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‘ @ 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. To-day. the Orthodox Ecclésiastical
Authoriiies do not permit levirate marrmaée at all. Yet they do not
permit a childless widow to re—marry w;thout glitsah. This often
results in injustice for the widow. For (a) her brother-in—law may
live in.a distant country. and (b) he may refuse to submit to chalitsah,
: . _ 7 _ or (c) he may insist on a bribe. In all these cases a widow may, through fio'?au1t of hqr own, find herself condemned to gergetual widowhood. Apart from that, the ceremony of chalitsah is disgusxing
in itself. Liberal Judaism has, of course, abalished it. On the
other hand, it does germit levirate marfiage (whetner or not the widow
is childless). rhere are good Eeasons for this, And no good reasons
against.
It should be mentioned that Alfasi, Laimonides and the Spanish
school generally were in favour of levirate marriage, fiaile Rabgsnu Tan
and the northern school favoured chalitsah.
Shalitsah hqs to be yerformed before a court of three, Rho
appoint the others to act as.u1tnesses. (Yeb. 1015) It used to take
place in the synagogue court or in the Rabbi's house, or excegtiJnally
in the widow's house. nowadays it takes t,lace at the Beth Din. It may
not takv glace in the evening, or ona sabbath or a Jestival, or on the
Ave of a cabbath or Eustival. Aha brother-in—law is required to declare
that he is submitting to the egremonv of his own free will. He is thfll
provided with a Special st, made of leather ifi a specified way. with
this he has to Lalk four yaces. on the presi*in5 judge makes the
woman reyeat after him the Deuteronomic formula to the effect that her
brother—in-lah is unwilling to marry her. Then he'maies the brother-
in—law repeat the formula "I do not hiSh to take her". ?hen she takes
off his shoe, throws it away, Syits'on the ground in front of him. and
reyeats after the yresiding judge: "30 shall it be dofie unto that man
who will not build up his brother's house,_and his name shall be called ‘ _ _ { 8 in Israel. 'the house of nim that math his shoe ioosed'." this last Bhrase is repeated by her three times, and then another threé tines by the assembly. Then the brother—1n—law returns the shoe to the
Court, and the Judges say "uav it be the will of God that Jewish women be no more subjected to Chalitsah or to Yibbum". As they rise, the presiding Judge says "Blessed be He who sanctified us with the commandments and statutes of Abraham our father".
Prohibited Times
According to Orthodox n. a marrmage—c¢remony may not take place on the Sabbath, the Festivals, or the Intermediate Days of the Festiaals.
It is also forbidden during the period of the counting of the Omer between rassover and Eenteeost; though an exception is made gh certain days.
Another forbigden yeriod is that between the two fast days of the 17th of Tammuz and the 9th of Av (in some comfiunities only from the lat of
Av.) Liberal Judais“ takes no notice ofi these prohibitions, except in the case of Sabbaths and Festivals. 0n the other hand, it does not permit marriages during the Ten Days of Penitence.
'In addition, Orthodox Judaism forbids a man or woman to marry during the 50 days of mourning (after the funeral of a near relative).
A widow or divorced_moman is not allowed to re—marry until 90 days have.e1apsed from her former husband's death or from the divorce
(excluding that day itself). The reason is that there shall be no doubt regarding a child's paternity in case she is pregnant. If she is visibly pregnant, she must wait till the chils barth. If it is still—born, she can re-marxy at once. If not, she has toqit till the child is two years old. A widower is not allowed to re—marry until
ihree festivals have occurred since his late wifefls dgath. But this
-rule is relaxed if he has not yet fulfilled his duty of procréation,
or if he has little children who need the care of a mother.-
finzagement and Larriage
As mentioned last time, betrothal and-wedding were originally
two separate events. Nowadays they are combined. The marriage service
in the Orthodox raaver Book is called "Seder Erusin ve-Nissuin” (Order
of Betrothal and Wedding). Neve*theless, a separate engagement ceremony
exists. It is called Tenaim and consists simgly of the drawing yp of
a contract, (Hamadrich, 2-4) with penalties for breach of promise.
The Ketubah
The Ketubah, or mar:iage-contract, goes back to Rabbinic times,
and in its exact present form to the middle Ages; There are some
variations, especially between the Ashkenazi and Sefardi Ketubot.
Buy they agree in all essentials. EKKHKKXXKKKKKKXKHHKTKXKEKKKEXKKEKHKEXEKHXWXXKKEKKKIEXXHHXHXXEEEKEEN
'The Ketubah records that thé bridegroom has pronounced the mar:nage
formula to the pride, and has gromised to behave towards her as a
Jewish husband éhould, and esPecially to take care of her economically.
It also “ecords that the briQe consented to marrv him. It then specifies
the Egggg (200 zuz for a virgin, 100 for a widow or divorcee) payable
to the bride in the case of the,brideéroom's death 9r in tqe case of divorce, the d0nry (nedunya) which the bridegroom has reJeived from
the bride or her garents (100 £92 for a virgin, do for a widow or SilW—d «Pinu- ' — 10 - ‘
divorcee), and the additional gayment (Tosefet Ketubah) maQe by the
bridegroom, ghich is usually equal to the dowry. The Ketmbah then
records that the bridegroom has gromised - in the case of his death
or in the case of divorce - that this threefold amount, mohar, iowry, and additional yayment, $111 be yaid to fine wife, if necessary by the mortgage of all his propérty. ( Hamadrich, 17-20).
It #s to be noted that the wife can forfeit all these gaymenté
under the turms of {he Ketubah in all sorts of cases: if she i§ found
guilty of adultery, or of pre-marital incontinence, if she giv;s her
husband unkosher Food, if she transgresses the laws of decenc§ by
walking about in the street with unc3vered head or by flirting with
strange men, or if she KKKEX curses her husband's_parents in his
presence, or if she refuses to follow her husband from place to place,
and especially of she refuses to follow him to Balestine. In all these
cases the husband is entitled to divo£ce hér with forfeiture of the Ketubah.
The Marriage Service
The Ketubah is usually drawn up immediately before the marriage
ceremony, KKKXfififiuXKKK in the presence of two witnesses who must not be
related to the bridegroom or the bride. It requires a symbolic act of
agreement (kinyan), whereby the Baboi gives the bridegroom a Kerchief to hold,~while he promises to fulfil all tha conditions.
~ First the bridegrrom 5 led under the r‘hgpgah, tpen the bride, tm UV ~~ ‘ In ~~ bride standing on the bridegroom's riglfiv Then the minister says 'Baruch habba...'. followed by 'M1 addir a1 hakol...'. I‘. ' - ll —
In some communities this is Bone separafely for fihe bridegrnom and the
bride. It is also customary for thv bride to be led seven times round the bridegrmom before she takes up her position. This is sometimes explained as affording the bridggroom an Opportunity of making sure that he is marrying the right gersofi; but it is yrobably derived from the superstitious belief that the circle is‘a protection
Against evil spirits. Then comes the Minister's address. Then the giying of the ring. This goes back only to the Middle Ages, previpusly a coin had been used, and this 15 still thgoretically permiss.ble.
The ring is glaced on the index finger of the right hand (and only afterwards removed to the more usual fourth Einger of the left hand.)
Then the Minister reéds our the Ketubah, in the original Aramaic, sometimes also in translation. Then comé the seven bendictions of Bridegroom and bride again drink from the same glass. marriage (Singer, p. 299). /Then the breaking of the glass. Then the pgiestly benediction. At the gréee after the weddingLfeast, the seven benedictions are again recited, and certain insertions are made.
For the Liberal Jewish marriage ceremony, see the Liberal Jewish Home Prayer Book and the Marriage Certificate.