Pidyon Kaparot Now

Vo’eschanan-Must one who Changed his Name Write a new Kesubo?

 

Question

I became a ba’al teshuvo about twenty-five years ago and Baruch Hashem I raised a large frum family. About fifteen years ago I went to Rav Chaim Kanievsky and he told me to change my name from the modern Israeli name my parents gave me to Meir. I complied and everyone now knows me as Meir and I sign my checks and am called up to the Torah by the name Meir. Recently, I realized that perhaps I need to write a new kesubo since my wife’s kesubo is written in my old name. Must I write a new kesubo?

Answer

In order to answer your question we need to understand what a kesubo is, how important it is to have a proper kesubo and how important the husband’s name is.

There is a dispute among the Tanoim and the poskim whether the source for the obligation to pay a kesubo is Biblical or Talmudic. However, according to all, anyone who is married is required by Jewish law to give his wife a document that obligates himself or his heirs to pay his wife an amount upon his death or in case he divorces her.

Additionally, the Gemoro (Kesubos 82B) writes that Shimon Ben Shetach (time of second Beis Hamikdash) instituted that the kesubo document must be written in a manner that subordinates all of the husband’s assets, at the time he marries, to this obligation. This means that if the husband owned property when he got married and he subsequently sold it, the wife, if necessary, can collect from that property.

The Rabbonon (Even Ho’ezer 66, 1) went so far as to prohibit marital relations with a woman who does not have a valid written kesubo. Even (ibid 66, 3) if a woman waives her right to a kesubo or if she loses her kesubo, the husband is required to give her a new kesubo document. Thus, a kesubo is a required legal document that must be written in a manner that obligates the husband to pay money to his wife in case the marriage is terminated by the husband and that subordinates all the husband’s assets to this obligation.

This is equivalent to a loan document since the obligations are equivalent. It is just the sources of the obligations that differ. Therefore, we can derive the rules governing the legal document called a kesubo from the laws governing loan documents. Loan documents are discussed by the Shulchan Aruch whereas there is no discussion of the kesubo document.

The Mishnah (Bava Basra 172A) writes that if the name of the borrower that is written in a loan document is shared by two or more people in the city where, according to the loan document, the loan took place, the loan document does not enable the lender to collect from anyone since each person with this name can claim that he was not the borrower. They wrote these documents as we do today in a kesubo, namely the borrower’s personal name as the son of his father. The solution that the Mishnah prescribes for dealing with this situation is to include the name of the borrower’s grandfather. Some other identifying feature that uniquely identifies the borrower may also be referenced. Thus, in order to be valid, the kesubo document must identify the one who is being obligated uniquely.

The Mishnah (Gittin 34B) writes that Rabbon Gamliel instituted that in a get (a divorce document) one must include all the names by which a husband and wife are or were ever called since we are concerned that the divorced wife may eventually move to a different place where she or the husband are known by a different name. Therefore, in a get we are careful to write all the names by which the husband and wife are known. From the fact that this was specifically instituted for gittin, the Shulchan Aruch (Choshen Mishpot 49, 1 and Gra note 1) derive that loan documents do not require any more than that the borrower’s name is written in a manner that identifies him uniquely and  unequivocally. Since the kesubo document is a loan document we have thus learned that your kesubo only requires that your name be written in a manner that identifies you uniquely.

Having derived the underlying rules, we will now study the general literature concerning your question before dealing with your particular situation.

Your original name is what is referred to in the literature as a shem shenishtakea (literally, a name that sunk into the ground) i.e. a name that is no longer in use. The consensus opinion is that even though we write all names in a get, we do not write a shem shenishtakea. The Oholei Shem (from the Kitsur Shulchan Aruch, 2, note 23) has a dispute with another poseik if a name that was used in the kesubo is ever called nishtakea and thus may be left out of a get, or perhaps, the mere fact that the name is written in the kesubo prevents it from ever becoming nishtakea and therefore it must be included in a get. The Oholei Shem is of the opinion that it still can become nishtakea and he says that therefore one must rewrite his kesubo if the name that was written in the kesubo is no longer in use. Thus, he would seem to rule that you should write a new kesubo.

The Minchas Yitzchok (7, 117), while agreeing that it seems that one should rewrite his kesubo, notes that it is not customary for people to do so. He says that a possible justification for the custom is that a woman having such a kesubo is not the same as a woman who does not have any kesubo because if necessary she can bring witnesses to testify that the name in the kesubo is the original name of her husband and she will thereby be able to collect her kesubo. However, he (8, 127) agrees that the proper thing to do is to rewrite the kesubo using the new name.

There is a very important point that must be taken into consideration when writing a new kesubo, namely the proper date for the new kesubo. We mentioned earlier that all the possessions that the chosson has at the time he marries become collateral to guarantee payment of the kesubo. Therefore, if the husband writes a new kesubo with a new date he will thereby remove some of his original possessions from their status as collateral. Therefore, the new kesubo must bear the same date as the original. However, one cannot simply write a new kesubo on his own with the old date because the date will be wrong and the new kesubo will be invalid. One requires (see CM 41, 1 and Res. Mahara Sasson 66) a beis din to write the new kesubo and they can, after seeing the original date on the old kesubo, write the original date on the new kesubo.

In another teshuvo (10, 132) the Minchas Yitzchok adds three points. One is that even when a name is added to the original name, as people do when they change their name due to illness, it is important to write a new kesubo using both names together, and we don’t consider the old kesubo with one name as sufficient. A second point is that one must be careful to wait at least thirty days after a name is changed before writing a new kesubo. The reason is because it takes that much time for a new name to be established from the standpoint of the halachah (See CM 49, 3-4). The third point is that the text of the replacement kesubo should be the one that is used when a kesubo is found to be invalid. However where that standard text says that the original was found to be invalid, one should write that the husband’s name was changed.

We should add that nowadays the situation in Israel is quite improved from the time of the Oholei Shem. As we mentioned earlier, the importance of the husband’s name is to enable the wife to collect her kesubo and the husband must not be able to claim that he is not the one who obligated himself to pay. Today, there are many legal documents that can be used to prove that the husband changed his name. For example, in Israel one must fill out an official form in order to legally change his name. Additionally, when one weds he must file for a marriage certificate and that has the husband’s name as he was called at the time he married. Furthermore, the wife’s identity card (te’udat zehut) has the husband’s name. Therefore, a wife should have no problem proving that the husband who is divorcing her now is the same one who gave her the kesubo document with his original name when they wed, years earlier. Therefore, certainly there is no prohibition to have relations with a woman who has a kesubo with the husband’s original name.

The Pischei Choshen (9, Kuntress Be’inyoney Kesubo) advises that one should take three people and write under the original kesubo that the husband changed his name and now he is called by his new name. Any three people can constitute a beis din for this.

In conclusion: You may continue living with your wife in the meantime. It is advisable to take three people and have them sign on the bottom of your wife’s kesubo that you changed your name and now your name is Meir.

 

 

 

Leave a comment

Your email address will not be published. Required fields are marked *