Introduction
Losing a kesubah (Jewish marriage contract) is more than a technical inconvenience. Jewish law regards the kesubah as an essential component of marriage, and in some situations its loss requires immediate halachic attention.
Before discussing what should be done if a kesubah is lost, it is helpful to understand why the kesubah is so important in the first place. Is it a Torah obligation, or was it instituted by the Sages? Why is a written kesubah necessary if a husband is already legally obligated to support his wife financially? And why did the Sages consider the absence of the document itself to be so significant?
Understanding these principles will make the practical halachos much easier to follow.
Is the Kesubah a Torah Obligation or a Rabbinic Enactment?
The Gemara (Kesubos 10a) discusses whether the obligation of a kesubah is prescribed by the Torah or was instituted by the Sages. Rabban Shimon ben Gamliel maintains that the kesubah of a virgin is Torah-based, deriving it from the verse concerning a seducer: “He shall pay money according to the dowry of virgins” (Shemos 22:16). The Sages maintain that the obligation is rabbinic.
The Gemara then cites another teaching regarding the amount of the kesubah: the Sages enacted that a virgin receive two hundred zuz and a widow received one hundred zuz.
The purpose of the kesubah was to discourage a husband from divorcing his wife hastily, since divorce would require him to pay the amount stipulated in it. Once the Sages instituted the kesubah in cases of divorce, they extended it to widows as well, in order to encourage them to remarry (Tosafos Kesubos 39b, s.v. Ta’ama),).
The Rishonim disagree both about the source of the obligation and the basis of the amount:
- Rambam and Rif: Both the obligation and the amount are rabbinic.
- Rosh: The obligation is rabbinic, but the amount is based on the Torah’s payment for seduction.
- Rabbeinu Tam and the Ri: Both the obligation and the amount are Torah-based. This is reflected in the customary wording, “d’chazi leichi m’deOraisa” — “which is due to you according to Torah law.”
Practically speaking
The Rama (Even HaEzer 66:6) cites the custom of writing “d’chazi leichi m’deOraisa” in the kesubah. Later authorities, however, disagree as to how the Rama should be understood. The Derishah (Even HaEzer 66:14) and the Gra (ad loc. §27) understand him to mean that a virgin’s kesubah is itself a Torah obligation, in accordance with the third opinion above. The Beis Shmuel (ad loc. §14) and the Chelkas Mechokeik (ad loc.), however, maintain that even according to the Rama the obligation remains rabbinic. Rather, the phrase “d’chazi leichi m’deOraisa” refers only to the Torah standard by which the amount is calculated, in accordance with the second opinion above. This seems to be the accepted ruling of the Rama.
The Obligation Exists Even Without a Written Kesubah
The Mishna (Kesubos 51a) teaches:
“If he did not write her a kesubah, a virgin is entitled to two hundred zuz, and a widow to one hundred, because this is a condition established by the Beis Din.”
In other words, even if no kesubah document was ever written, the husband is still obligated to pay his wife the basic kesubah amount. If the marriage ends through divorce or the husband’s death, the Beis Din will require either the husband or his heirs to pay her the amount to which she is entitled.
Why Is a Written Kesubah Necessary?
The Mishna teaches that a husband’s financial obligation exists even if no kesubah was ever written. If so, why did the Sages insist that every marriage be accompanied by a written kesubah?
The answer becomes clear from the historical development of the kesubah.
The Beraisa (Kesubos 82b) explains that the Sages repeatedly strengthened the kesubah because earlier arrangements did not provide sufficient protection. First, the kesubah money was set aside in the woman’s father’s home, and later in the husband’s home. In both cases, however, a husband could too easily end the marriage by telling his wife to take her kesubah and leave.
Shimon ben Shetach therefore instituted that the husband write a kesubah stating that all his property is pledged as security for its payment.
By making all of the husband’s property serve as security for the kesubah, the wife now had much greater assurance that she would be able to collect what she was owed. Instead of relying on a particular sum of money, she had a legal claim against all of his assets.
Thus, although the husband’s financial obligation exists even without a written kesubah, the Sages nevertheless required that it be recorded in a formal legal document. In that document, the husband pledges all of his assets as security for the obligation and then gives the kesubah to his wife. Possessing this document gives her confidence that her rights are protected and that, if necessary, she will be able to collect what she is owed.
Why the Sages Required a Written Kesubah
Although the Sages required that the husband’s kesubah obligation be recorded in a written document, a written document is not the only legal mechanism by which Jewish law creates or secures a monetary obligation.
For example, a person may designate movable property as security for an obligation. Alternatively, he may perform a kinyan (a formal legal act that creates a binding obligation) before witnesses, thereby formally accepting the obligation.
The legal force of such a kinyan stems from the fact that it is performed before witnesses. Because the transaction becomes publicly known, anyone wishing to purchase the debtor’s real property is considered aware that it is already subject to the creditor’s claim. Accordingly, the Shulchan Aruch (Choshen Mishpat 39:1) rules that although collection from property sold to third parties generally requires a written document, a kinyan performed before witnesses has the same legal effect.
Nevertheless, the Sages deliberately chose a written kesubah as the preferred way to secure this obligation. They did so for several reasons:
- To prevent the husband from claiming, “I have already paid the kesubah.” As Rashi explains (Kesubos 57a), although the obligation exists automatically as a tenai Beis Din (a condition established by the rabbinical court), without a written document the husband could still claim that he had already fulfilled it.
- To prevent the husband from later denying that the marriage ever took place. As the Maharam of Rothenburg explains (cited in Hagahos Maimoniyos, Hilchos Ishus 10:9), the husband might move to a place where no one knew him and simply claim, “I was never married to you.”
- To provide the wife with lasting documentary proof of her rights. Even if the witnesses to the original kinyan are no longer alive, the written kesubah continues to serve as legal evidence (see Bach and Taz, Even HaEzer 66; Mishpetei HaKesubah, p. 121).
For these reasons, the Rama (Even HaEzer 66:1) rules that although, according to the Shulchan Aruch, a kinyan performed before witnesses is sufficient to establish the kesubah obligation, one should rely on that arrangement only in extenuating circumstances:
“One should rely on witnesses alone only in extenuating circumstances. As soon as there is an opportunity to prepare a written kesubah, it should be written. Certainly, one should not rely on this arrangement from the outset, and this is how one should rule in practice.”
May a Couple Live Together Without a Kesubah?
Regardless of whether the obligation of the kesubah is of Torah or rabbinic origin, the Tanna’im (Sages of the mishna) disagreed as to whether a husband and wife may continue living together if no valid kesubah is available.
The Gemara (Bava Kamma 89a) teaches that, according to Rabbi Meir, “A man may not remain with his wife for even a single moment without a kesubah.” The Gemara further states that the halachah follows Rabbi Meir about this (Kesubos 57a).
The poskim explain that this prohibition applies even where there is virtually no possibility that the husband would divorce his wife, for example, because of health or financial circumstances.[1]
Likewise, even if the wife waives her right to collect the kesubah, the Gemara (Kesubos 7a, 57a) rules that the husband may not remain with her without one. This raises an important question: Why is living without a kesubah considered so serious?
Why Living Without a Kesubah Is Considered a B’ilas Z’nus
The Gemara (Kesubos 56b) teaches that if a husband reduces the amount of his wife’s kesubah, their marital relations are considered a b’ilas z’nus (a licentious union).
Rashi explains that this is because the wife no longer feels secure that her financial rights are protected.
The reason that the absence of a kesubah causes the relationship to be considered a b’ilas z’nus is further explained by the Ramban (in the responsa attributed to the Rashba, no. 284). Without a valid kesubah, the wife feels that her husband no longer regards her as a true wife, but is already contemplating divorce. In a sense, she becomes a gerushas halev—a wife who has already been divorced in her husband’s heart.
The term b’ilas z’nus in this context should not be misunderstood. It does not refer to a relationship that has the halachic status of z’nus (promiscuity), such as one that would prohibit the woman from marrying a kohen. Rather, the Sages use the term to teach that this does not reflect the Torah’s ideal of marriage. Any marital relationship that departs from that ideal is described as z’nus.[2]
Does the Prohibition Apply to Yichud or Only to Marital Relations?
The Shulchan Aruch (Even HaEzer 66:1) rules:
“It is forbidden for a groom to be alone (yichud) with his bride before writing a kesubah.”
According to the Shulchan Aruch, therefore, the prohibition begins even before the couple has marital relations.
The Rama, however, cites a more lenient opinion:
“Some permit yichud even without a kesubah, provided that they do not have marital relations.”
Accordingly, the Shulchan Aruch understands the prohibition to apply already to yichud, whereas according to the Rama it applies only to marital relations.
Consequently, Ashkenazim who follow the Rama may rely on this more lenient opinion until a replacement kesubah can be prepared.
The practical application of this ruling will be discussed below when we consider what should be done if a kesubah cannot be found.
What Does “Even for One Sha’ah” Mean?
The Gemara states that a husband may not remain with his wife “even for one sha’ah” without a kesubah.
The poskim point out that whenever the Sages use the word sha’ah (“hour”), they do not necessarily mean a literal sixty-minute hour. In many places throughout the Talmud, the word simply means any amount of time, however brief.
Accordingly, the prohibition takes effect immediately. Even a short delay in replacing a missing kesubah should be avoided whenever possible.
When Is a Replacement Kesubah Required? (Kesubah D’Irkesa)
The Gemara (Kesubos 56b–57a) records that when a woman’s kesubah was lost, Rav Yosef ultimately ruled that a new one had to be written immediately. This established the practical halachah that a couple may not continue living together without a valid kesubah.
The Shulchan Aruch (Even HaEzer 66:3) therefore rules:
“If a woman’s kesubah was written but was subsequently lost, or if she waived her right to collect it, a new kesubah must be written, because a husband may not remain with his wife even briefly without a kesubah.”
The replacement kesubah should indicate the reason it is being written. If it replaces a lost kesubah, it should state that it is a replacement for a lost kesubah (kesubah d’irkesa). Likewise, if it replaces an invalid kesubah, it should state that it is a replacement for a kesubah in which an error was discovered (chalaf kesubah d’ishtakach bah ta’usa).[3]
If the Kesubah Is Found to Be Invalid During the Wedding
If, while the kesubah is being read under the chuppah, it is discovered that the document contains an error that renders it invalid, there is no need to interrupt the wedding ceremony.
Instead, the bride and groom should proceed to the cheder yichud (the private room following the ceremony). While they are there, a corrected kesubah should be prepared.
There is no need to perform a new kinyan, since the original kinyan remains valid.
Before entering the cheder yichud, however, the bride should be informed that the original kesubah is being corrected.[4]
If No Kesubah Was Written
In extenuating circumstances, if a kesubah was inadvertently not prepared before the wedding and there is no time to write one immediately, the halachah provides a temporary solution.
Two witnesses may perform a kinyan sudar[5] with the groom, through which he formally accepts the basic kesubah obligation of two hundred zuz. This temporarily permits the couple to begin married life together until a proper kesubah can be prepared.[6]
Ideally, however, the groom should also designate movable property (metaltelin) equal in value to the basic kesubah obligation and formally accept responsibility for it. According to some authorities, this satisfies all opinions until a proper kesubah is written.[7]
What If the Kesubah Simply Cannot Be Found?
Sometimes, immediately after the wedding, the kesubah cannot be located.
In such a case, there is no need to assume that it has been lost permanently. It may simply have been misplaced among the wedding gifts or packed together with other belongings.
Accordingly, one may temporarily rely on the original kinyan alone, even without formally designating movable property. Since there is no clear evidence that the kesubah has actually been lost, there is no need to gather new witnesses or prepare a replacement document before making a reasonable effort to locate the original.[8]
Note: In Israel, the local Rabbinate generally retains a copy of every kesubah in its archives, signed by the witnesses. This copy should be clearly marked as a copy; otherwise, the existence of two identical original documents could create halachic complications. Although an archived copy does not provide the same level of assurance as having the original kesubah in the wife’s possession, some authorities rule that, in extenuating circumstances (b’sha’as hadechak), one may rely on the archived copy until a replacement kesubah can be prepared.[9]
If the Kesubah Appears to Be Lost: Temporary Solutions
Although, as discussed earlier, the Shulchan Aruch maintains that a kinyan performed before witnesses is sufficient to establish the kesubah obligation, the Rama (Even HaEzer 66:1) rules that this may only be relied upon in extenuating circumstances[10]. Many later authorities agree with the Rama that a proper written kesubah should be prepared without delay.[11]
The same applies if the original kesubah is found to be invalid, has become illegible, has been erased, or has been destroyed. If the document has been torn or otherwise damaged, however, this does not necessarily invalidate it. A kesubah that has become worn or torn through ordinary use may still be valid, and the couple should consult a competent rabbi to determine whether a replacement is required.[12]
As noted above, the Rama (Even HaEzer 66:1) permits yichud without a kesubah, provided that the couple refrain from marital relations. Ashkenazim may therefore rely on this leniency temporarily until a replacement kesubah can be prepared.
The Ran offers two reasons for this leniency:
- The prohibition against marital relations without a kesubah is rabbinic in nature.
- Since the wife knows that she presently lacks a valid kesubah, she will not readily consent to marital relations.
For this reason, the Chelkas Mechokeik (ad loc. §6)and the Beis Shmuel write that the wife should be informed that the kesubah is missing before the couple is alone together.
A preferable solution, however, is for the husband to provide temporary security for the kesubah obligation until a replacement document can be prepared. This may be done by designating movable property (metaltelin) as collateral.[13]
If no kinyan or other temporary arrangement has been made, the couple may nevertheless be alone together (yichud), but they may not engage in marital relations until the matter has been resolved.
The Rama (Even HaEzer 66:3) notes that, nowadays, since a husband generally may not divorce his wife against her will because of Rabbeinu Gershom’s enactment, one might have argued that the requirement of a written kesubah should be less stringent. This is based on the Gemara (Kesubos 39b), which teaches that a man who marries the woman he violated (oines) does not require a kesubah, since the Torah forbids him ever to divorce her. The Shulchan Aruch rules accordingly (Even HaEzer 177:3). Nevertheless, the Rama concludes that this is not the accepted practice and that the longstanding custom should not be changed.
The Chelkas Mechokeik (66:18), Beis Shmuel (ad loc. §11),and the Bi’ur HaGra (66:17) explain that the two cases are not comparable. In the case of the oines, the Torah itself prohibits the husband from divorcing his wife (“He may not send her away all his days”). Rabbeinu Gershom’s enactment, however, is only a rabbinic prohibition. Consequently, there remains a concern that the husband may disregard it, and the wife therefore may not feel fully secure that the marriage is protected.[14]
Practical Guidelines
1. If the wife is confident that the kesubah is still in her possession but cannot remember where she placed it, it is not considered lost (Teshuvos V’Hanhagos, ad loc.; Nit’ei Gavriel 33:4; Shevet HaLevi 8:288).
2. If, however, she has searched for the kesubah, cannot find it in its usual place, and has no idea where it is, it is proper to prepare a replacement kesubah (kesubah d’irkesa). Even so, if this occurs at night or under similar circumstances, Pischei Choshen (Kuntres Inyanei Kesubah) writes that there is no need to gather witnesses immediately, particularly if it is still possible that the original kesubah has merely been misplaced rather than actually lost.
3. If the kesubah is definitely lost or destroyed, the procedure below should be followed. If it cannot be carried out, a competent halachic authority should be consulted.[15] (Regarding reliance on the original eidim from the chuppah, see footnote 11.)
4. If it is impossible to prepare a replacement kesubah immediately, the husband may give his wife collateral—such as cash or other property—equal in value to the kesubah, while expressly accepting responsibility for any loss or decrease in its value. Alternatively, he may perform a kinyan before two witnesses, formally accepting all of the obligations of the kesubah.[16]
This temporary arrangement may be relied upon for a few days, during which time a proper replacement kesubah should be prepared without delay.[17]5. If the original kesubah is later found, one of the two documents should be destroyed. The Shulchan Aruch (Even HaEzer 100:14) discusses which document should be destr
[1] Ibid VII, p. 144, based on Tosafos, Bava Kamma 89a, s.v. Kol, citing the Ri.
[2] Ibid., p. 171.
[3] See Sha’arei Nisu’in, ch. 13, note 17.
[4] See Hilchos Eirusin V’Nisu’in, ch. 8 §23, citing R. Shmuel Wosner zt”l; cited as well in Sha’arei Nisu’in, ch. 13, note 19.
[5] A form of kinyan in which a symbolic object is used to create a legally binding obligation.
[6] Shulchan Aruch, Even HaEzer 66:1–2.
[7] Chelkas Mechokeik, Even HaEzer 66:6. See also Chiddushei HaRim, Even HaEzer 66:7, who writes that the husband should expressly accept responsibility for the designated movable property.
[8] See Pischei Choshen, Hilchos Ishus, 10:34.
[9] See Pischei Choshen, Hilchos Ishus, Kuntres HaKesubah; Beis Chasanim, citing R. Shlomo Zalman Auerbach and Nitei Gavriel, Hilchos Nisu’in, ch. 33 §6.
[10] This arrangement cannot be relied upon if the witnesses no longer remember the kinyan or are no longer alive. Rabbi Shmuel Fuerst told me this personally; see also Mishpetei HaKesubah, VII, p. 119. Minchas Asher (II:90) further rules that one cannot rely on the witnesses from the wedding where the original kesubah was written and later lost. The principle of stam kinyan l’kesivah omeid applies only where no kesubah was written. Once the witnesses wrote the original kesubah, they completed their shlichus and cannot write another on the basis of that kinyan.
[11] See also Mishpetei HaKesubah VII, p. 127, who suggests that even according to the Shulchan Aruch, nowadays—when it is the universal and invariable practice to prepare a written kesubah for every marriage—a kinyan alone is no longer sufficient if the kesubah is lost. Rather, a replacement written kesubah is required.
[12] A kesubah that has become worn or torn through ordinary use is not necessarily invalid. See Shulchan Aruch, Choshen Mishpat 52:1; Sema ad loc. §8 (contra the Shach, ad loc. §8). This view is accepted by later authorities (see Pischei Teshuvah, ad loc. §3). Shevet HaLevi (VIII, no. 288 §1) likewise distinguishes between ordinary wear and damage that affects the validity of the document, and rules that such cases should be evaluated individually by a competent halachic authority. See also R. Moshe Aryeh Freund, cited in Ateres Yehoshua, ch. 4 §23. Where the original kesubah has become worn, a new document known as a hatpasas kesubah is written.
[13] See Kovetz MiBeis Levi, vol. 7, p. 59, in the name of R. Shmuel Wosner.
[14] Teshuvos V’Hanhagos (VI:269) notes that although a wife today is unlikely to fear a divorce in violation of Rabbeinu Gershom, the kesubah remains necessary as it reinforces the husband’s responsibility toward her.
[15] See Teshuvos V’Hanhagos, I:760, Tzitz Eliezer, IX:39, sec. 2. Mishpetei HaKesubah chapter 61.
[16] See Shulchan Aruch, Even HaEzer 66:2. The amount of the collateral is calculated according to the current market value of silver. According to the Rama, following R. Chaim Na’eh’s calculation, the basic kesubah of a virgin corresponds to approximately 960 grams of silver; more stringent opinions calculate it at approximately 1,010 grams. The basic kesubah of a widow corresponds to approximately 480 grams of silver. See Teshuvos Chayei HaLevi, Even HaEzer, I:102.
[17] Teshuvos V’Hanhagos, based on Beis Shmuel (Even HaEzer 66 §4) says a day or two.
