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Marriage

by Batsheva Sherman

Marriage in Judaism

The concepts explicated in this entry constitute the various stages in the Jewish marriage process. These stages have various halakhic and legal implications. The beginning of the marriage process is the stage of shiddukhin, in which the man and woman promise to marry each other in the future. Kiddushin and nissu’in create the legal bond of marriage between husband and wife, the beginning of the bond being established by kiddushin and its completion being accomplished through nissu’in.

Shiddukhin

Shiddukhin is the mutual commitment expressed by the man and woman to marry each other in the future. In modern Hebrew, this stage is called erusin (engagement), while the term shiddukhin is used to refer to the earlier stage, in which the couple are introduced through the services of a third party, the shadkhan or shadkhanit (f.).

Shiddukhin does not affect the personal status of the parties, since it involves only a promise to marry. There is no agreed-upon format for carrying out shiddukhin, but it is clear to both sides that they have promised each other to establish the marital bond; a one-sided promise or understanding would not be sufficient. The common custom is to hold a festive meal and perform some sort of ceremony, such as breaking a plate; as part of the meal, the parties sign a document known as tena’im (conditions). However, even without any ceremony, the publication of an “engagement” announcement in the newspaper, or even the exchange of gifts between the parties, could be considered as shiddukhin.

Even if the two parties signed a document in which they committed themselves to enter into marriage, it is not possible to force compliance upon the party that wishes to break the agreement, since, according to halakhah, marriage is valid only if both parties take part in the ceremony of their own free will. Therefore, it is impossible to force a man to marry a woman, or a woman to be married to a man. However, notwithstanding either party’s right not to fulfill to their promise, the party in breach may be required to pay a fine. The offended party may demand the return of gifts (ring, jewelry, etc.) that were given on the assumption that the couple would marry. The offended party may also be able to claim damages for financial losses caused through reliance on the commitment to marry and the subsequent breach of promise. Such losses may include, for example, the expenditure on the festive meal. The offended party may even claim that they suffered great embarrassment as a result of the breach of the agreement, for which the defaulting party ought to pay a fine.

The party in breach (defaulting party), on the other hand, may claim that the breach of promise and of the agreement to marry is justified. For example, if it becomes clear to one party that the other suffers from a mental illness or some sort of malignant disease, or even if they become aware of an illness in one of the members of the other family—these may serve as grounds for not entering into the marital relationship. Another example of justification for breaking the agreement is if the parents of the other party undertake to provide certain financial support for the couple, and this is not forthcoming.

Kiddushin/Erusin (betrothal)

The act of kiddushin, also called erusin, designates the woman for her husband and makes her forbidden to all other men. The stage of kiddushin is an interim stage; the woman is forbidden to other men, and is designated for the man who betrothed her, but, at the same time, it is still forbidden for them to live together as a couple. One should distinguish this from the use of the term erusin in modern Hebrew, which refers to the couple’s promise to marry each other (engagement).

In the past, it was customary to wait for about a year between the ceremony of kiddushin and that of nissu’in, but this waiting period was abandoned in light of various problems that arose in consequence of the long period during which the woman was designated for her husband, yet was forbidden to him. Today the kiddushin and nissu’in are carried out as part of the same ceremony. Should the couple wish to sign an agreement that keeps the bride’s assets absolutely separate from the groom’s, this must be done between the kiddushin and the nissu’in sections of the ceremony.

Modes of Kiddushin

Halakhah establishes that kiddushin must be carried out “according to the laws of Moses and Israel,” and three modes were established for kiddushin: In the words of the Mishnah: “A woman is acquired in three ways … through money (kesef), through a document (shetar) and through sexual relations (bi’ah)” (Mishnah, Kiddushin 1:1). In kiddushin through money, the man gives the woman, in the presence of two witnesses, money or some other object, such as a ring. The money or other item has to be valued at no less than a perutah. In kiddushin through a document, the man gives the woman, in the presence of two witnesses, a document in which is written “Behold you are mekuddeshet (sanctified) to me through this document.” In kiddushin through sexual relations, the man says to the woman, in the presence of two witnesses, “Behold you are mekuddeshet (sanctified) to me through this act of bi’ah,” and then, in the witnesses’ view, the couple sequester themselves for the purposes of kiddushin, during which time the man has sexual relations with the woman. The Sages forbade kiddushin through sexual relations because it seems tainted with immodesty. They also avoided the use of a shetar because of the complex procedure for writing the document and handing it to the woman, akin to the procedure for preparation and delivery a of get (bill of divorce). Therefore, it has become customary to carry out kiddushin only through money (or a ring). It is only in exceptional circumstances that the other possibilities for kiddushin are considered.

Legal Consequences of the Act of Kiddushin

We have already noted that the legal consequence of the act of kiddushin is that the woman becomes forbidden to all other men, and is designated for the man who betrothed her. The woman cannot be freed from this man, except through divorce (receiving a get) or through his death. In the words of the Mishnah, “And she acquires herself in two ways … through divorce or through death of the husband” (Mishnah, Kiddushin 1:1). The prohibition against the woman having sexual relations with another man is a strict prohibition derived from the Torah: the woman is deemed an adulteress and her children by this man are deemed mamzerim (bastards). Although according to Torah law a man may marry more than one wife, under a ban (herem) issued by Rabbenu Gershom (Rabbi Gershom ben Judah Me’or Ha-Golah, c. 960–1028) in the eleventh century, a husband could not take an additional wife unless he divorced his first wife or she died. The same herem also forbade a man to divorce his wife against her will. However, relations between the husband and another woman are not considered adulterous in the halakhic sense (unless she is married) and his children by a woman other than his wife are not considered bastards. The herem was accepted as binding among Ashkenazi communities but not among the Sephardi and most of the Oriental communities.

Upon the act of kiddushin, the obligations of a married woman apply to the woman, but her rights as a married woman do not apply until after the nissu’in. Therefore, the woman is not permitted to her husband until after nissu’in, and, similarly, she is not entitled to support from him, nor does she inherit him. And if he divorces her, she does not receive her ketubbah payment. Furthermore, if the couple decide to separate, she requires a get from him.

The act of kiddushin is carried out by the man, and the function of a rabbi, a mesader kiddushin, is not essential for the kiddushin itself. Although it is impossible to force a woman to marry a man, she is a passive participant at the time of kiddushin, and, unless she expresses her opposition to the kiddushin, it is valid. Various problems arise in consequence of the ease with which kiddushin can be carried out, since it is sufficient for a man to pronounce the traditional formula (mentioned above) to a woman, and to then give her an object worth a perutah for the purposes of kiddushin, in the presence of two witnesses, for the kiddushin to be valid, and for the woman to require a get should she wish to be freed from this relationship. Some of the common cases of problematic kiddushin found in Jewish legal sources are: “secret kiddushin,” in which the man claims that he secretly betrothed the woman in the presence of two witnesses; fraudulent kiddushin, in which the man hires two false witnesses to testify before the court that they saw him betroth the woman; “frivolous kiddushin,” in which the kiddushin was performed light-headedly, almost as a game, often by young people, who only afterwards find out that the kiddushin is valid; or “snatched kiddushin,” in which the kiddushin is carried out in such a way that, when the man gives an unmarried woman an object of suitable value, he pronounces the required formula and she has no opportunity to object.

Nissu’in

As noted above, the ceremony of nissu’in is today carried out together with the kiddushin-erusin ceremony. The nissu’in ceremony finalizes the legal status of the couple and ordains that the two of them may live together in order to establish a family. In the act of nissu’in, the groom brings the bride into the huppah (bridal canopy) and, with both of them under the huppah, they become married. The rabbis disagree over what exactly constitutes the “huppah.” Some maintain that it is created by spreading a cloth or a tallit over the two of them, while others hold that the “huppah” is when the woman is brought into the man’s home and they are alone together for the purposes of nissu’in. In order to satisfy all the opinions, it is customary in most communities that the bride and groom spend time together in seclusion after the recitations of the blessings of nissu’in, and this symbolizes their union in their home.

Legal Consequences of the Act of Nissu’in

The Sages saw shelom bayit (domestic peace) as a supreme value. Maimonides states in his Mishneh Torah: “The Sages commanded that a man honor his wife more than himself, and love her as much as he loves himself, and, if he has means, spend for her benefit in accordance with his means. He should not put her in excessive awe of him, his speech toward her should be calm, and he should not be gloomy or bad-tempered.” As for the wife, Maimonides writes: “Similarly, they commanded the wife that she should respect her husband greatly, and that his awe should be upon her.” In order to affirm the idea of cooperation between husband and wife, Jewish law establishes clear principles regarding the obligations and rights of the husband and wife within the marital framework, which go further than these general statements.

The husband has ten obligations toward his wife, and has the right to four things from her.

The Husband’s Obligations Toward His Wife

  • Mezonot: To provide food and support for his wife “according to his wealth” or “according to his honor.”
  • Clothing: To ensure that his wife has suitable clothes; this includes household items, bed linen and dwelling place.
  • Familial relations: To have sexual relations with her on a regular basis.
  • Ikkar ketubbah (the “main” sum of the ketubbah): to pay his wife the sum of 200 zuz (if she was a virgin when they married) or 100 zuz (if she was not a virgin, e.g. if she was a widow or divorcée), in the event that he divorces her. This payment is to ensure that “he should not consider it a light matter to divorce her.”
  • Refu’ah: To pay his wife’s medical expenses, should she become ill.
  • Ransom: To pay such sums as are required to ransom her, should she be taken captive.
  • Burial: To cover his wife’s burial expenses.
  • Should he predecease her, that she be provided for from his estate and be enabled to continue to reside in the marital home after his death as long as she remains a widow.
  • Should the husband predecease his wife, to allow his daughters to be provided for from his estate until they are betrothed or until they reach maturity.
  • To have her sons by him inherit her ketubbah, in addition to what they inherit along with others: Should the husband, after the wife’s death, take another wife and have additional children, the sons of the first wife should inherit their mother’s ketubbah, in addition to their share of the father’s estate, which they divide with their half-brothers.

The Husband’s Entitlements From His Wife

  • Her handiwork: the wife is obliged to perform those household duties that are normally carried out for the family and the home (e.g., laundry, cooking, cleaning, nursing babies, etc.); in addition, any income that the wife earns from her labors belongs to the husband.
  • Found objects: items that the wife finds belong to her husband.
  • Usufruct: the income from the wife’s assets belongs to her husband.
  • Inheritance: the husband inherits his wife.
  • Since the wife’s income passes to the husband in return for his obligation to provide for her sustenance, the wife may stipulate: “I will not claim sustenance, nor will I labor,” that is: I do not wish to accept support from you, nor do I wish to give you the fruits of my labors. In such a case she is exempt from giving them to her husband. Similarly, the husband may say to his wife: “Expend your labors on your own sustenance,” thereby indicating that what the wife earns should remain in her possession. In such a case, the husband would make up any shortfall, according to her needs. However, the commentators disagree as to whether a wife is thereby exempt from doing any labor, or only such labors as generate monetary income. According to the latter view, her obligations with regard to household duties would still remain.

The Husband’s Rights over His Wife’s Assets

Apart from the husband’s rights to the items listed above, he also has rights in the assets that the wife brings from her home. These assets are divided into two categories, with the wife determining into which category each asset that she brings into the marriage will fall. Immovable property is those assets that are listed in the ketubbah as her dowry (nedunyah). These are placed under the husband’s control and, should he agree to take responsibility for them, they become virtually his own property, and he may do with them as he pleases. The following rule applies to these assets: “If they increased in value, he has the benefit, and if they decrease in value, he must suffer the loss” (Mishnah, Yevamot 7:1). The husband is required to return these assets to the wife at the end of the marriage; should the woman be divorced or should the husband predecease the wife, these assets return to her and she is to be compensated for any damage caused to them. Another class of assets is those assets not listed in the ketubbah, and these are called usufruct. These assets belong only to the wife, but the income they generate belongs to the husband. The following rule applies to these assets: “If they increased in value, she has the benefit, and if they decrease in value, she must suffer the loss” (ibid.); that is, the principal belongs to the wife, but the husband may benefit from the income and is not responsible for any damages to these assets.

In general, any monetary obligation may be subject to agreement between the husband and wife. However, the wife’s rights to sexual relations and to the principle of the ketubbah cannot be negotiated, since these are deemed Torah obligations, not financial obligations. From the time of nissu’in the husband becomes the legal heir of his wife and holds rights in her assets. Therefore, if the couple choose to stipulate that the husband will not inherit his wife’s assets, or that the husband will not benefit from the income of her assets, such a stipulation must be made between the kiddushin and the nissu’in. At this stage, although the husband has some powers with regard to the wife’s assets, it is still possible to make conditions regarding them. After the nissu’in, however, the husband cannot change his status as his wife’s heir. All that the husband can do is undertake to waive his wife’s estate and promise to transfer the estate to those who would inherit were he not to do so. With regard to the husband’s rights in his wife’s assets, these rights are acquired at the time of nissu’in, and in order to waive them, it is not sufficient for him to make a simple statement or waiver. Rather, he has to cede them to her through a formal act of acquisition. Therefore, it is essential that any conditions or stipulations relating to monetary matters between the husband and wife be carried out between the kiddushin and the nissu’in.

The Question of “Acquisition” in Kiddushin

The act of kiddushin involves an act of acquisition which, as we have noted, permits the woman to her husband (after nissu’in) and, at the same time, forbids her to any other man. A far-reaching consequence of this action is that the woman cannot free herself from this bond without the acquiescence of her husband. The act of divorce is not dependent on any determination by the rabbinical court, just as the act of kiddushin does not depend on the rabbi officiating at the marriage ceremony, but only on the husband. It is the husband who betroths the woman, and it is only with the husband’s acquiescence that the woman can be freed from the marriage. Serious problems arise when the woman wishes to separate from her husband, while the husband would prefer to maintain the marital bond. Even when the couple come before the court, the court, for the most part, lacks the ability to annul or cancel the marriage. All that the courts can do is attempt to convince the husband to grant his wife a get. Although there are certain circumstances in which the court may rule that the husband is obliged to divorce his wife, and can even compel him to do so, the act of divorce is always carried out by the husband himself.

The large number of “chained” wives (agunot) and women refused divorce (mesuravot get) at present crying out for help to be freed from failed marriages, together with the increasing feminist consciousness of recent years, have focused attention on the issue of kinyan (acquisition) in kiddushin. There is a major debate over this issue: there are some who view the wife as having been “acquired,” and therefore as “belonging” to her husband, almost like a slave to his master. Others believe that the act of acquisition is merely symbolic, and serves as an expression of formalizing the contractual relationship between the couple. Those who see the woman as having been acquired believe that the element of acquisition in Jewish marriage is what causes the woman to remain chained. In their view, should it be possible to solve the issue of acquisition, the problem of agunot would solve itself. However, others see no connection between the problem of agunot and the element of acquisition in kiddushin.

Those who hold that the wife is her husband’s property support their view with the following arguments: the wording of the Mishnah, “The woman is acquired in three ways,” indicates that the woman is acquired property; the similarity between the way in which a slave is acquired and the way in which he is released (through a written document freeing him of his obligations toward his master) and the parallel forms used for a wife indicate a similar relationship between the slave and master, and between the wife and her husband; the fact that, according to halakhah, a father can betroth his minor daughter (under the age of twelve) to anyone he chooses, without obtaining his daughter’s consent or even without her knowledge, indicates that she is some kind of purchasable “object”; the fact that the marital bond ends only with the husband’s acquiescence, and even against the wishes of the wife, indicates that the woman is in fact “bound” to the marital framework as a kind of “object”; the Hebrew language, which uses the term ba’al (master or owner) for a person who has a wife, also hints at the husband’s ownership. Additionally, Judaism does not exist in isolation from the world around; it exists in a world that has been subject to patriarchal control for thousands of years, and if women in other nations have been their husbands’ chattels, one may assume that Judaism also viewed women as their husbands’ property.

Those who hold that the wife is not her husband’s property argue thus: the act of acquisition in kiddushin is solely a symbolic act, through which the act of kiddushin “takes hold” and through which the prohibition of the woman to all other men, apart from her husband, takes effect. This prohibition is a Torah prohibition, and one who transgresses it is sinning against God. The couple cannot waive this prohibition or modify it—it is the Torah that establishes and sanctifies the relationship between a husband and wife. Were this an act of contractual acquisition between the couple, its conditions could be modified, and a party that broke it would be deemed to be in breach of contract. However, the acquisition here is not one of money or property, but one of religious and personal status, i.e., it is a contract whose purpose is to bring about a change in religious or personal status. A further argument is that it does not make sense for the object being “acquired” to be given the money for its own acquisition. Were kiddushin an act of acquisition in which the husband acquires the woman, it would not be the woman who receives the money, but some other individual. Moreover, there is no doubt that a woman’s value is greater than a perutah, while it is sufficient to give her a sum equivalent to a perutah. This would seem to demonstrate that the act is merely symbolic.

An intermediate position holds that Jewish marriage was originally an act of acquisition, but over time became more akin to a contract between two persons of equal status. In the earliest period, the father would give his daughter to the man, even against her wishes, and in return would receive the betrothal money. Subsequently it became accepted that the woman would herself be betrothed to the man, of her own free will, and would receive the money for kiddushin into her own hands. Similarly, the money paid to the woman’s father became the ketubbah, which is an undertaking on the part of the husband to pay his wife that specific sum of money should he divorce her. Further evidence in support of this developmental thesis is that, when one looks at the Tractate Kiddushin, one will see that the concept of kinyan, “acquisition,” appears only in the first chapter of the Mishnah. The later chapters, and the title of the tractate itself, consistently use the more delicate term “kiddushin.

Civil Marriage between Jews

As noted above, Jewish marriage is halakhically valid only if carried out between a man and woman who are both Jewish, in accordance with the law of Moses and Israel. A later regulation requires that the marriage take place in the presence of a minyan, a quorum of ten men. According to Judaism, marriage between two people, one of whom is not Jewish, has no validity. This is what is generally referred to as a “mixed marriage” or intermarriage. However, when both parties are Jewish, but the marriage is carried out in a manner other than in accordance with the law of Moses and Israel (for example, in a civil marriage ceremony), certain problems arise. On the one hand, this is not a marriage as defined by the Sages. On the other hand, it is possible that this marriage should be considered as a marriage through cohabitation, and thus potentially halakhically valid. There are major differences of opinion between the rabbis as to how to relate to these marriages, particularly in those countries in which there was no Jewish marriage, and where the Jews, even if they wished to choose the traditional marriage ceremony, perforce had to accept civil marriage. There are those who require, as a matter of stringency, that a get be given, while others feel that there is no need for a get. However, all would agree that, should the woman remarry without having received a get from her first husband, the children would not be deemed mamzerim.

Bibliography

Elinson, A.G. Nissu’in she-lo ke-dat Moshe ve-Israel. Jerusalem: 1980; Elon, Menachem. The Status of Women: Law and Judgment, Tradition and Transition; The Values of a Jewish and Democratic State (Hebrew). Tel Aviv: 2005; Freiman, A. B. Seder kiddushin venissu’in me-aharei hatimat ha-talmud ve-ad yameinu. Jerusalem: 1964; Hauptman, Judith. Rereading the Rabbis. Boulder, CO: 1998; Schochetman, E. “Mekudeshet, lo kenuyah.” Nekudah 223 (Nissan 5759): 46; Shereshevsky, B. Dinei Mishpaha. Jerusalem: 1958.

How to cite this page

Sherman, Batsheva. "Marriage." Jewish Women: A Comprehensive Historical Encyclopedia. 20 March 2009. Jewish Women's Archive. (Viewed on August 30, 2014) <http://jwa.org/encyclopedia/article/marriage>.

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