Legal-Religious Status of the Married Woman
CONDITIONS NECESSARY FOR LEGAL MARRIAGE
The rabbis established the criteria necessary for legal marriage. These include the man’s acquiring (purchasing) the woman with a formula that indicates that he is the purchaser, the sole active party in the marriage process: payment of the appropriate minimum amount of money; or a document with the appropriate formula; or sexual relations for the sake of marital acquisition (Moses ben Maimon (Rambam), b. Spain, 1138Rambam, Ishut 3: 2–5). There must be two valid witnesses. The acquisition must be done with the woman’s consent and any document must be written specifically in her name. There must be two valid witnesses to the seclusion of the couple for marriage by sexual relations, the man must state that it is for marriage through sexual relations, and he must complete a sexual act even if it is not vaginal intercourse. Although sexual relations for the sake of marriage constitute legal marriage, it was considered inappropriate behavior and the man was flogged for performing this type of marriage (ibid. 3:21). Casual giving of goods using a marriage formula is not considered marriage since it must be part of a serious conversation with marriage as its purpose (ibid. 3:7). The father may betroth his minor and maiden daughter to a Jewish man without her consent, but if she is subsequently divorced or widowed as a minor, she is considered an orphan in his lifetime and he no longer has the right to marry her off (ibid. 3: 11–12). A minor girl cannot arrange her own marriage. Marriage can be accomplished by agency from both the husband’s side and the wife’s side, but it is considered a A biblical or rabbinic commandment; also, a good deed.mitzvah for the man to see the woman prior to marriage lest he find something repulsive in her that the agent would not notice. The woman is not obligated to see the man before marriage because of the rabbinic understanding that she would prefer to be married even if the man was not appealing (ibid. 3:15, 19). A blessing (birkat erusin) should be recited (ibid. 3:24).
Marriage cannot take effect between parties who are forbidden to one another by the incest code in Leviticus 18 and 20 even if all other conditions are in place (witnesses, minimum sum, correct formula) (ibid. 4:12). The only exception is if the bride is Menstruation; the menstruant woman; ritual status of the menstruant woman.niddah, but the marriage date should be arranged when she is in a state of ritual purity. Marriage between parties who are part of the rabbinic expansions of the incest prohibitions, as well as those prohibited by negative commandments, are legally binding but the couple are required to divorce. There is a question whether a The widow of a childless man whose brother (yavam or levir) is obligated to marry her to perpetuate the brother's name (Deut. 25:5yevamah who marries a man outside her husband’s family (a prohibition, lav) is in a binding marriage (ibid. 4:14). Marriage is not legally binding between a Jew and a slave or a non-Jew and Moses ben Maimon (Rambam), b. Spain, 1138Maimonides (Rambam) includes a (Samaritan) woman in that category (ibid. 4:15). Marriage of a Jewish woman by a man who has converted out of Judaism (apostate; mumar) is legally binding and the woman must be released by a get.
There are many conditions concerning witnesses, marriage formula, context of marriage, etc. which create doubtful marriage. The woman is generally at a disadvantage in these situations because she must be released with a get.
DUTIES OF THE MARRIED WOMAN
A wife is obligated to grind grain, bake, launder clothes, cook, nurse his child, prepare her husband’s bed and work in wool for him. He retains the monetary benefit from her handiwork and is entitled to whatever she finds. If she has brought a maidservant into the marriage, she is exempt from grinding grain, baking and laundering. If she brought two maidservants into the marriage she is exempt from cooking and nursing his child. If she brought three maidservants into the marriage, she is exempt from preparing his bed and working in wool. R. Eliezer b. Hyrcanus rejects the view that the woman has no obligation to do work for her husband even if she brought many maidservants into the marriage, lest her idleness lead to lewd behavior. Rabban Simeon ben Gamliel II goes so far as to require a man who has vowed not to benefit from his wife’s work to divorce her lest idleness lead to boredom (Codification of basic Jewish Oral Law; edited and arranged by R. Judah ha-Nasi c. 200 C.E.Mishnah Ketubbot 5:5). The type of work a woman is expected to do is dependent on her locality but she is expected to do women’s work and not men’s work. She is expected to have regular sexual relations with her spouse, with the frequency based on his profession (Mishnah Ketubbot 5:6). Repeated refusal to accommodate his request for sexual relations at a time when she is not ritually impure, is grounds for her to be declared a rebellious wife (Rebellious wifemoredet). A woman may keep the benefits of her handiwork by forgoing maintenance by her husband and this can be stated in the Marriage document (in Aramaic) dictating husband's personal and financial obligations to his wife.ketubbah. It would seem that this would allow a particularly skilled artisan to benefit financially from her own work. If a woman produces an excess in her handiwork while still receiving maintenance from her husband, it is considered to be something she finds and therefore belongs to her husband (Moses ben Maimon (Rambam), b. Spain, 1138Rambam, Ishut 21:2). Several other issues may be specifically mentioned in the ketubbah, such as the prohibition to take another wife, restriction on travel, etc., and these are binding contractual conditions. It is generally assumed that the man will choose the place of residence either because of family property or profession and that the woman would accept that choice prior to the marriage. There are certain limitations on change of residence, particularly if it involves reduced contact with the woman’s family, a reduction in her standard of housing, or leaving Israel (which may be grounds for divorce). Rambam excluded the levirate wife from the condition to prohibit the husband from taking another wife because he considered the precept of Marriage between a widow whose husband died childless (the yevamah) and the brother of the deceased (the yavam or levir).yibbum as taking precedence, both because he lived in a polygynist milieu and because the husband did not seek out the marriage.
Normally the woman was provided with dowry (Dowrynedunyah) upon marriage. This was actually a form of inheritance because if a woman had brothers, they inherited their father. The obligation of the father to provide a minimum dowry (fifty zuz) compensated her for the loss of inheritance (Mishnah Ketubbot 6:5). If the father was impoverished, charitable institutions were obligated to provide the minimum dowry. If a guardian marries off a minor girl with a minimum dowry, when she comes of age she may sue the family for the amount which is rightfully hers, namely ten percent of the inheritance or an estimation of what the father would have given her (Mishnah Ketubbot 6:6, BT Ketubbot 68a, Rambam, Ishut 20:12). The nedunyah could be given in the form of money, goods, real estate or slaves.
If the woman’s real estate came under her husband’s control upon marriage and he accepted responsibility for it, i.e. Property which the husband guaranteed to return at full value to the wife if they divorced.zon barzel property (property which the husband guaranteed to return at full value if they divorced), the benefits or losses on that property accrue to him but he is obligated to return to her the capital value as set in the ketubbah. Even if she sells her zon barzel property, the husband has the right to the fruits of those fields from the buyer during his wife’s lifetime. After her death, he takes back those fields from the buyer, returning the purchase price if the woman still had it (Rambam, Ishut 22:7). This property may be livestock, fields, slaves or goods—anything which could produce benefits by growth or fruit or rental. As for her Property which the woman brings at the time of marriage, for which her husband does not assume financial responsibility for the principal but has the right to the fruits (usufruct). The benefits or losses on that property accrue to the woman.melog property (property which she brings at the time of the marriage, for which her husband does not assume financial responsibility for the principal but has the right to the fruits, usufruct), the benefits or losses on that property accrue to the woman. These properties are written into the ketubbah. Other properties which she inherited or received as a gift either from her husband or others after marriage are under her management. The man also had a right to use household utensils, bedding and benefit from her flocks because there was an idea of mutual benefit to the family (ibid. 22:20). Upon the death of the husband or divorce, the woman could demand payment of her ketubbah for which his property served as collateral. She could claim the value of the ketubbah from fields of the lowest quality (ziborit) but she could reclaim better fields if she brought them into the marriage. In modern Israel, Jewish law is not followed in reference to the rights of the husband in his wife’s property (Women’s Equal Rights Law, section 2, 1951).
PRIVILEGES OF THE MARRIED WOMAN
The obligations in Codification of basic Jewish Oral Law; edited and arranged by R. Judah ha-Nasi c. 200 C.E.Mishnah Ketubbot 5:5 apparently parallel the husband’s obligations to his wife: food, clothing, and sexual relations (all of which are considered biblical obligations), basic Marriage document (in Aramaic) dictating husband's personal and financial obligations to his wife.ketubbah and conditions of the ketubbah: medical expenses when ill, ransom if taken captive, burial, the right to maintenance from his property and to remain on his property as a widow, that her daughters from him be maintained from his property after his death until they are betrothed and that her sons from him inherit her ketubbah in addition to their portion in his property with the rest of their paternal brothers (Moses ben Maimon (Rambam), b. Spain, 1138Rambam, Ishut 12: 2). The obligation to ransom a captive wife was considered to be in exchange for the man’s right to the fruits of her fields, usufruct, (BT Ketubbot 47b) and his obligation to oversee her fields (JT Ketubbot 5:6). This is not a privilege which she can forgo, lest she be taken into captivity and remain unransomed. In the event that the woman married to a Priests; descendants of Aaron, brother of Moses, who were given the right and obligation to perform the Temple services.kohen is taken captive by non-Jews, her husband is obligated to redeem her, divorce her and return her to her father’s home, because it is assumed that she was raped and therefore forbidden to him. A non-priest must redeem his wife if taken captive and she returns to his home even if she has been raped. These are conditions of the court and are valid even if not written specifically in the ketubbah (Mishnah Ketubbot 4:8). Medical expenses of the wife are to be paid by the husband but he may divorce her and give her the ketubbah so that she can pay for the medical expenses herself (Mishnah Ketubbot 4:9) as a condition of the court.
The right of a widow to live in her deceased husband’s house and be maintained from his property is a condition of the court. However, it depended on locality. This was the law in Jerusalem and in the Galilee, but in Judah the heirs (presumably not the sons of the widow) could give her the ketubbah and send her away. It should be noted that in this case she was prohibited to her husband’s son as part of the incest code (i.e. she was an ervah to them) and her removal may have made the living conditions less strained.
The man was obligated to have regular sexual relations with his wife (Exodus 21:10) but the regularity depended on the man’s profession (Mishnah Ketubbot 5:6): healthy men of leisure – every day; laborers who work in their town of residence—twice a week; mule drivers who transport goods for short distances—once a week; camel drivers who travel greater distances—once a month; sailors who are away from home for long periods of time—once in six months. The sages hold that men may leave home to study Torah she-bi-khetav: Lit. "the written Torah." The Bible; the Pentateuch; Tanakh (the Pentateuch, Prophets and Hagiographia)Torah without their wives‘ permission for two or three years (Rambam, Ishut 14:2). This certainly gave an extra privilege to ascetic men who studied Torah and exempted them from the biblical obligation of Biblically mandated fulfillment of a wife's sexual needs.onah for long periods of time at the expense of the wife’s sexual rights. If a man vowed not to benefit from intercourse with his wife, according to Bet Shammai he could keep that vow for two weeks, while Bet Hillel allowed him only one week. After that time he was obligated to divorce his wife and pay her ketubbah (Mishnah Ketubbot 5:6).
LEGAL DISADVANTAGE INHERENT IN KIDDUSHEI KINYAN (ACQUISITION)
Due to the nature of kiddushin as a unilateral acquisition of the woman, a married woman is always at a legal disadvantage in reference to her personal freedom. Halperin-Kaddari (Tova Cohen, 2000) has noted that divorce cannot be effected by an external institutional body like the civil or religious courts, but only by the parties directly involved. The differential in power between the parties on the issue of free will to grant or receive a get is asymmetric: the man’s need for free will in granting the get is biblically derived according to the rabbis, while the woman’s free will in accepting the get is late rabbinic (from the decree attributed to Rabbenu Gershom). This means that even when the Lit. "house of judgement." Jewish court of lawbet din decides to “compel” the man to divorce, in Israel it may only impose civil sanctions to encourage him to give the get in a The legal corpus of Jewish laws and observances as prescribed in the Torah and interpreted by rabbinic authorities, beginning with those of the Mishnah and Talmud.halakhic manner but it cannot “grant” a divorce. Nor can it remove the absolute necessity of the man’s free will in giving a get because such a get would be considered invalid (me’useh), leaving the woman still married. Moses ben Maimon (Rambam), b. Spain, 1138Rambam considered acquisition of a woman through money as a rabbinic innovation as opposed to marriage by document or by sexual relations (Rambam, Ishut 3:20). Harry Fox considers acquisition by money the latest form of marriage and based on the fact that earlier texts use kiddushin formulae and that the first sugyah (Talmudic topic) in Tractate Kiddushin, which is (Aramaic) Babylonian scholars during c. 500savoraic, fails to find any reasonable biblical antecedent. Although the acquisition of a woman is not the same as the acquisition of an animal or an object in that she cannot be sold onwards and that her consent (or the consent of her father while she is a minor or a maiden, or the consent of her mother/guardian as a minor) is necessary for her to be acquired, she is nevertheless unable to free herself from the marriage. Tractate Kiddushin opens with the acquisition of a woman in marriage (and in Marriage between a widow whose husband died childless (the yevamah) and the brother of the deceased (the yavam or levir).levirate marriage) and the release, which is through a get or the death of the husband (or in levirate marriage by the death of the levir or release through halizah), situations over which she has no control. Tractate Kiddushin proceeds to discuss other acquisitions and their release: the Hebrew slave, the Hebrew maidservant and the Canaanite slave. The fact that the purchase of large animals, small animals and objects follows clearly presents the acquisition of a woman in marriage as a sale. Codification of basic Jewish Oral Law; edited and arranged by R. Judah ha-Nasi c. 200 C.E.Mishnah Kiddushin 1:1 states that the woman may be acquired by money, by document (not a Marriage document (in Aramaic) dictating husband's personal and financial obligations to his wife.ketubbah but a separate document stating that she is sanctified to the man) and by intercourse. A girl’s intercourse is considered legal from the age of three years and one day and from that age she may be acquired by sexual relations. The rabbinic sages believed that her hymen would return and her virginity would re-establish itself if she had intercourse prior to that age (BT Menstruation; the menstruant woman; ritual status of the menstruant woman.Niddah 45a).
Because the man unilaterally acquires the woman, only he can release her through divorce. Only in a very limited number of situations can a woman request that the rabbinic court act on her behalf to compel her husband to divorce her. These situations have to do chiefly with his profession or physical condition, i.e. if he were a smelter of copper (who probably worked with sulfur) or tanner (who worked with animal feces) or if he had polyps in his nose (which caused foul odor from his nose or mouth). In these cases she could claim that although she initially thought she could endure the unpleasant profession, she can in fact no longer do so and the court may compel the man to divorce her and give her the Marriage document (in Aramaic) dictating husband's personal and financial obligations to his wife.ketubbah (Codification of basic Jewish Oral Law; edited and arranged by R. Judah ha-Nasi c. 200 C.E.Mishnah Ketubbot 7:10, BT Ketubbot 77a, Shulhan Arukh E. H. 154:1). Although he remains the active party in that he must order the get to be written and delivered, should he be recalcitrant, the rabbinic court could order that he be flogged to convince him that he truly desires to give the get. This is a system that worked only when corporal punishment was an effective tool of the court. If a man after marriage develops certain physical defects, he cannot be forced to divorce his wife even if she would not have wanted to marry him with such defects. While a woman who develops defects after marriage can be divorced because of them, it was assumed that a woman would tolerate certain physical defects in her husband. There is a dispute in the Mishnah (Ketubbot 7:9) between the anonymous Lit. (from Aramaic teni) "to hand down orally," "study," "teach." A scholar quoted in the Mishnah or of the Mishnaic era, i.e., during the first two centuries of the Common Era. In the chain of tradition, they were followed by the amora'im.tanna who holds that if the man developed defects he is not compelled to divorce his wife and Rabban Simeon ben Gamliel II who holds that though this applies in the case of minor defects, major defects, such as blindness in both eyes or leprosy (or boils) which prevented normal activity, were considered grounds for divorce in the Lit. "teaching," "study," or "learning." A compilation of the commentary and discussions of the amora'im on the Mishnah. When not specified, "Talmud" refers to the Babylonian Talmud.Talmud and the man was obligated to give her the ketubbah (Moses ben Maimon (Rambam), b. Spain, 1138Rambam, Ishut 25:12). According to both Rambam and the Shulhan Arukh (E. H. 154:4) the minor defects arising after marriage include blindness in one eye (or both eyes for the Shulhan Arukh) or amputation of a limb, and if the woman refused to remain married to him, she was treated as a Rebellious wifemoredet. We see an interesting dichotomy: if the man had leprosy (or boils), the court forced him to divorce his wife even if she wanted to remain with him, because sexual activity would cause his flesh to wear away. If she were willing to remain with him in the presence of witnesses, i.e. that they could not have sexual relations, the court would not compel a divorce. If, however, the woman had leprosy or boils, the man was not obligated to divorce her even if sexual relations wore her flesh away. If he did divorce her, he was obligated to pay her ketubbah (Rambam, Ishut 25:10). If the defects of the woman were in a place normally covered by clothing and there were no bathing facilities in the city, enabling the husband-to-be to send relatives to examine her when she was bathing, she could be divorced without a ketubbah because it was considered an acquisition in error (mikkah ta’ut). If the defects were in a place normally exposed or the woman lived in a city where there was a bathhouse, it was assumed that the man knew of the defects and had accepted them. If in that case he divorced her, he was obligated to pay her ketubbah. It should be noted that the man really had no obligation to provide a good reason for divorcing his wife, whereas the wife had to meet stringent standards in order for the court to request or force the man to divorce her (ibid. 25:2–5).
There are a number of cases in which the court could compel the man to divorce his wife if he chose to do so. If he refused to maintain her, the court could compel him to divorce and give her the ketubbah even if he would occasionally maintain her and then stop (Shulhan Arukh E. H. 154:3, ibid. Isserles). If the man forced her to transgress the laws of Israel, such as forcing her to eat nonkosher food when she customarily ate Term used for ritually untainted food according to the laws of Kashrut (Jewish dietary laws).kosher food or forcing her to have sexual relations while she was Menstruation; the menstruant woman; ritual status of the menstruant woman.niddah, the court could compel him to divorce her and pay her ketubbah but might require evidence of his wrongdoing and warning by witnesses that he not do so (Isserles E.H. 154:1). If the man regularly beat her, the court could compel him to divorce her and pay her ketubbah but it had to be demonstrated that she did not initiate the violence and did not warrant correction for the purpose of educating her (Isserles E.H. 154:3, Rambam, Ishut 15:19). If the husband committed adultery or frequented prostitutes, some poskim allowed the court to compel him to divorce her and pay her ketubbah (Isserles E.H. 154:1). Currently the rabbinic courts in Israel will not compel a divorce or even apply sanctions in most of the cases mentioned above.
Although the woman was not obligated in the A biblical or rabbinic commandment; also, a good deed.mitzvah of procreation and hence could not claim that barrenness was the grounds for the court to compel her husband to divorce her (Rambam, Ishut 15:2), if she made the claim that she wanted to be supported in her old age by her children or buried by her children, the court could compel the man to divorce her (BT Yevamot 65ab, Rambam, Ishut 15:10, Shulhan Arukh E.H. 154:6). Rambam makes this position conditional on the fact that she remained barren with him for ten years. If the woman claims that the man is impotent, she is believed even in the face of his counterclaim and the court can compel him to divorce her with her ketubbah (BT Yevamot 65a). Rambam (Ishut 15:14) encourages the court to make a compromise with her that she wait the ten years. The Shulhan Arukh (E.H. 154:7) holds that the court compels him to divorce her without a ketubbah, but if he divorces her of his own free will, he must pay her ketubbah.
Two major assumptions taken from BT Ketubbot 75a (etc.) underlie marriage and divorce The legal corpus of Jewish laws and observances as prescribed in the Torah and interpreted by rabbinic authorities, beginning with those of the Mishnah and Talmud.halakhah: “Resh Lakish says: It is better to sit with [a] partner than to sit alone,” (tav lemeitav tandu mi-lemeitav armelu) and “A woman is satisfied with any [marital] situation” (ihi bekhol dehu niha la). The former statement has consistently been interpreted in light of the latter: “It is better [for a woman] to sit with [any] partner than to sit alone.” These statements presume that it is preferable for a woman to be married to any kind of spouse rather than to be unmarried, because any kind of marriage is acceptable to her. As working assumptions, these statements certainly do not represent the full range of women’s voices on these topics. It should be noted that Resh Lakish’s statement, in and of itself, is totally neutral—both men and women may prefer to be with a partner rather than be alone. We do not have the original context of the statement, since it is always quoted “… like Resh Lakish who said …” However, it has been consistently used by the Talmud to express the willingness of women (but not men) to accept even unsavory marital situations. This is demonstrated by context and by the fact that in three of the five places in which it occurs, the second, anonymous statement, “A woman is satisfied with [any] marital situation,” accompanies it.
These statements remain the basis of rabbinic action concerning marriage and divorce. They were given a different, more dangerous, status by R. Joseph Dov Soloveitchik, considered one of the major poskim of the twentieth century. In 1975 he wrote that even the legal presumptions of the rabbis are not given to change, because they represent the metaphysical aspects of human existence. In his opinion, the rabbis’ problematic statements represent existential truth and are connected with the curse in Genesis 3, “Your desire shall be to your husband.” Contrary opinion is not entertained, as it has no existential legitimacy even though the husband may be an abuser, drug addict or pedophile.
R. Emanuel Rackman sought to expand the list of the husband’s ailments to include psychological impairment as a basis to allow the rabbinic court to force the man who was unwilling to divorce his wife to do so. R. Moses Feinstein, the major American Halachic decisorposek, relying on R.Isaac Elhanan Spektor, said that in any situation in which a Lit. "house of judgement." Jewish court of lawbet din would rule to compel (kofin) the husband to divorce, the concept of “It is better to sit with [any] partner …” is suspended. R. Rackman included in his list of conditions such things as physical, sexual or emotional abuse by the husband of the wife or the children, which in a purely civil setting would be more than adequate reason to grant divorce to the woman. R. Rackman also sought to include the case in which the husband refused to grant his wife a divorce out of pure vindictiveness or in order to force her to pay him to give her the get or to give him favorable conditions in custody issues or in any aspect of the financial settlement. His claim was that such a man was basically not functioning in the intended The legal corpus of Jewish laws and observances as prescribed in the Torah and interpreted by rabbinic authorities, beginning with those of the Mishnah and Talmud.halakhic framework of marriage and did not marry with the intention of acting according to halakhah. Consequently the marriage was “in error” (mekah ta’ut) and therefore invalid from its inception and could be annulled (hafka’at kiddushin), releasing the woman from the invalid marriage. He also claimed that no woman would enter halakhic marriage if she knew that the man could misuse halakhic privilege and prevent her from divorcing. This, too, was a marriage “in error” and was invalid from its inception. R. Rackman founded a bet din whose sole aim was to grant divorces to women whose husbands had withheld the writ of divorce from them or to nullify the marriage from its inception (hafka’at kiddushin).
Susan Aranoff has outlined the principles of R. Rackman’s bet din: 1) The presence of a salient defect unknown to the bride implies that the acquisition (The act whereby a person voluntarily obtains legal rights over an object.kinyan) of a woman never occurs with full consent unless all possible conditions are taken into account. The list of salient defects is to be expanded beyond impotence, homosexuality, insanity or conversion out of Judaism to include physical, sexual and emotional abuse by the man of his wife or their children; the additional requirement, that the woman leave the marital residence immediately upon discovery of such a defect, should be disregarded because it often takes time for women to collect the necessary resources for their (and their children’s) escape. Moreover, leaving the marital residence may jeopardize a woman’s legal claim to property; 2) If the woman is unaware of the essential impotence of the bet din in matters pertaining to divorce, it is a case of mekah ta’ut; 3) If a woman is unaware that her person is unilaterally acquired by the man and only he has the right to release her from marriage. For R. Rackman these are grounds for annulment. He maintained that the easiest way to get out of a marriage is to demonstrate that the man who refuses to give a get is a sadist and that this is to be considered a character disorder which was probably present from birth. This, of course, rests on the assumption that sadism is a genetic trait or some moral defect comparable to original sin and not a learned social response. For those reasons R. Rackman believes a bet din can legitimately annul the marriage.
His action created great dissension in the rabbinic world, chiefly on the basis that R. Rackman had no right to add to the talmudic list which was considered complete and that by doing so he was creating a situation in which the husband did not truly agree to the divorce and the resulting get issued by the court was thus invalid (get me’useh). In the cases where R. Rackman’s court nullified marriages, the claim was that he misused the halakhic criteria for nullifying marriage. The ultimate result would be that such women would not be truly divorced (or single in the case of hafka’at kiddushin) and a subsequent remarriage would constitute adultery, making any children of that subsequent marriage bastards according to Jewish law. Further conflict arose in reference to registering such women for subsequent marriage. Despite the fact that R. Rackman’s intentions were to protect women (and children) in abusive marriages and that he maintained that the husband’s refusal to grant his wife the get can be construed as emotional abuse which should be grounds for divorce, the majority of voices in the halakhic world spoke strongly against him and his bet din. Rabbinic courts throughout the world remain adamant about keeping the privileged position of the man in marriage and his sole right to divorce. It has been well documented that rabbinic courts in Israel and elsewhere make decisions favoring men because they are more concerned about maintaining male religious privilege than about the welfare of women and children in the marriage. Some Orthodox rabbis have even gone so far as to claim that the desperate situation of women who have been denied a get is well enough publicized so that all women go into marriage forewarned of their dismal prospects in the event of their desire for a divorce and therefore the concept of lack of consent is irrelevant.
Each year there are a number of cases in which Orthodox rabbis in Israel and elsewhere declare a marriage invalid from its inception (i.e., declare hafka’at kiddushin), but these acts are not publicized in a manner that makes them available for other rabbis to use as precedents. According to R. Moses Feinstein’s family, he annulled far more marriages than mentioned in his Halakhic decisions written by rabbinic authories in response to questions posed to them.responsa and R. Tendler has annulled hundreds of marriages, either when these were not Orthodox or on the basis of a flaw in the marriage ceremony. Failure to inform the public of such decisions results in piecemeal solutions rather than comprehensive halakhic solutions. In contrast, the main court of the Conservative Movement declares about twenty marriages per year as invalid from their inception.
The fact that a woman is disadvantaged in her ability to divorce creates a power differential and gives the man an emotional advantage in the marriage relationship, often forcing the woman to modify her behavior towards him and teach her children to do so because of his halakhic privilege. Halperin-Kaddari notes that expectations about the division of labor in marriage are constructed along the very traditional lines of the man supporting the woman and the woman bearing and caring for children and the household according to halakhah. Even elements which appear egalitarian, such as mutual respect, are formulated in a manner that recognizes the superior social and legal position of men and the double standard in reference to adultery is kept firmly in place (where sexual relations outside of marriage by a married woman always constitute adultery but for a man only relations with a married woman constitute adultery). She further claims that even in situations where divorce is not an issue, the inequality of the normative marriage laws impact on the personal relations and the woman’s sense of self. Women internalize their disempowered status and as a result are rendered voiceless; this in turn influences, in opposite ways, the male and female children who witness their mother’s powerlessness.
Over the last two hundred years, various solutions have been put forth to prevent get abuse. When civil law in France allowed men to divorce civilly without requiring a get, some rabbis proposed conditional marriage, which was forcefully rejected by other rabbis. Abraham Freiman (1889–1948) published a summary of all attempts made in the twentieth century by the Orthodox to solve these problems. These include renewing the rabbinic authority to annul marriages (hafka’at kiddushin), combined with conditions in the marriage contract, a get written at the time of marriage, and conditional Writ of (religious) divorcegittin. All the attempted solutions have failed because of lack of a consensus among the rabbis.
From the time that unilateral acquisition of women by men became the model for kiddushin, the inherent defects of the process were obvious. From the earliest rabbinic sources, women suffered from this defective system and those who fled the marriage were declared rebellious and were subject to loss of ketubbah (see Moredet). The difference between the modern situation and the classical situation is one of widespread publication of the problem and attitude of rabbis. Several books and scores of articles have been written on the injustices inherent in kiddushin through acquisition, as well as many defending male halakhic privilege and women’s halakhic disadvantage in an apologetic manner. Pinhas Shifman (Tova Cohen, 2000) claims that equality is not a value the religious courts want to develop. The religious court judges seem to feel that preserving the patriarchal values of the halakhic system is more important than equality. Anything which weakens the power of the man in the divorce process, such as the woman’s claim that there is no possibility for Lit. "peace of the home." Reference to domestic harmonyshelom bayit (domestic harmony) or that she will be impoverished by the husband’s demands, is seen as illegitimate. Religious courts, modeling themselves after civil courts, maintain distance from the claimants and do not feel the urgency of the women’s plight. Similarly, the rabbis do not recognize as a halakhic problem the situation wherein the woman is forced to give up a significant amount of property simply as an inducement to obtain her husband’s agreement to give a get. Shifman attributes this lack of recognition to a mistaken dichotomy between secular and religious values. Generally the honor of a woman and her freedom are considered secular values while the prohibition against adultery or the sanctity of the family are considered religious values. According to Shifman, however, the honor of a woman and her freedom are also, in truth, religious values. Noam Zohar also claims that halakhah must be ethical and that in the case of the inequities of the marriage and divorce laws halakhah must be challenged to change for everyone’s benefit.
In the 1960s when Ze’ev Falk attempted to find justice for women who were being denied their get, the Chief Rabbis of Israel claimed that they no longer consider themselves sufficiently powerful to push the boundaries of the halakhic framework, that democratic values prohibit corporal punishment used in the Talmud, and that ostracism is of limited value in a pluralistic society which does not uniformly accept halakhic values and rabbinic authority. This stand resulted in acceptance of the status quo on their part. Even in Israel, where civil sanctions have been in place since 1995, rabbinic courts do not make adequate use of these sanctions. Women working as to’anot, paralegals representing women in divorce cases in the rabbinic courts, claim that there are many instances in which the sanctions should be applied even when the position is that the man is obligated (hiyuv get) to divorce (i.e., not only when compelled to divorce, kofin) (Tzippi Finkelstein). Finkelstein claims that even the special rabbinic courts established to deal with agunot are inadequate because most cases still take too long. There is not enough pressure exerted on the system to find halakhic possibilities to release the woman; it is simply easier to encourage the couple to come back after they have settled the terms of the divorce agreement, including its financial arrangements. The sanctions used today are the modern version of those applied in the medieval period to men who refused to give their wives gittin, such as refusal to give the man an Lit. "ascent." A "calling up" to the Torah during its reading in the synagogue.aliyah in synagogue or to let his children study in school or to do business with him. Today’s version includes refusal to allow the man to leave the country, refusal to grant a driver’s license or professional licenses, and banking limitations. Finkelstein suggests that there should be a mediator in each case who would decide whether there is any possibility of shelom bayit. If there is no possibility of reconciliation, she believes that the man should be compelled to give the get and sanctions be applied in the event of his refusal.
Some claim that the failure of rabbinical courts to apply such measures is due to the reluctance on the part of rabbinic authorities to do anything which might in some manner force a man to give the get, lest this make the divorce invalid and subsequent marriage adulterous. Others claim that the rabbinic court system is out to maintain its importance and will do nothing that will infringe upon the inherent male privilege in halakhah.
R. Ratzon Arusi, who specializes in Jewish law at Bar-Ilan University, enumerates five reasons why there are still agunot today, and why women are exploited and may wait years before obtaining the divorces they request: 1) growing materialism, making the position taken by the Rosh and Rabbenu Tam (that the woman wants a divorce because she has set her eyes on another man) more likely to be accepted as the cause of marital dysfunction; 2) secularism; 3) using the framework of the religious or civil court to weaken the opposing side; 4) difficulty in reaching agreements due to the decree of Rabbenu Gershom (requiring the woman’s consent to receive the get); 5) and the part played by the Lit. "house of judgement." Jewish court of lawbattei din and religious judges. R. Arusi does not refer to other reasons: religious judges are fearful of making decisions in cases involving divorce and agunot lest they be the cause of increasing the number of bastards in the world if their decisions are incorrect. The judges tend to make legal decisions only according to the majority of the poskim, which is especially difficult on the issue of Woman who cannot remarry, either because her husband cannot or will not give her a divorce (get) or because, in his absence, it is unknown whether he is still alive.agunah; the judges sit very short amounts of time on individual cases, requiring the couple to return to the court several times with renewed arguments, thus creating tension. Most basic is the division between religion and state, in which the secularists feel that the way to change halakhah is to reduce its authority, while the rabbinical reaction is one of great conservatism, making it unlikely that they will do anything radical, such as enacting decrees or annulling marriages. R. Arusi also ignores the defect inherent in kiddushin by kinyan.
R. Arusi suggests that if we want a solution to depend on rabbis and Torah she-bi-khetav: Lit. "the written Torah." The Bible; the Pentateuch; Tanakh (the Pentateuch, Prophets and Hagiographia)Torah sages, that is, those who are duly appointed by Israeli law to make the decisions in divorce cases, we must take into account the causes of aginut mentioned above and create solutions in tune with those causes. He suggests that due to the tension between state and religion, the rabbis are particularly sensitive about the views of the secular majority. Only through the power of halakhah, commentary on it, and decisions about it, will a solution be found. Like Finklestein and others, R. Arusi believes that if the sanctions allowed by the 1995 Israeli statute were used even in cases where the decision is only to require a get (hiyuv), they could prevent aginut. He refers to the success of the special bet din in dealing with difficult cases of aginut. However, only cases which have been in the courts for years are referred to this special bet din, which disregards the hardships of the women in the interim. According to R. Arusi, we need only establish the regular use of this court, since the rabbinate would be happy to deal with any case which might possibly lead to aginut. This court deals intensively with each case until the get is given. R. Arusi suggests appointing an overseer of all divorce files. If there is any suspicion of aginut or if refusal to grant a get is found in any of the files, those cases should be referred to the special court. He argues against the proliferation of legal bodies dealing with the issue of divorce, claiming that in a situation where there are several courts which could have a stake in the divorce process, the bet din cannot work effectively. R. Arusi notes that some rabbis even claim that civil marriage has halakhic standing and would require a get le-humra (a writ of divorce required as a measure of added stringency) in order to allow remarriage. According to such rabbis, the problem of mamzerut still exists with civil marriage. This claim is made to keep control over marriage and divorce exclusively in the hands of the rabbis. R. Arusi believes that kiddushin is not only a private issue but also a matter of public concern and is, therefore, in need of communal “sanctification” and sanction. He is, however, assuming goodwill and willingness to cooperate on the part of the rabbinate, an unwarranted assumption in light of the complicity many battei din have shown when dealing with cases of extortion. R. Emanuel Rackman noted that the common divorce situation often makes the rabbi wittingly or unwittingly an instrument of extortion by the husband.
Attempts to formulate a universally acceptable prenuptial agreement have thus far been thwarted. Although there are several versions available (Saul Lieberman Clause, R. Yehuda Dik, R. D. Y. Mishelov, R. Kaminsky, R. Yosef Shalom Elyashiv, R. Zalman Goldberg, R. Shear Yashuv Cohen, R. Israel Lau, R. Jonathan Sachs, R. David Bleich, Na’amat, etc.), not all rabbis will accept such agreements as binding and very few will encourage their use or educate high-school, university and yeshiva/midrasha students about their existence or make such information obligatory at registration for marriage at the rabbinate. Halakhically, prenuptial agreements must be made by the parties with full consent and freely accepted without pressure; otherwise, the agreements or lack of consent render the get invalid (get me’useh). Even the inclusion of fines may be interpreted by some rabbis as coercive pressure sufficient to invalidate the get because it was not given with the total free will of the man. Other rabbis allow the use of fines if it is clear that this was freely accepted at the time of the marriage as part of a prenuptial agreement. There is also a question of whether one can enter into such commitments while the situation is still only theoretical and not actual. Some of the agreements have had a certain amount of value in that couples who signed them did not exploit one another in the divorce situation. The prenuptial agreements are predicated on the idea that an agreement for equitable separation should be obtained before the marriage or before negative conditions prevail. It is critical that the agreements are not tied to giving a get lest they be seen as force, thereby making the get invalid. They must be seen only as encouragement for the man to give the get freely. Some prenuptial agreements provide that, in addition to covering the legal fees, a lump sum be paid to the party who cannot be divorced because of the actions of the other party. Both parties sign such an agreement prior to the marriage and a similar agreement that cancels this initial obligation once the get is received. Other prenuptial agreements provide maintenance for the entire time that the get is delayed and prevent access by the man to the wife’s income. If there is no desire to fulfill conditions of the prenuptial agreement, the man or woman can find a rabbinic court which will refuse to adjudicate according to the prenuptial agreement.
Women who marry without such agreements are at the mercy of their husbands and the rabbinic courts. Diane Kriger notes the geonic usage of “condition subsequent” in the manumission of slaves, a paradigm which may allow the introduction of conditions subsequent to marriage, before or during marriage. Such conditions, especially if considered universal Regulation supplementing the laws of the Torah enacted by a halakhic authority.takkanot (decrees) of the courts, may create a more equitable situation in existing marriages. The prenuptial agreements which demand of the civil court to refer the couple to a Lit. "house of judgement." Jewish court of lawbet din have encountered difficulties in the United States on grounds of separation of state and religion. Even the recent Israeli successes of Advocate Susan Weiss in suing for civil damages to recoup money given up by the woman in order to receive her get and for maintenance during the time she was denied her get, have been limited and do not give hope to the thousands of women subject to this exploitative situation.
Outside Israel, several countries have created legislation which prohibits granting the civil divorce decree to the one seeking it until impediments to religious remarriage have been removed, i.e., giving or receiving the get. The solutions are not foolproof, because the The legal corpus of Jewish laws and observances as prescribed in the Torah and interpreted by rabbinic authorities, beginning with those of the Mishnah and Talmud.halakhic privilege of the male still prevails. If he is not interested in the civil divorce decree, he is still able to have a relationship with another (single) woman without worry about adultery or bastard children, which is not the case for the woman. Civil legislation has prevented some get abuse but it has not solved the problem. The tendency to wait for civil intervention in order not to touch the halakhic system has, however, deepened the divisions among Jews, encouraged the rejection of The legal corpus of Jewish laws and observances as prescribed in the Torah and interpreted by rabbinic authorities, beginning with those of the Mishnah and Talmud.halakhah, increased the pain and suffering of thousands of women and children, created mamzerim and forced Jews to rely on Gentile courts for redress of wrongs caused by the Jewish legal system. Such solutions are embarrassing and are less likely to be enacted in Israel, where final divorces are always granted by the rabbis themselves. In this case the halakhic system itself must be changed. This could be accomplished by rabbinic decree of abandoning marriage by acquisition and replacing it with a different, egalitarian system, which would preserve the basic tenets of marriage such as fidelity, mutual responsibility to the partner and responsibilities to the children. If the rabbinic authorities are unwilling to change halakhah to create a moral system, it should be done by civil legislation.
The general process wherein a woman seeks a get for such reasons as abuse, is to go to the Lit. "house of judgement." Jewish court of lawbet din, inform them of her desire and need to divorce, and request that the bet din summon the husband to court. The husband often fails to appear. A second and third summons are then sent out, usually resulting in a significant delay. Afterwards the woman may request the bet din to issue a seruv decree (a classification of refusal to respond to a court order). The bet din may claim that the initial summons was not an official court order but only a letter of intent, and is not official, and that they do not issue seruvim in such a situation. No public pressure can be applied unless there is a seruv. The rabbis often suggest that she offer inducement to her husband to give her a get without acknowledging that this is rabbinic collusion with an unjust system. Rabbis often agree that women get a better deal in the civil court in terms of financial settlement and custody arrangements. If the adjudication has begun in the bet din the woman may go to civil court only if the bet din actually gives its explicit permission. Going to civil court without such permission results in situations in which some rabbis are willing to allow the husband to remarry on condition of the agreement of a hundred rabbis (heter me’ah rabbanim) without granting the previous wife a divorce (Halperin-Kaddari).
It should be noted that despite the fact that the Lit. "house of judgement." Jewish court of lawbattei din send their representatives throughout the world to attempt to convince recalcitrant husbands to release their wives, there are still thousands of mesuravot get (refused divorce) and me’ukavot get (impeded divorce) in Israel (an estimated 10,000 in Israel and a similar number in the state of New York) and many thousands in the rest of the world. When the man holds all the power and the rabbis are adamant in keeping that situation entrenched, women have very little reason to have faith in the The legal corpus of Jewish laws and observances as prescribed in the Torah and interpreted by rabbinic authorities, beginning with those of the Mishnah and Talmud.halakhic system or keep faith with it. In addition to a marriage which is no longer viable, women often face a religious crisis when they see the powerlessness of the bet din in the face of an unwilling husband, or even worse, the complicity of the bet din with such a husband. Halperin-Kaddari claims that there is in Israel a further, unexpected consequence. Civil law and civil courts tend to back extortion by males because they make property division conditional on a divorce agreement in which men have greater power. This systemic support for halakhic norms results in reduced civil exit access for women. Several Israeli legal decisions reflect the refusal of the courts, including the Supreme Court of Israel, to annul agreements in which women gave up all property rights and sometimes even maintenance only in order to obtain a get. This was not considered oppressive, because of the belief that if a woman wants a get, she must pay. In Jewish law the husband possesses the right of usufruct over the woman’s property and has management responsibility for it; this in turn creates an assumption that all property is the husband’s. Halperin-Kaddari suggests that we return to the contractual aspects of kiddushin and create new conditions which would include women’s voices and more accurately reflect women’s reality.
Once the system of marriage and divorce has been entered, the result is inequality. This inequality plays out in limitations placed on women who suffer from it and upon the children of marriages who see a system of inequality and its players as their role models. The inequality reaches its nadir in abusive marriages and in marriages which simply are not working but which recalcitrant men nevertheless refuse to end. Outside of Israel no civil solutions can be called upon unless the issue reaches civil divorce courts. If men choose not to divorce civilly, they can, without impediment, halakhically leave their spouses hanging because of their desire for revenge or the hope of a better financial settlement or custody arrangement. The rhetoric which conflates ideas of kedushah (holiness/sanctification) with acquisition (The act whereby a person voluntarily obtains legal rights over an object.kinyan) and ignores the tremendous legal disabilities of women participating in marriage by acquisition and the repercussions of kinyan, misrepresents this defective system. This is not to say that Jewish marriage with its ideals of fidelity, harmony and family is not desirable but rather that when that relationship is accomplished by acquisition of one human being by another it is inherently flawed.
ELIMINATING THE PROBLEM
R. Meir Feldblum claims that today there is a dispute among the poskim as to whether existing The legal corpus of Jewish laws and observances as prescribed in the Torah and interpreted by rabbinic authorities, beginning with those of the Mishnah and Talmud.halakhic models may be expanded. It is therefore doubtful whether the solution will come from such a rabbinic mindset. R. Feldblum believes that the concept of acquisition of a woman is inappropriate both in a secular and a modern religious society, and must be uprooted from The legal corpus of Jewish laws and observances as prescribed in the Torah and interpreted by rabbinic authorities, beginning with those of the Mishnah and Talmud.halakhah. Just as the laws regarding Hebrew maidservants are no longer applicable, so, too, the wife must not be chained to her husband.
R. Feldblum outlines three types of kiddushin: 1) Torah she-bi-khetav: Lit. "the written Torah." The Bible; the Pentateuch; Tanakh (the Pentateuch, Prophets and Hagiographia)Torah kiddushin, which is the normal and problematic variety as defined in Tractate Kiddushin 1:1; 2) rabbinic kiddushin, which does not have biblical validation but for which a get is required, as in the case of marriage with a deaf mute; and 3) derekh kiddushin, which has neither biblical nor rabbinic validity but is nevertheless not considered fornication. This occurs in the case of a minor girl whose father has died and whose mother or brother marries her off, a right biblically limited to the father. Sexual relations between this girl and her “husband” are considered legitimate but no get is required to break off the relationship while still a minor. The Rabbinic authorities/halakhic decisors/ biblical commentators of the mid-11th to mid-15th c.. The period of the rishonim followed that of the geonim and preceded that of the aharonim.Rishonim added to this category a girl whose father had traveled to a foreign country and who was betrothed by her mother or brother. The basis of this particular status has to do with the fact that in the case of a minor, deaf mute or mentally incompetent person there can be no absolute consent. No get is required and because of the structure of the “marriage,” which includes blessings and the expectation of monogamy on the part of the female, the sexual relations are not considered fornication. In contemporary discourse, however, sexual relations with a minor constitute statutory rape, pedophilia and child abuse. Feldblum also fails to relate to the fact that this type of marriage becomes legally valid when the girl comes of age and that severing the relationship through me’un (marriage refusal declaration) must be done by the girl before the appearance of two pubic hairs.
R. Feldblum proposes that a variation of derekh kiddushin which does not include The act whereby a person voluntarily obtains legal rights over an object.kinyan be universalized. His argument is based on the fact that the majority of secular Jewish women do not understand that they are being acquired through kinyan, including acquisition of their bodies and the resulting unilateral power in the man’s hands.
R. Feldblum suggests that the witnesses be secular and changes the formula from “you are consecrated to me” (mekuddeshet li) to “you are designated to me” (meyuhedet li). This formula verifies that there is no desire to have biblical kiddushin and would serve as a sign that the preferred mode is derekh kiddushin. Refuting R. Arusi, R. Feldblum argued in favor of the initiation of the process by women and urged women’s organizations to take the stance that women will marry only according to derekh kiddushin without acquisition (kinyan), so that it becomes policy. Derekh kiddushin is not concubinage, nor is it fornication or prostitution. It is neither biblical kiddushin nor is it rabbinic kiddushin. It is a mode of marriage which we can celebrate and bless. He justifies the use of the traditional blessings at the bridal canopyhuppah (marriage canopy) since they are blessings of praise rather than blessings on fulfilling a commandment. R. Feldblum encourages a project to be undertaken in which rabbis will critique the formulas used and improve upon them. It must be noted that R. Feldblum did not describe the process of terminating derekh kiddushin. Perhaps he intends that there be an accompanying contract which would outline procedures for dissolution of the relationship. He does recommend keeping the normal Marriage document (in Aramaic) dictating husband's personal and financial obligations to his wife.ketubbah as part of the ceremony. According to him the possibility of following standard divorce procedure exists with derekh kiddushin. The woman begins with a regular divorce process, but if the husband stalls or refuses to provide a get, she has a way out because there was no kinyan. It should be noted that this is an attempt to keep existing structures in place when they are being used properly. Although this may meet the need perceived by some to have a get in hand if such a marriage breaks down, it may be counterproductive in introducing his comprehensive solution.
R. Feldblum envisions the rabbinate being involved in the marriage process by establishing who can marry whom, so that there will be neither intermarriage nor civil marriage. He envisions the positive experience of traditional kiddushin but without the disabilities inherent in acquisition. This would eliminate claims of be’ilat zenut (fornication) and yet allow blessings to be made. Because there is no unilateral acquisition in derekh kiddushin, the woman can escape the legal disadvantages which result in aginut and the subsequent possibility of mamzerut: if the husband refuses to give a get, the marriage could be legally dissolved without him. Using derekh kiddushin prevents the acquisition of women, the potential for misuse of power by unscrupulous men and complicity with the rabbinate in that misuse of power, maintains a positive Jewish ceremony, draws secular Jews closer to tradition at a high point in their lives and ultimately prevents hatred and scorn of the rabbinate by those who recognize its powerlessness or unwillingness to eliminate exploitation and extortion. He believes that within five to ten years derekh kiddushin will be accepted.
Harry Fox (leBeit Yoreh) and Tirzah Meacham (leBeit Yoreh) propose a somewhat more comprehensive solution. Kiddushin was considered by the rabbis to be established biblically by the verse in Deuteronomy 24:1 “If the man acquires a woman and has intercourse with her …” In such a case, the laws concerning divorce stated in the continuation of this passage would be applicable. Today it would be possible to challenge such an interpretation as being overly gender specific. If, however, a man and a woman mutually contract a relationship including monogamous sexuality, mutual obligation and support, cancellation of vows, the raising of children, a mode for termination of the contract, etc. which is not based on the unilateral acquisition of a woman by a man, the laws concerning divorce stated in Deuteronomy as traditionally interpreted by the rabbis would not be relevant. By legally contracting monogamous sexual relations, sexuality is removed from the realm of prostitution or fornication and leaves us with the same level of certainty concerning paternity as marriage. By putting in clauses concerning financial support, child rearing, redemption of captives, medical expenses during illness and burial, cancellation of vows, the expectations of a normal married relationship are addressed. By specifying modes for adjudicating the end of the contract should the relationship break down, addressing issues such as child custody and division of property, a time frame for Lit. "peace of the home." Reference to domestic harmonyshelom bayit, and perhaps even designating an adjudicating body willing to accept the terms of the contract, the potential for extortion which exists in unilateral kiddushin could be avoided. Such a contract may be a rather severe document to be read at a festive occasion when the last thing on the couple’s mind is a breakup. No business contract, however, would be entered into without clearly stating the process for terminating it.
Rhetoric has been used to misrepresent the acquisition of women, by referring to kiddushin as a holy act and connecting to it concepts of kedushah and the stability of the Jewish family, community and halakhic Judaism. The acquisition of human beings should never be dignified by such concepts as “sanctification” or “marriage.” Just as we would not dignify the institution of slavery by making claims of benevolent mastery and protection of the weak and disadvantaged, so too, we should avoid creating euphemisms around an institution which holds thousands of women worldwide as prisoners. Some fear changing the halakhic system but would resort to violence against a recalcitrant husband, or would agree to the extortion in order to prevent the personal tragedy of aginut or force women to suffer for years.
The solution of contracting “marriage” or an intimate long-term relationship without acquisition need not imply that a significant section of rabbinic literature has been discarded. It should not be difficult to construct a halakhic framework which would allow as the norm mutually contracted marriage as opposed to the acquisition of a wife. This would not, in fact, even be an abrogation of biblical law, as such law offers numerous modes of marital connections. Rather, it would enact an alternate system which had no immediate reference to the marriage and divorce laws established by the rabbis other than to ultimately relegate them to a particular, remote situation when acquisition of a wife was the norm. Although the concept of pilegesh (concubine or consort) existed biblically, as stated in Genesis and the Book of Judges, the negative connotations of concubinage have deterred the usage of this established mode of contracting a relationship. This situation is exacerbated by the modern translation of pilegesh as “mistress” with its connotations of transiency and sexual relationships outside the framework of marriage as acts of disloyalty to that marriage. Various scholars and rabbis, including Ze’ev Falk and Zvi Zohar, have proposed reinstating the use of this model. Such a mutually-agreed-upon contract fits none of the traditional models but takes the best aspects of them and wishes to embody them in law. Zvi Zohar has recently claimed that the rabbinic objection to the pilegesh relationship is based on concern about keeping the laws of Menstruation; the menstruant woman; ritual status of the menstruant woman.niddah, not on the legal status or validity of such a relationship.
Jewish marriage ceremonies and documents have changed and evolved scores of times even after rabbinic sages privileged one particular contract over and above the large variety available from the Bible and through the Second Temple period. A contract which lays out obligations of the partners to one another in a general way, but is open-ended to allow the possibility that work could be defined in various ways (for instance, childrearing as work that may be shared, or during certain periods may be chiefly the province of one partner), would relate to the obligations laid out in Tractate Ketubbot. The ketubbah itself, revised as a bilateral contract, could be used as a model of sorts in which the resources brought into the marriage by both parties are enumerated and guidelines for their division in the event of a breakup are established. It would also be possible to designate a court to adjudicate the breakup process and set the time limits for the case to be adjudicated. The bilateral contract below rejects all notions of kinyan, meaning that all the rabbinic laws concerning marriage and divorce do not come into play. The idea of sanctification used in the contract below is not in any manner to be interpreted in the traditional sense as a sign of kinyan or an action toward that end. The only abrogation possible of this document (aside from its elements of the inheritance and ongoing obligations) is by death of the parties involved or by divorce in accordance with its terms of agreement.
A Marriage Contract
At an Auspicious Time and with Good Luck
On the ___ day of the week, the ___ day of the month of _____, ____ anno mundi according to the traditional calendar here in the city of ____, we the undersigned, the bride _____ , daughter of _____ and ____of the family _____, and the groom _______ son of ____ and ______ of the family ______, stood up and sanctified each other. I, the bride, ____ said to ______, the groom: “Behold you are sanctified to me without kinyan, according to the law of Moses and Israel”; I, the groom, _____ said to ______, the bride: “Behold you are sanctified to me without kinyan according to the law of Moses and Israel.” We have agreed that no subsequent gift or money equivalent, or money, sexual act or document inadvertently or intentionally using the language of kinyan will constitute kinyan for the sake of marriage whether witnessed or not.
We have agreed to live together as a family in love and peace, in an appropriate manner and with purity [of intention], according to the law of Moses and Israel. We shall work and honor and sustain and support each other in truth and shall fulfill all our obligations to each other contained in [the concepts] of maintenance, clothing and relations.
Concerning any calamity, that should not come upon us, this [document] shall be for us [that] we may keep and meet [our obligations]: We agreed that in the event of the demise of one of us, in an untimely manner, without either male or female progeny, we do not recognize any connection whatsoever [of Marriage between a widow whose husband died childless (the yevamah) and the brother of the deceased (the yavam or levir).levirate marriage or halizah] between the groom’s relatives to the bride, or the bride’s relatives to the groom, whether they presently exist or not.
We agree that both of us have a complete right to divorce the other coercively by writ of divorce (get) even if this writ does not reach the other party. The writ must be written by one of us or by our agent and must be through a court which agrees to adjudicate according to this marriage document and recognizes it as valid in all its details, exegesis and commentaries in reference to ourselves and to our inheritors who may come after us and come with our acquiescence. If such a court cannot be found, we may divorce each other on the basis of a widely publicized [act] before ten witnesses and publication [of such] in a newspaper.
If we are alive and healthy and our residence is known and we have agreed to a divorce, if we have no children we are to wait half a year to [finalize] a divorce and if we have a child we are to wait a full year [to enact] the divorce.
If we are both alive and healthy and our address is known and there is no agreement to divorce, or if one of us is ill, whether with a physical illness or a mental illness, and is unable to agree or disagree to a divorce, or, if one of us is missing for whatever reason and there is no way of knowing if s/he would agreed to a divorce or not, and if there is no child, one should wait a year to [enact] the divorce and if there is a child one should wait two years to [enact] the divorce.
In the event that it is the will of one of us to divorce the other, one must advise the other concerning this in writing, establishing a date from which to count [time] when there is a need to delay for whatever reason the enactment of divorce according to the above-mentioned agreements to attempt a reconciliation or a recovery of health. In the event that one of us is missing, one is to declare such in a court that recognizes the power of this marriage document as mentioned above or if such a court cannot be found [then such notification is made] on the basis of wide publicity before ten witnesses and publication in a newspaper.
We agree that we are prohibited from willingly having extramarital sexual relations and if, heaven forbid, we transgress this agreement, we are obligated to divorce each other immediately.
We agree that we are prohibited from living together in marriage after divorce if marriage to another [occurred] and if, heaven forbid, we transgress this it is necessary to divorce one another immediately.
We agree that we are not permitted to remove one another from place to place against our will and if, heaven forbid, we transgress this agreement, it is possible to divorce one another immediately.
We agree that it is prohibited for one of us to leave our joint dwelling place without the agreement of the other even for the sake of Torah study and if, heaven forbid, we transgress this agreement it is possible to divorce one another immediately.
We agree that each of us has the right to annul the vows of the other which deal with personal restrictions and [sexual] issues between us when they are heard and according to need. And if, heaven forbid, we allow these vows to stand and there is no exemption from them, it is possible to divorce one another immediately.
We agree that there is no necessity to divorce one another in the event that we have no son or daughter after ten years of marriage.
We agree that it is the right of both of us to impose vows and to annul vows for our sons and daughters until the age at which their vows take effect in and of themselves.
We agree that the obligation of redemption of captives, medical expenses, and burial which are incurred or come upon us during our years together, are expenses which are forever upon us and our heirs after us and those that come as our agents whether or not our married life has ceased on the condition that the captive or the ill person has not begun a married life with another and all of this is according to the best of our abilities and above that to the extent of the need and the possible.
We agree that each of us has full initial right to inherit the other. The division of property and matters of inheritance and divorce are according to agreement between the parties, or, equally among the family members, for example, half-and-half to a family without a son or daughter, a third to each family member in which there are three family members and so on. It is permitted to leave only up to ten percent of the joint property to anyone the person wishes without agreement of the other party.
In all issues concerning guarding of our property or the property of our sons and our daughters, the party who is legally able is appointed directly as guardian according to the needs designated in the inheritance agreements and property division [agreement]. A guardian is appointed for the sake of guarding the property for our sons and daughters until the age of eighteen or for any ill person or a captive or a person who has disappeared. The sons and the daughters, the ill person or the captive are supported from their part in the joint property and above that time to the extent of need and possibility. The property of one who has disappeared is kept for twenty-five years with reduction of twenty percent from their portion of the joint property every five years and it becomes inheritable property.
On every blessing which shall come upon us that we are privileged with a son or with a daughter, we shall choose for our family a joint family name. In the meantime and perhaps even afterwards, for other personal needs, it is our desire to retain our own names until now and to be called according to them: the groom, ________, and the bride, ________.
We have obligated ourselves in all the requirements placed upon parents in reference to any future sons and daughters: maintenance, housing, clothing and medical expenses until the age of eighteen and above that according to the need and the possibility, to teach them a profession, to swim, and to bring them to Torah and to the marriage canopy and [the performance of] good deeds.
We proclaim that all our property which is in our possession until now will be considered henceforth as the joint property of both of us and so too all [property] which in the future shall become ours by purchase and by usufruct for all of our life together including the work of our hands, the objects we find, our inheritances and gifts.
We are in total and utter agreement with one another and willingly we have accepted upon ourselves the obligations of this marriage contract in all its details, exegesis and commentaries, both from the side of obligation and from the side of privilege, on us and on our heirs after us. The best and most desirable of our property and our possessions which we have under all of heaven which we have taken possession of by purchase and which we in the future will take possession of by purchase, properties which are guaranteed and with them properties which are not guaranteed, all of them will be a guarantee and pledge for the obligations included in this marriage contract and above that according to need and possibility.
We came to complete agreement on everything written and explained above and it is all legally binding.
Signature of bride:_______ Signature of groom:____________
Bride’s name: Groom’s name:
We are witnesses that the above mentioned groom and bride, ______ and_____, reached a complete agreement on all which is written and explicated above, concur and certify all of the above, and we signed [this document] on the day mentioned above.
Signature of witness:_______ Signature of witness:________
Name of witness
:__________ Name of witness:____________
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How to cite this page
Meacham (leBeit Yoreh), Tirzah. "Legal-Religious Status of the Married Woman." Jewish Women: A Comprehensive Historical Encyclopedia. 27 February 2009. Jewish Women's Archive. (Viewed on September 23, 2019) <https://qa.jwa.org/encyclopedia/article/legal-religious-status-of-married-woman>.