiment, lodging, etc. This affords the wife a right against which pecuniary debts cannot be set off, since those two differ in their legal nature and her daily needs cannot be satisfied by a reduction of the debt she owes him (PDR 1:333, 338; 2:97, 99). If, however, the wife's claim is based on a right whose legal nature is purely pecuniary, e.g., her claim for repayment of a loan she has taken for her maintenance, there will be no bar to the husband setting off against such claim any other pecuniary claim he may have against her, if, for instance, she is indebted to him for a loan she obtained from him for the purpose of supporting her relatives – he may also set off such pecuniary claim against her claim with regard to payment of her ketubbah at the time of their divorce (see PDR 1 loc. cit.). The same reason that entitles the wife to receive actual payment of her maintenance prevents her from assigning this right to others (Beit Shemu'el 93 n. 18). -Arrear Maintenance If the wife, although entitled to maintenance, does not bring an action for it in the court, she will be unable to claim maintenance for any period preceding the date of bringing her suit, since it will be presumed that she preferred to suffer rather than unfold her troubles before the court and her silence will therefore be interpreted as a waiver of her right for such a period (Yad, Ishut 12:22; Sh. Ar., EH 70:11). This presumption may be rebutted by evidence showing that she insisted on her rights, e.g., that she demanded her maintenance from her husband and refrained from instituting action only because of his promise to comply without recourse to the court (Rema, EH 80:18; Beit Shemu'el 80 n. 27); institution of action has the same effect for any period thereafter even if a considerable amount of time elapses before judgment is given (Rema 70:5; Beit Shemu'el 70 n. 12; see also limitation of actions ). -Non-payment of Maintenance: Consequences On the husband's failure to maintain his wife in the manner to which she is entitled, the court – at her instance – will order him to do so, whether he refuses payment although he has the means to meet it or whether he lacks the means because he does not work although he is able to work and earn this amount. In other words, the husband will be ordered to pay maintenance in accordance with his potential working and earning abilities, and not necessarily his actual earnings, for he has undertaken in the ketubbah to work and to maintain his wife (Rema, EH 70:3; Ḥelkat Meḥokek 70 n. 12). If he has sufficient for his own needs only for a single day, he must still share this with his wife since he is liable to maintain her "with himself" (Rema, EH 70:3). On the other hand, as he has to maintain her "with him" only, i.e., to no greater extent than he is able in respect of himself, he will be exempt from maintaining her if he cannot afford it because he is in a position of utter poverty and unable to work and earn for reasons beyond his control (Pitḥei Teshuvah, EH 70 n. 2; Perishah, ḤM 97 n. 41). For the same reason, inability to pay maintenance is excused on grounds of the husband's need to repay regular debts, these taking preference over the former (ibid.). If the wife should not wish to content herself with a claim for maintenance, she may possibly be entitled to demand a divorce. -In the State of Israel Maintenance for the wife is a matter of personal status within the meaning of article 51 of the Palestine Order in Council, 1922, and is therefore governed by Jewish law (sec. 51 thereof) even when claimed in a civil court by virtue of section 4, Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713 – 1953. So far as a Jewish wife is concerned, the above position was left unchanged by the Family Law Amendment Maintenance Law, 5719 – 1959, which expressly provides that the question of her maintenance shall be governed solely by Jewish law (sec. 2; see Supr. PD 15 (1961), 1056, 1058). If the husband refuses to comply with a judgment of the court for the payment of maintenance, he may be imprisoned for a period not exceeding 21 days for every unpaid installment (Executive Law 5727 – 1967, sec. 70ff.); see also imprisonment for debt . (Ben-Zion (Benno) Schereschewsky)   -Maintenance (Mezonot) in the State of Israel Maintenance payments in Israel are determined in accordance with Jewish law, as stipulated in Section 2 of the Family Law (Maintenance) Amendment Law, 5719 – 1959. In this respect, the position described above remained unchanged. This update will deal with a number of issues in which new arrangements were established in Israeli law, in both the rabbinical courts and the general courts. MAINTENANCE UNDER THE LAW OF MEUKEVET MEḤAMATO (A WOMAN PREVENTED FROM REMARRYING OWING TO HER HUSBAND'S REFUSAL TO GIVE HER A GET) In Jewish law – and in Israeli law, too, which applies Jewish law – the husband's obligation to pay maintenance derives from the fact of the marriage and the husband's undertaking in the ketubbah to provide for his wife – an obligation that terminates upon divorce. Accordingly, where the husband is obligated to grant a divorce – and refuses – the question arises as to how this refusal affects his maintenance obligation. Under Jewish law, even if the couple do not live together, the husband remains liable for maintenance, because his refusal to grant his wife a get prevents her from marrying someone else, thereby denying her maintenance from a potential husband. Furthermore, in such circumstances a different set of rules applies. By law, the husband owns the wife's handiwork (ma'aseh yadeha) – the fruits of his wife's labor – and practically, such fruits (e.g., income) are deducted from her maintenance. But when the maintenance obligation is imposed by reason of the husband's refusal to give a get, the latter is not entitled to deduct her income. The explanation is that the husband's ownership of his wife's handiwork against his obligation to support his wife derives from the consideration of ill-feeling (eivah). In other words – it was instituted in the interests of domestic peace (shelom bayit) between the spouses (see husband and wife ). However, when the husband refuses to grant a get to the wife, there is no justification for entitling him to her earnings, because there is no longer an interest in fostering domestic harmony, but rather in terminating the marriage with a get. The Israeli Supreme Court thus ruled that a maintenance award based on the wife's inability to marry because of her husband is only applicable after the rabbinical court has ruled on divorce, in one of the following manners: forcing or obligating the husband to grant a get, as well as the more "moderate" case in which the court orders the parties to divorce. This principle was established by the Rabbinical Court of Appeals (dayyanim A. Goldschmidt, S. Yisraeli, J. Kapah; Appeal 205/5733, PDR 10, 294), and was adopted in a ruling of the Supreme Court (comments of President, M. Shamgar, CA 792/82, Nuni v. Nuni, 40 (3) PD 744, following Justice M. Elon, HC 644/79 Gutman v. the Rabbinical Court, 34 (1) PD 443, and the comments of Judge Y. Cahn in HC 661/77 Haber v. the Rabbinical Court, 32 (3) PD 324). PROCEDURES In 1975, a chapter dealing with maintenance was added to the Civil Procedure Regulations – Chapter 23 (3) of the Civil Procedure Regulations, 5723 – 1963. Its central innovation was the requirement that every statement of claim or defense dealing with maintenance be supported by an affidavit. In addition, a detailed specification had to be submitted as an appendix to any claim or defense, detailing the complete assets and income of each party (including documentation, such as wage slips for an entire year), as well as the sums that, in that party's opinion, would meet the maintenance needs of the (rival) parties. Under these regulations, the District Court (which had jurisdiction over maintenance cases at that time) conducted an initial enquiry based on the material submitted, fixing temporary maintenance accordingly, without having to conduct a separate proceeding. These regulations also established sanctions for failure to comply with the regulations, by not attaching substantiating documentation, concealing particulars, or otherwise contravening the regulations. The sanctions ranged from orders to comply with the regulations, to the possibility of accepting the other party's claims (see, e.g., the ruling of the Jerusalem District Court, AM 470/03 Anon. v. Anon.; AM 789/05 AD v. AY). The Civil Procedure Regulations 5744 – 1984 incorporated the same maintenance provisions in Chapter 21 (Regulations 259–266). In 1995 the Family Courts Law (see family Courts Law, 5755 – 1995) was adopted and the powers of civil instances to adjudicate maintenance cases were transferred to the Family Court. Maintenance suits are now governed by the civil procedure regulations applying to all claims adjudicated in the Family Courts (Part 3.1 of the Civil Procedure Regulations, 5744 – 1984; Regulation 258A –258GG). Apparently, the enactment of procedure related regulations in the general court system, including with respect to the Family Court, led to the enactment of the new regulations governing rabbinical courts procedure (1993). Regulation 33 of these regulations determined that a maintenance claim must be submitted together with the form indicated in Regulation 211, and the defendant is instructed to follow suit when submitting his statement of defense. Pursuant to Regulation 211, special forms were prepared for maintenance claims in the rabbinical courts, in which, as part of the specification of data, the husband is required to declare the sums of maintenance paid prior to submission of the claim together with particulars of his income and property. A number of rulings have determined that failure to attach the specification of data form, or to properly complete it, may be taken into account when assessing the sincerity of the "inclusion" of a maintenance claim in a divorce suit in the rabbinical courts (see FF (Tel Aviv) 16981/96 Dahan v. Dahan; on the inclusion of maintenance with a divorce case, see bet din Rabbani – Rabbinical Court in Israel). ENFORCEMENT OF MAINTENANCE PAYMENT The State of Israel enforced court maintenance awards by means of the Execution Office, pursuant to the provisions of the Execution Law, 5727 – 1967. This mechanism likewise enforces maintenance awards of rabbinical courts (see under rabbinical court ; execution , Civil). Maintenance differs, in principle, from any other monetary   ruling. In a regular civil file, the court is only required to consider the question of whether the defendant is liable or not; the defendant's financial capacity to pay the sum of the claim does not affect his liability. On the other hand, liability for maintenance, in principle, is based on the financial capacity and situation of the liable party, and the sum of maintenance is fixed in accordance with a number of parameters, inter alia, the liable parties' financial ability to pay a particular sum of monthly maintenance (after he has borne his own expenses). This distinction affects the discretion exercised by the head of the Execution Office in determining how a debt is paid. Regarding a regular debt, the head of the Execution Office may, and is often compelled to, consider the debtor's financial situation, in view of which he determines whether he should pay the debt in one payment or in installments. Regarding a maintenance ruling, the head of the Execution Office does not have such discretion and must implement the court's ruling literally, inasmuch as the judicial forum that ruled on maintenance (a rabbinical court or the family court) has already considered this data and the sum of the maintenance ruling was determined on the basis of that data. Another difference between collection of a financial debt as distinct from a maintenance debt relates to the use of imprisonment. The Execution Law and Supreme Court rulings restricted the cases in which imprisonment can be imposed against a person who fails to discharge his civil debt (see the detailed ruling of Deputy President Judge M. Elon in HC 5304/92, Perach v. the Minister of Justice, 47 (4) PD 715; see in detail: execution , Civil). In contrast, Section 74 of the Execution Law determines that regarding a maintenance debt, the head of the Execution Office may, at the request of the person entitled to maintenance, issue an arrest warrant against the debtor, even without investigating his financial ability (one of the minimal terms required for imprisonment with respect to a civil debt). The Supreme Court emphasized the difference between collection of a maintenance debt and collection of a regular civil debt: the maintenance award is fixed by a judicial instance (after having consideration for the liable party's financial situation); the dependency of the persons entitled to the maintenance on the maintenance payments for their sustenance; the fact that a maintenance ruling is not final and the debtor may apply to a rabbinical court or the family court to alter the amount of the maintenance if there has been a change of circumstances justifying its alteration (p. 731 of the Perach decision). In addition, a special social welfare law was enacted in Israel enabling receipt of maintenance payments through the National Insurance Institute (The Maintenance (Assurance of Payment) Law, 5732 – 1972). According to this law, a person with a maintenance ruling in his favor (such as a spouse or child) may present a copy of the judgment to the National Insurance Institute and the latter will pay the maintenance sum on a monthly basis (subject to a statutory ceiling; see Section 4 of the law). The National Insurance Institute acts on behalf of the person entitled to maintenance, and concurrently initiates execution proceedings against the maintenance debtor. In this way, those entitled to maintenance receive the monthly payment with dignity and without tension or pressure in the event of the maintenance debtor's failure to pay. This law is particularly effective when the maintenance debtor changes addresses and cannot be traced or absconds abroad. The difference between the sum awarded as maintenance by the Court (either Rabbinical or Family Court) and the sum actually paid by the National Insurance Institute, may be collected by the entitled party by opening a file in the Execution Office (see Section 10 of the law; AM 789/05 AD v. AY). (Moshe Drori (2nd ed.) -BIBLIOGRAPHY: Gulak, Yesodei, 1 (1922), 37; 2 (1922), 68–70; 3 (1922), 37–39; Gulak, Oẓar, 149–58; ET, 1 (19513), 324f.; 4 (1952), 80–83, 91f.; 6 (1954), 656; Regional Rabbinical Court, Tel Aviv, Judgment, in: Ha-Torah ve-ha-Medinah, 9–10 (1957/59), 185–99; B. Cohen, in: PAAJR, 20 (1951), 135–234; republished in his: Jewish and Roman Law, 1 (1966), 179–278; addenda: ibid., 2 (1966), 775–7; B. Schereschewsky, Dinei Mishpaḥah (19934), 106–33; Elon, Mafte'aḥ, 122f.; idem, Ḥakikah Datit… (1968), 44–46, 60–62; H. Baker, Legal System of Israel (1968), index. ADD. BIBLIOGRAPHY: M. Elon, Ha-Mishpat ha-Ivri (1998), 1:111, 129, 188, 468f., 518, 638, 653; 3:1337, 1392f., 1417, 1476, 1479, 1499f., 1596; idem, Jewish Law (1994), 1:125, 145, 211; 2:571f., 631, 791, 808; 3:1597; 4:1660f., 1687, 1756, 1760, 1784f., 1904; M. Drori, "Sidrei Din Ḥadashim bi-Teviot le-Mezonot," in: Ha-Praklit, 31 (1977), 317–40.

Encyclopedia Judaica. 1971.

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