Derech Kiddushin

In the same article mentioned below ( “Ba’ayot Agunot uMamzerim” in Dine Yisra’el, XIX (5757-5758), R. Meir Simchah Feldblum proposes a ceremony called “derech kiddushin” (in the manner of kiddushin) which, he notes, has Talmudic roots as a way to sanctify and permit cohabitation without requiring a get.

The core case of Feldblum’s argument comes from a discussion of the status of a minor female whose father traveled abroad and thus effectively abandoned his obligations to his daughter–a father can contract marriage on behalf of his daughter, but a minor female cannot contract her own marriage (back in the day, this was intended to protect her from sexual predators). In a case where such a girl attempts to take her fate in her own hands, the Rosh, in Kiddushin 2:8, asserts that though she cannot contract a kosher marriage on her own (she’s still too young), “nevertheless, she cannot be forbidden [such a relationship] because she is to be considered an unmarried girl who engages in a licentious relationship [with her consort] for, since she is with him is the manner of marriage (derekh kiddushin hi ezlo), it is not licentiousness.” The relationship isn’t full Rabbinic marriage because the partners weren’t technically eligible to marry, but it’s not licentiousness either–it doesn’t require a get, but it’s something more than concubinage. This, then, is derech kiddushin. (This position is mentioned in the Shulchan Aruch, Even ha-Ezer 37:14.)

R. Feldblum suggests that any relationship that’s in “the manner of marriage,” even if it’s not actually 100% fully kosher kiddushin, is sanctified yet does not require a get. As J. David Bleich (“Can There Be Marriage Without Marriage?” Tradition, I think 33/1, 1998), artculates it,

According to Rosh’s own categorization… of derekh kiddushin, [it is] a situation in which the parties seek to establish a matrimonial relationship but fail to realize their intention because of a technicality in the form of a lack of halakhic capacity to contract a valid marriage. Since the parties genuinely desire to effect a marital relationship, a woman entering into such a relationship suffers no social stigma.

R. Feldblum argues that this applies to all couples, today–that is, that there’s a technicality preventing that kiddushin from being kosher. He argues that since no woman today would truly consent to kiddushin if she really understood what it meant, no woman is truly able to give consent–therefore all kiddushin is, in a way, derech kiddushin. (The adult woman’s consent is crucial–without it, the halakha suggests with very little controversey, the kiddushin does not take effect.)

To put it another way, the ethical issues of acquiring a human form suffient “lack of halakhic capacity” to effect the kinyan of kiddushin, or that there are other factors that might affect one’s ability to make a kinyan. Or perhaps, even if the Rosh did intend the concept to mean one thing in a specific context, the concept could be extended more broadly.

The more I think about this idea, the more I like it, personally. It’s very compelling. It also offers a nice potential model for same-sex couples, who want to establish a kosher marriage and are together “in the manner of marriage” but who do actually lack the halakhic capacity to do traditional kiddushin (which is more or less defined by a man’s acquisition of a woman, and doesn’t really work in any other gender formulation). And if more het couples accept it, it’d have the nice side-effect of equalizing the rituals and status of straight and gay marriage.

R. Haviva Ner-David suggests that the way to enact this today is to issue a formula similar to (in the manner of) traditional kiddushin, however, in a form that would not be construed as traditional kiddushin, such as, “Harei ani miyuchad(et) lach/lecha bitaba’at zu” (Behold, I am made exclusively yours with this ring.)

ADVANTAGES: Creates a bond that fits within the halakhic framework, does not require a get, is same-sex friendly, nobody gets bought, is arguably the closest thing to kiddushin available today (depending on how you regard the consent issue.)

DISADVANTAGES: Is not kosher kiddushin, is possibly non-applicable to situations in which traditional kiddushin is possible, has a “lower” status than traditional kiddushin.