Class Notes - Class #1

The first three classes for this season will deal with marriage and divorce.  Just a reminder before we begin this topic:  Sefer haHinnuch was written by a father for his son, and is based on literature written by men for men.  No one anticipated a modern female audience.

              It is important to know whether a particular man and woman are married to each other or whether they are not, so it makes sense to have a ceremony that marks the marriage. We learned earlier that the marriage ceremony has two parts.  First is “eirusin,” also called “kidushin.”  After eirusin, the couple is married:  to separate they need to divorce, and any sex the wife has with someone other than the husband is adultery.  However, eirusin does not permit the couple to have sex with each other.  The second part of the marriage ceremony, “nissuin,” solves that problem.   In earlier times there was a substantial delay between the two parts of the ceremony, sometimes as long as a year, but now they happen at the same time, only separated by the reading of the k’tubah.  The k’tubah is a pre-nuptial agreement outlining the obligations of the husband during the marriage or if the husband divorces his wife or dies and leaves her a widow.  In earlier times the k’tubah was individually negotiated and might cover non-economic topics as well, but now the k’tubah is a standard text.  We have also seen earlier that a father has the power to arrange a marriage for his underage daughter without her consent.

When we studied forbidden sexual relations we noted the absence of a prohibition on sex between an unmarried man and an unmarried woman.  The source verse for mitzvah #570, Deut. 23:18, instructs that there should be no “k’daishah” among Jewish women.  “K’daishah” identifies a woman involved in some sort of illicit sex.    Mitzvah #552 is a positive mitzvah that requires a man to marry a woman through the appropriate ceremony before having sex with her.

            Rambam sees mitzvah #570 as prohibiting sex between unmarried partners.  It applies to the male and female partners in the relationship, it prohibits a father from providing his daughter for such a relationship, and it requires the local authorities to act against a woman who is involved in promiscuous relationships.  Although the local authorities are not punishable for failing to act, the author mentions that someone who can prevent wrongdoing and fails to do so shares responsibility for that wrongdoing.  Our author does not mention the authorities acting against the men involved in these illicit relationships.

            We saw in mitzvah #61 that a man who seduces a virgin woman either marries her or pays a hefty fine to her father. (This is different from rape.  We will see the mitzvot about rape shortly.)  Rambam worries that people will think of this as a matter of choice, like any commercial transaction.  If the man can talk the woman into having sex with him and he is willing to bear the consequences, then no harm is done.  And a girl’s father might think that he can arrange for his daughter to have sex with a man without marriage and simply negotiate a price. According to Rambam, a mitzvah that prohibits sex between participants who are not married to each other corrects that mistaken notion.  Sex outside of marriage is forbidden; the consequences should not be thought of merely as transaction costs. Otherwise licentiousness and rape will become much more common. 

            Rambam understands this mitzvah as requiring a wedding before sexual relations between a man and woman.  He also understands this mitzvah as a Torah requirement for a groom to give a k’tubah to the bride. We will see more information about the required wedding ceremony momentarily.

            Ramban has a completely different understanding of this mitzvah.  Ramban does not think there is a Torah prohibition on sex between an unmarried man and an unmarried woman unless that sex is prohibited by some other specific mitzvah, for example one of the incest prohibitions.  And he thinks the requirement that the groom give the bride a k’tubah is rabbinic rather than Biblical. 

            Rather, for Ramban this mitzvah reinforces prohibitions on sexual relations between two Jews for whom, if they tried to get married the marriage would not take effect.  That category includes sexual relations characterized as “ervah,” Biblically prohibited relationships that would potentially be punishable by death or karet.  We saw several such examples, like adultery and marriage between a parent and child, when we studied forbidden sexual relations. 

            Even for Ramban, though, this mitzvah extends to fathers and to local authorities.  It requires local authorities to act against a licentious woman.  Since she is not choosy about her sexual partners, she may end up having sex with a man with whom a marriage would not take effect.  Similarly, a father should not make his daughter available for sex without marriage lest she end up having sex with a man with whom a marriage would not take effect.

            And Ramban relies on Onkelos, an Aramaic translation of the Torah, which says this mitzvah prohibits a Jewish man from marrying a “shifcha,” a non-Jewish slave woman, and also prohibits a Jewish woman from having sex with an “eved c’na’ani,” a non-Jewish slave.  This is really an extension of the Ramban’s idea that this mitzvah reinforces prohibitions against sex with someone with whom a marriage would not take effect, since a marriage between a Jewish adult and a non-Jewish slave would not take effect.  Although non-Jewish slaves are obligated in some mitzvot, the prohibition here is on the Jewish partner but not on the slave.

            Mitzvah #552 sets out the requirements for a wedding. The halachah refers to this process as the man “acquiring” the woman, language which reflects the ancient notion that a wife was her husband’s “property.”  We will see more nuance on that topic shortly.  It may also reflect the disparate effect marriage has on the husband and wife, in that if the wife has sex with a man other than her husband she is guilty of adultery whereas the fact that the husband is married does not per se mean that he is guilty of adultery if he has sex with another woman.  Husbands have specific obligations to wives, which we learned about in mitzvah #46.  And all the mitzvot that govern how one person should treat another person apply to both wives and husbands.

            The shoresh our author sees in the need for a marriage ceremony is to help both men and women avoid casual sex.  A women needs to know that marriage means very serious potential consequences if she has sex with a man other than her husband.  A woman who wears a wedding ring will have a constant reminder.  The author adds that happy marriages are good for people and good for a peaceful, settled community.  Happy marriages are more likely if wives treat husbands with honor and service.  Recall that husbands are obligated to provide their wives with food, clothing and sex.  The two sets of obligations are not parallel, and they reflect a historical understanding of marriage that may not match current expectations.

By Torah law, eirusin between a man and an adult woman takes place in one of three ways.  Our author explains the Biblical source for each procedure:

1.       Kesef,” money.  In the presence of two qualified witnesses, the groom gives the bride an item of value, explicitly stating the gift is meant to effectuate a marriage. The bride consents by accepting the gift.  The item must belong to the groom, since giving something that isn’t yours isn’t much of a gift.  The item must be worth at least a p’rutah.

2.       “Shtar,” document.  In the presence of two qualified witnesses, the groom gives the bride a document attesting that he intends to effectuate a marriage.  The bride gives her consent by accepting the document.  This document is different from the k’tubah, and the k’tubah does not constitute a shtar that effectuates a marriage.

3.      Bi’ah,” sexual relations.  In the presence of two qualified witnesses, the groom states to the bride that the act of their having sex will effectuate a marriage, and then takes the bride to a private place.  They are married when they have sex with each other. The rabbis objected to this procedure and forbade it.

By Torah law, nisuin is effected when, in the presence of two qualified witnesses, the bride and groom are together under the “huppah” for the purpose of effecting the marriage.  There are several opinions of what constitutes huppah, including the bride entering the groom’s home, the bride and groom being alone together for enough time to have sex with each other, or perhaps the symbolic huppah we are familiar with from current wedding ceremonies.

Our author provides lots more detail about each of these procedures.

For a kesef marriage ceremony, the groom gives the bride a gift worth at least a p’rutah.  A gift worth less than that is just too trivial; the bride will not take it seriously.  Distinguish that from a shtar ceremony where the groom gives the bride a document.  That works even though the document as an artifact may be worth less than a p’rutah.  The document here is not functioning for its intrinsic worth, but for what is says and signifies, and people take documents seriously. Since a barter transaction can happen even for a value less than a p’rutah, barter cannot constitute kesef to effectuate a wedding.

In a kesef wedding the groom has to give the bride an item of value, and that creates a myriad of other questionable cases.  Many of those cases, although not all of them, are more hypothetical than practical. The item has to belong to the groom. If the groom does not own the item, then the groom is not giving a gift to the bride.  What if the groom borrowed the item?  What if the groom gives the bride the right to collect a loan owed to the groom?  What if the groom gives the bride something from which benefit is forbidden, for example hametz during Passover?  Our author says that if benefit from the item is forbidden d’oraita or even d’rabanan the wedding is ineffective.  The author mentions a case where the groom tries to marry half of his bride, of says half of him will marry the bride.  That odd case is mentioned in a b’raita and may be an example of using unusual cases to make easier memorization of legal material.  The Gemara (Kiddushin 7a) makes a valiant attempt to make sense out of those cases.

The author considers the parallel case, where the bride has taken a vow not to get benefit from anything given to her for the purpose of effecting a marriage.  A father can keep his daughter from eloping by convincing her to take a vow not to get benefit from anything given to her for the purpose of effecting a marriage unless she informs the father first.

For a shtar marriage ceremony, the document can be written on most anything:  parchment, paper, pottery, even a leaf.  There are issues about exactly what the document needs to say that parallel issues about various things the groom might say in a kesef ceremony.  The groom must write or commission the document to be written specifically for the particular bride and with her knowledge and consent.  He cannot write it first and then try to find a bride to give it to.

Since the groom is the active party in a marriage ceremony, it is clear that the groom is participating willingly. Even if the groom was compelled to participate, the marriage ceremony is effective.  Any form of marriage requires the bride’s consent.  If the bride is coerced to participate the marriage ceremony is not effective and the couple is not married.

Each procedure requires that the husband state his intent that the action he is about to take will effect a marriage. The groom’s statement must reflect the different role of the groom and bride, that the groom is “acquiring “the bride, and not the other way around. Our author gives various possible formulations for the groom’s statement.  The context may also matter, so that a given statement might effect a marriage if the couple were talking about marriage whereas it would not effect a marriage if they were not talking about marriage. Some of the proposed statements result in a “safek kiddushin,” a “doubtful marriage.” Our author seems relieved that so many Jewish communities customarily stick to the standard formulation that is used in weddings we are familiar with.

The author considers cases where the bride rather than the groom is the active party in the ceremony.  The bride might make the required statement, and/or give the groom a gift.  Although halachah understands marriage as a specialized contract between two consenting adults, the transaction itself is not parallel.  Rather, the husband “acquires” the wife, and the ceremony must reflect that acquisition.  It should not surprise us that the halachah considers variations on who gives the other a gift, who makes a statement, and what was stated. 

Witnesses are an essential part of the ceremony, so that if the required acts are done without qualified witnesses the marriage is not valid even if there is no doubt that the ceremony took place.  If the bride and groom both agree that the marriage ceremony took place, the marriage is not recognized without qualified witnesses.

As with any transaction that has legal consequences, the parties must be competent adults.  The marriage ceremony can take place through agents, with an appointed stand-in for the bride and for the groom.  The agent may appoint a sub-agent if the principal agrees. The groom can even appoint an agent to choose the bride and then marry her on the groom’s behalf.  The author does not say whether the bride can let her agent choose the groom.

The author mentions marriages where the bride or groom is a minor, although he does not discuss that topic systematically.  The father of a girl has the power to effectuate a marriage for her.  In general such marriages are binding although the father should not arrange such a marriage if the girl does not consent or if a girl is too young to consent.  If the father does marry off his daughter, the father rather than the daughter gets the gift the groom gives.

The outcome of a marriage ceremony that takes place between a bride and groom who are forbidden to marry each other depends on the nature of the prohibition. When we studied forbidden sexual relations we saw that some relationships were considered “ervah” and some were not.  If the woman is considered ervah to him, the wedding is ineffective, except in a case where the ervah is that she is a niddah.  If the woman is not considered ervah to him, the wedding is effective.  If sex between the bride and groom is forbidden d’rabanan, the wedding is effective.

Normally, the prototype of ervah would be a married woman who then marries another man.  Therefore, if a married woman has a wedding ceremony with another man that wedding is ineffective.  But if that marriage ceremony takes place in the presence of her original husband the wedding is effective, since we assume she would not have had the nerve to have another wedding in the presence of the original husband unless they had divorced.

In our current practice, eirusin and nisuin happen at the same time, separated by reading the k’tubah.  First comes eirusin, accomplished by the groom giving the bride an unadorned ring so its value of more than a p’rutah is clear. The groom states his intent that the gift should effectuate a marriage using the formula our author mentioned. This happens in front of two qualified witnesses and is preceded by the appropriate blessings.  The bride’s consent is shown when she accepts the ring.  The k’tubah is read to separate eirusin from nisuin.  The groom then gives the k’tubah to the bride.  The k’tubah describes the obligations of the husband to his wife, so it is meaningful only if the wife possesses it, not if the husband possesses it. Then comes nisuin, accomplished by the bride and groom, in the presence of two qualified witnesses, being together under the huppah and also spending time alone together.

At the end of this mitzvah/essay, the author outlines the eirusin ceremony. As in our current ceremony, eirusin consists of two blessings, one over wine and one for the mitzvah of marrying.  Our author’s text of that second blessing is a little different from the one we typically use, but the meaning is the same.  The blessing is a reminder that sex between the bride and groom is still forbidden and will not be permitted until nisuin also takes place.  As far as I know this is the only blessing that serves primarily to remind what is forbidden.  The blessings may be said by the groom or, as in our practice, by someone else reciting and the groom answering amen.  Assuming a kesef marriage ceremony, the author says that the blessings should be recited after the groom delivers a gift to the bride, since until then no one knows if the bride will consent to the marriage by accepting or will reject the marriage by refusing to accept the gift.  But the author also cites Rambam, who holds that a blessing over a mitzvah must be said before the mitzvah is done so that this blessing needs to be said before the groom delivers the gift to the bride.  Our practice follows Rambam.

Mitzvot #581 and 582 mandate special obligations on the groom in the first year of marriage.  Mitzvah #582 requires the groom to stay home and rejoice with his bride.  Mitzvah #581 prohibits the groom from taking extended trips away from home and prohibits the community from drafting the groom for military or other community service. 

These mitzvot assume a society in which families arranged marriages for children, and the bride and groom marry without having gotten to know each other. According to our author, these mitzvot help the bride and groom establish a loving relationship.  In particular, a person learns to love what the person is familiar with.  When the groom spends the first year of the marriage at home, he gets to know his wife and learns to love his wife. The groom will be less likely to be attracted to other women. These mitzvot help get the marriage off to a good start, and successful marriages contribute to a stable, settled community where children are raised in stable families. 

The groom is required to spend the first married year at home no matter what the status of the bride, whether this is her first marriage or she is a widow or divorcee.  These mitzvot do not apply to a groom who divorced his wife and then remarried her.  Our author specifies that the groom does not go to war either as a soldier or in a support capacity and is not obligated for work taxes.  That is different from someone who has built a house and not yet lived in it or planted a vineyard and not yet harvested, who is exempt from fighting but not from military support functions or community service.  The author says the groom should not leave home for other similar reasons, so apparently the groom should not take business or pleasure trips for more than a few days. The groom is permitted to travel in the expectation of doing a mitzvah. Authorities disagree about whether the groom may take extended trips with the bride’s permission.  Presumably the couple is allowed to travel together.

These mitzvot prohibit the government from drafting the groom for military or civilian public service, and that aspect of these mitzvot applied only when the Temple functioned and the Jewish government waged war.  Other aspects of these mitzvot remain in effect.