Monthly Archives: July 2006

Vows

This is the idea of one of my halakha teachers, who prefers to remain an anonymous formulator of ideas rather than a known promulgator of particular methods.

This, like R. Ner-David’s proposal in her book, involves playing with nedarim, vows. The first thing to say about vows is that they’re dangerous; there’s a pretty strong Rabbinic tendency to avoid going there if one can. They’re binding, powerful, and one wants not to be in a position where one can’t fulfill what was promised.

In any case, it does offer one way out of the kiddushin dillemma. If one violates a vow, one has committed a sin d’Oraita [of Torah law, rather than rabbinic law], so it has the same level of seriousness as traditional kiddushin. One needs to go to a beit din [legal court] to undo one’s vow–so there’s a way out, and/though it involves community consent. If a marriage ritual involves two separate vows of monogamy, care, providing economically and so forth, each party can undo his/her vow without concern for the other party. This, then, avoids some of the problems that arise if a woman wants a divorce and her husband won’t grant a get.

ADVANTAGES: Can be fully egalitarian, a solution for the get issue, is significantly legally binding, nobody gets acquired.

DISADVANTAGES: It’s not “romantic” feeling, there’s no kiddushin (as always, a pro or a con), one needs the backup of a local beit din to undo, vows are dangerous and not to be treated lightly.

1 Comment

Filed under Uncategorized

Invoking Rebbeinu Gershom

Another thing some people do is that, after the groom gives the bride the ring and says, “Harei at mikudeshet li c’da’at Moshe v’Yisrael” (Behold, you are set apart for me according to the laws of Moses and Israel), the bride then says, “Harei, atah mikudesh li c’da’at Rebbeinu Gershom v’Yisrael” (Behold, you are set apart for me according to the laws of Rebbeinu Gershom and Israel.)

Rebbeinu Gershom is, among other things, famous for issuing a ban (“takanah”) on polygamy in the 11th century. At first it was understood as binding on specific Ashkenazi communities, but now it’s more or less accepted accross the Jewish world (with a few communities here and there who don’t hold by it). As such, for Ashkenazi Jews in particular, Rebbeinu Gershom acted as the agent of more or less equalizing the male and female pieces of the marriage agreement–just as the bride, through marriage, was prohibited to other men, the groom, through marriage, is prohibited from taking other wives. (The issue of adultery is complicated, and I won’t get into it here).

The big problem with a woman handing a man a ring and saying, “Harei, atah.. c’da’at Rebbeinu Gershom” is that it’s technically not correct. The takanah (forbidding him to marry other women) kicks in when he acquires her, NOT when she gives him a ring. It may be a nice, symbolic way to acknowledge their respective sexual limitations on each other, but it has no halakhic status.

ADVANTAGES: Halakhic marriage, ring exchange, the woman publicly declares her husband’s monogamy just as he declares hers, it’s kind of cute.

DISADVANTAGES: Her statement and ring-giving have no halakhic status, she’s still acquired (and he’s not, really), even the limitations on seuxality in the two situations aren’t exactly parallel.

2 Comments

Filed under Uncategorized

The Da’at Factor

One of the more unassailable requirements of kosher kiddushin is דעת המקנה, consent/knowledge on the part of the one being acquired as to what’s happening. Traditionally this was so that one couldn’t marry a woman off without her consent, but now, the question lingers: if a woman gets married without knowing that her wedding ceremony includes a kinyan and requires a get to be given by her husband, has she given informed consent?

There’s also a principle of “mekach ta’out” in play, aka agreement under false pretenses.

R. Meir Simchah Feldblum, in an article titled, “Ba’ayot Agunot uMamzerim” in Dine Yisra’el, XIX (5757-5758), argues that, were women aware of the technical nature of their marriage (ie, that receiving a ring equals being acquired in some sense), they would not consent to a halakhic wedding ceremony. He uses this principle as a way of annulling many weddings, in situations in which a woman is left stranded without a get. They didn’t know that they were being bought, therefore it doesn’t “count” as a kosher wedding.

This isn’t a shita (method) for weddings so much as a factor to keep in mind through all of this. Many rabbis fail to mention the kinyan factor to prospective couples as marriage planning begins–for understandable reasons, since the rabbi wants the couple to have a kosher wedding, doesn’t want them (particularly if they’re not very Jewishly engaged) to freak out and refuse to have anything to do with the religion, etc. But said rabbi may be doing them a great disservice, since the status of their eventual marriage, if the bride doesn’t have knowledge of what’s happening, is in question. On the other hand, it’s a handy loophole if there’s concern about ever needing to annul the marriage because a divorce isn’t being granted.

Leave a comment

Filed under Uncategorized

Kinyan Shtar

The Mishneh Torah, Hilchot Ishut 3:21 writes that though “the children of Israel have accustomed themselves to betroth with money or its equivalent… if a man wants to betroth with a document, he may do so.” The Shulchan Aruch (Even HaEzer 32:1), echoing the language of the Rambam’s Hilchot Ishut 3:3-4, details the nature of the document that can be used for kiddushin: “He [uses] paper or pottery shard, even if [the paper’s value] is not equal to a peruta, and writes for her, “Behold, you are betrothed to me,” and gives it to her before witnesses, and he needs to write it in the name of the woman to be dedicated [ha-isha hamikudeshet], as one would in a get….”

There isn’t a lot of detail in the sources (at least the ones I’ve encountered–please comment if you know something) about what is forbidden to write on such a document so long as the above requirements are met. As such, the shtar [document] of kiddushin could be framed as a parallel document to the ketubah, in which the bride promises not only monogamy, but also to feed, shelter, care for her groom and what the financial (and possibly legal) implications of the marriage dissolving might be. In such a case, the standard ketubah would only require a clause promising the groom’s monogamy for the parallel to be complete.

In this solution, the groom would effect kiddushin by handing the bride the document detailing her responsibilities—or she could accept it through kinyan sudar[acquiring through taking up an object] with a scarf or pen—and the bride would hand the groom perhaps the ketubah and a scarf or pen, thereby effecting the kinyan through which his ketubah responsibilities are acquired. If the couple wished to do an exchange of rings, they could do so after this, to be clear that shtar [a document], not kesef [money/a ring], is the means of acquisition.

This solution has the advantage of being kosher kiddushin, and for having parallel responsibilities or promises “sold” in the respective documents—there are two kinyanim, one representing each party’s “selling.” It lacks, perhaps, the romantic or “traditional” feeling of a ring being used to effect kinyan, but of course avoids that method’s many drawbacks.

Unfortunately, with this solution, the groom is still the only party engaging in acquisition—he acquires the bride (or at least her sexuality and other ketubah-like promises) through kiddushin, and then acquires the responsibilities of his own ketubah through kinyan sudar. Though the bride’s level of participation and responsibility is much more on par with the groom’s level, he is still fundamentally the actor in this drama. Please see the article by R. Dov Linzer for more information on some of the underlying concepts, here.

ADVANTAGES: Halakhic kiddushin, enables bride and groom responsibilities to be relatively parallel, makes the ring-for-ketubah exchange of the Linzer model much more parallel.

DISADVANTAGES: Doesn’t “feel” like traditional kiddushin and the ring exchange, the woman is still technically acquired, couples lose the opportunity to detail each party’s responsibility to the other in one ketubah, one single document.

Leave a comment

Filed under Uncategorized

Let Halakha Follow Minhag

The Reconstructionist-ordained Rabbi David Mivasair argues (Beckerman, Cheryl. “Kiddushin and Kesharin: Toward an Egalitarian Wedding Ceremony.” Kerem vol. 5, Spring 1997.) that, as more heterosexual couples embrace a ceremony in which both male and female parties use the traditional formula of acquisition–harei at[ah] mikudesh[et] li… (“Behold, you are set apart for me with this ring according to the laws of Moses and Israel”). This statement, plus a ring exchange with the intention of mutual kinyan (acquisition), the minhag (custom) will, as many minhagim have, eventually be transformed into halakha (law) with a corresponding weight. He writes, “As more and more couples have the women say these words under the huppah at their weddings, doing so [is becoming] dat Moshe v’Yisrael. (the law of Moses and Israel)”

While this is a nice sentiment, one that might one day come to pass, it certainly does not reflect our contemporary world. For the moment, the bride’s utterance of the harei atah mikudesh li formula is, by most authorities, either irrelevant (because she does it second, after she has been acquired already, and it’s thus an utterly meaningless statement with no legal weight) or it’s understood to cancel the kinyan transaction, as it is parallel to the groom’s gift and can be read as a “giving back” of the ring. In no way, at least according to traditional halakha, can the woman acquire the man with this formula.

Secondly, even if we hope and trust that this minhag is incorporated eventually into halakha, we still remain with the problem of the halakhic status of weddings performed until this happens. Nonetheless, as a form of civil résistance and protest for halakhic change, this might be quite powerful.

ADVANTAGES: Feels equal, everybody gets a ring and a voice under the chuppah, it’s same-sex friendly, and it has an activist dimension to it.

DISADVANTAGES: It’s either irrelevant to kiddushin of bride or it cancels the kiddushin of the bride (and one should know which one it is!), as a “minhag trying to create halakha,” it’s not likely to be recognized by authorities as halakhic, has somewhat of a confused attitude about whether this is a halakhic ceremony or a non-halakhic ritual.

1 Comment

Filed under Uncategorized

Pilagshut

A relatively recent article by Dr. Tzvi Zohar in Akdamot has seemingly raised the whole pilagshut (concubinage) issue again, but, really, people have been talking about it for a while, now. Hirhurim notes a few other sources (and rebuttals), and I’m pretty sure R. Arthur Waskow was supporting this notion as a replacement for kiddushin a while back as well.

In short, a pilagesh is a woman permitted to sleep with a man, and (see Sanhedrin 21a) there’s no ketubah and no kiddushin involved. With no contract and no responsibility, there’s also no certainty of duration–the encounter can be for a night or a lifetime. The only thing that makes it “kosher” is that the woman can’t be in niddah (a state of menstrual “impurity”) and has to go to the mikveh after niddah and before intimate relations.

For some people, perhaps, there’s interest in making up an offical “pilgashut” agreement, wherein the woman becomes the pilegesh of the man, in lieu of kiddushin or its variations.

ADVANTAGES: Nobody gets bought, there’s no get issue, it’s a way of putting very modern idea into an ancient Jewish framework, it’s a way of giving a ritual a Jewish flavor if one primarily wants a civil/secular, rather than halakhic marriage.

DISADVANTAGES: There’s no ritual/legal binding, nobody is responsible or obligated to anyone else (which, at least to me, gives the thing a lot less weight and meaning, but I suppose others might see this as a pro), setting this up in a ritualized way is almost superfluous, since the whole point of pilagshut is that you don’t need the bells, whistles and contracts.

5 Comments

Filed under Uncategorized

Brit Ahuvim

Rachel Adler, in chapter 5 of her Engendering Judaism, details a wedding ceremony meant to be a “lover’s contract,” based on shutafut, a traditional model for partnership (usually business partnerships) rather than the traditional model of marriage.

I don’t have the book handy–it’s in another country–so I’m not going to write about the ritual’s mechanics in detail. If someone does, feel free to email me; otherwise, anyone interested should just check the book for oneself.

It’s not clear to me whether a couple using her ceremony would be legally obligated as a business partnership (and what that might entail). I don’t know enough about hilchot shutafut to know how, halakhically, one might end a partnership. I suspect that there’s more than simply walking away, but this isn’t something I’ve studied in detail. Anyone who knows, please email me or comment here!

ADVANTAGES: Does not require a get, is fully egalitarian, is same-sex marriage friendly, has a historical connection to Jewish ritual history (ie, it’s not a ceremony invented whole-cloth). Is possibly binding legally.

DISADVANTAGES: It’s not kiddushin, so halakhically one is not fully married (I recognize that, re: the get issue, this is a plus for some people), it doesn’t “feel” like the traditional ceremony. Unclear (to the author of this site–I need to go learn this) what needs to hapen to “unbind” a partnership.

1 Comment

Filed under Uncategorized