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@ S'll Ir MKWREAGE in JEWISH LAW Introduction Last Time We Weré ' fl 1 ‘ @ S‘LL Ir ‘ 1, MKWREAGE IN JEWISH LAW - tum: grad} jk") I.‘/“/'r‘r Introduction Last time we weré concerned mainly XK with the development of Jewish marriage customs through the ages. To-day we shall concern ourselves with lAWS rather than customs, and with the gractical effect of these laWs to-day rather than their nistofic development, tnough we shall have to take an occasional glimpse into the past. General () As we saw last time, among the Jews (as among other peoyles) >: x 0 marriage began by being an act of purchase by the bridegroom or his< rE? bride's But as a higher status was giveA parents fuom the yarents. g .2. to women, marriage became rather a mutual contract, with both partie (0—. undertaking moral as well as financial obiigations. That is evident from the Ketubah which has beeh in use since the Rabbinic period. Moreover the religious aspect of marriage received greater empfiasis. The term Kiddushin suggested that marriage was a sanctified relationship; and the family ceremonies, esRecially after the destruction of the Temgle, tended to make of the Jewish home a kind of miniature temple 1h which the father and mother acted as priest and priestess. Judaism has been almosi entirely free from the attitude of 8.3. Paul according to which celibacy is preferable to marriage. (This attitude is still reflected in the Church of Tngland's "Solemnisation of Latrimony" and in the Catholic Church's insiétence mn the celibacy of the yTiSSt-) The jssenes, who eschewed marriage, were a rare excegtion. Judaism has normally regarded married life as the best life, not the second best. The High Priest had to be a married man. ‘\ 7/“.77 H_V-V_-_~‘_. _- The Rabbis said that an unmarried man was not a full man, that he fact,‘ lived wighout joy, without bleSSing and witnout good. In marriage was regarded by the Rabbis as a religious duty. They based this view on the verse (Genesis 1:28) in which man and woman are commanded "Be fxuitful and multigly". This was taken so literally that a man was sometimes forced to marry if he had not alrea y done so by the age of 20. (18 was regarded as the proger age.) The duty of marriage was considered to have been fulfilled when a man had given birth to a son and a daughter. (Yeb. 61a) Monogamx and Polygamx‘ Polygamy was permitted in Jndaism until the middle Ages, and in some Asiatic Jewish comgunities it is still permitted. It was, of course, always limited by the fact that one had to be fairly rich to afford more than one wife. But in addition there seems to have been a genuine ethical preference for monogamy. This is implied in the verse in Genesis (2:24): "Thgrefore shall a man leave his father and his mother and cleave unto his wife; and they shall be one flesh". Monoéamy is also taken for granted in innumerable bther passages in the Bible and later Jewish Literature. The effect can be seen in this3 that whereas in the Bible many heroes (e.g. Gideon, David, Solomon) were polygamists, 1n the Rabbinic L1teruture there is not a single meption of a Rabbi who had more than one wife; In short, Jewish léw permitted pdl§gamy, but the Jewish religious conscienna virtually forbade it. The New restament is in acoord with Jewish Tradition in deprecating polygamy; without actually forbidding it (eficept in the case of bishops and deacons —.I Timothy 3:2, 12) it emphasises the point more strongly than Rabbinic Literature (matthew 19:5-12). Pnlyzamy was finally forbidden by an edict (takkanah)of Rabbi Gershom ben Judah (born in Metz in 960. died at Mayence in 1040). This edict was almost immedLately accepted in F“anee and Germany. In Italy and Spain polygamy lingered on for another three of four centuries; In Africa a compromise was adopted by which the bridegroom gromised in the Ketubah not to marry a second wife without the first wife's consent. Injifiatic Jewish communities, as already mentioned, ,olygamy is still practised. (This created a problem in the case of the Yemenite immigrants into Israel.) Some traces of polygamy still remain in the system of Rabbinic marriage law. Polyandry was never a Jewish institution, and therefore a married woman can;ot legally marry a second husband. But if a married man marries a second wife, the marriage is still theoretically valid in Jewish Law. (Rabbi Gershom's edict merely makes it necessary for him to divorce her.) Another trace is this. In the 12th century a Rabbinic Synod under Rabbenu Tam (which met at Troyes and Rheims) decreed that A man could marry a second wife if his first wife was insane, though only with the written permission of 100 Rabbis from three different yzovinces. Tums decree has never been repealed in Orthodox Law« The Reform Movement fihally did away with all these vestigial anofialies, especially at the Philadelphia Congerence of 1869, when polygamous marriages were declared illegal in the same way as polyanaous marriages. Prohibited Lhrriages fivery society has certain rules as to who may or may not marry whom. In Jewish Law theré are several categories of yrohibited marriage partners. The first category is based on consanguinity. The Biblical laws on this subject are t6 be found in Leviticus 18:7—17 and 20:11-21 (also in Deuteronomy 22:50, 27:20, 22—23). These are the primary cases of incest, 17 in all. Ihe Rabbis added another 26 "derivative" cases of ificest. (Hamadrich, 7-8) These prohibitions are much the same in English Law. One exception is this. Jewish Law allows a man to marry any niece; English Law does not allow him to marry his brother;s or sister's daughter, though he may marry the daughter of his (deceased) wife's brother of sister. In this case, of course, the English Jew has to abide by English Law, on the princigle that "the of>a Law of the Land is Law". The marriage man with his sister-in- law is a special case wnich will be considered later. Secondly, marriage is forbidden with a mamzer or mamzeret, i.e. a bastard in the syecial sense phat he or she is the issue of an incestuous or adulterous union. fihis is obviously an unjust law, and would certainly be regudiated by Liberal Judaism if the occasion arose. So make it worse, though a mumzer may not marry an ordinary may Israelite (up to the 10th generation:)_he/marry a mamzeret or a proselyte! Thirdly, on the basis of certain biblical passages, Jewish Law forbids marriages with certain races, e.g.lAmmonites, Loabites, Tgyptians, Idumuans. Tgougn this is now ,urely academic, it is clearly objectianable. Fourth, a man may not re—marry a divorced wife if she has meahhhile been married to another man. see Deuteronomy 24:1-4. gnis Matter will be uiscussed at the next meeting. Tifth, ralmudio Law forbids a woman divorced for adultery to marry the co—resyondent. This case will also be disadssed at the next meeting. sixth. the Talmud‘lays down (Yeb. 64b) that a woman twice pidomed (if both husbands died a natural death) may not re—marry at all. ‘his law is clearly unjust and is not accepted in Liberal Judaism. Seventh, the deaf-and-dumb, as well as idiots and imbeciles, are not allowefi to marry on the ground that they cannot legally perform the marriage contract. This harsh law was. however, alleviated by the Jabbis 1n the case of the deaf—and—dumb who were permitted to marry by means of sign—language. Finally‘ there are Special pronibit;ons ayyligable only to a Kohen, a descendant of the ancient griests. he may not marry a prose- lyte. a divorced woman. or a chnitsan-uidow; These prohibitions are, of course, rejected in Liberal Judaism. See Leviticus 21:10—15. One other special case is that of the agunah, the wife of a husband fiho has disagreared. If he has deliberately deserted her. and cannot be traced for the purrose of obtaining a get (bill of divéroe) from him, she may not remarry. Similarly, if he has died - but there is no direct evidence of his death (circumstantial evidence is not accepted) she cannot remarry. Liberal_Judaism allows the agunah to remarry if a civil court declares her free to do so. i.e. if the court grants her a diverge 9n the ground of her husband's desertion, orkif a death—certificate is given, though based on circumstantial evidence. Levirate Marriage Manv ancient sociéties, including that of the Hebrews, had a provision by which a man was obliged to marry his brother's wife if gis brother had died childless.,in order that his name should be perpetuated and that his property shouid remain "within the family". Such a marriage is known as levirate marriage, from the Latin lgglg for brother-in-law. In Hebrew it-is known as gibbum. from the Hebrew been quite common xgggg for brother—in-law. Such marriages must have at one time among the Hebrews. An examgle occurs in Genesis 38:1-10. It came; however. to be disliked; and the Code of Deuteronomy has what one might call an escape-clause. According to this the brother— in-law could refuse, though he had then to submit to the humiliating ceremony of chalitsah. Deuteronomy 25:5-19. Levirate marrmage became more and more unpopular, and several rabbis preferred chalitsah (Eek. 13a, Yeb. 59b, Yeb. 1098). With the aboiitidn of polygamy by Rabbi Gershom (ca; 1000 C.E.) levirate marriage became, more often than not, impossible anyhow.
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