The word is out in both the Diaspora and Israel: the classic form of Jewish marriage known as kiddushin has problems. Critiques and remedies are presented from Orthodox and non-Orthodox sources. An entire issue of Sh’ma (June 2010) has been devoted to rethinking Jewish weddings.
The Trouble With Kiddushin
Critics allege that the legal structure of kiddushin is a format for inequality in the marital relationship. Wives are biblically required to be monogamous; husbands are not. Kiddushin is rooted in property law. In the first chapter of the Talmudic tractate Kiddushin, valid methods of acquiring a wife are analogous to ways of acquiring slaves, land, animals, and other chattel. As Gail Labovitz demonstrates in her interdisciplinary study, Marriage and Metaphor (Lexington Books, 2009), the Talmud frequently uses objectifying metaphors of owning and buying in regard to marriage.
Women complain that the bride in a classical kiddushin must be passive and silent, her silence signifying consent. Furthermore, kiddushin requires the man to acquire the woman unilaterally. Mutual acts of espousal are specifically ruled out. The preferred method of acquisition is kinyan kesef, buying the woman from herself with a token of easily specifiable but slight value. A gold ring, with 18K engraved inside is is now commonly used. Because only a man can acquire, only the husband can renounce his acquisition. Halakically, women cannot effect their own gittin, divorces. Hence, if a husband becomes mentally incapable of giving a get (divorce contract), has disappeared, or simply refuses to divorce, his wife is trapped. She cannot get out of the marriage becoming an agunah, a chained woman. If she remarries counter to halakah, her subsequent children will be stigmatized as mamzerim, ineligible to marry other Jews.
Some couples complain that the Babylonian boilerplate ketubah, signed by the husband, witnessed, and given to the wife, does not reflect the conditions or issues of a modern marriage. Finally, although gay, lesbian, and transgender couples seek authentic Jewish ways to marry, most consider kiddushin inappropriate to their needs.
Two of the most popular ways of remedying these problems among non-Orthodox Jews are double-ring ceremonies and creative ketubot. Whether it is valid for a couple to exchange rings is a matter of controversy. Both the Orthodox decisor, Rabbi Moshe Feinstein and the Conservative Rabbi Isaac Klein believe that the marriage is valid once the husband has given a ring even if the bride reciprocates with a ring and a statement. Rabbi Feinstein forbids the practice, and Rabbi Klein permits it.
Creative ketubot, written by the couple, have no legal force either in Jewish or civil law. They would be superseded by the classical ketubah. Some Orthodox couples write addenda to the ketubah in a separate document and, in some cases, make a neder, a vow, about the contents of the document. Rob and Lamelle Ryman published material from their kiddushin on the Internet (www.journeymama.net), including a document where the husband pledges sexual fidelity, a “living” ketubah, and documents facilitating delivery of a get. The Orthodox rabbi Steven Greenberg, who is gay, describes officiating at a gay marriage effected entirely by mutual vows.
Some Orthodox couples are giving the bride a voice in the ceremony. In their ceremony (JOFA Journal 1998–99), Drs. Beverly Gribbetz and Ed Greenstein used an ancient variant formula for acquisition: The groom said, “Behold you are my wife and I am your man (ishekh)” and the bride responded, “I am your wife and you are my man.” Her statement does not effectuate acquisition but simply acknowledges his acquisition; however it is participatory. The use of “your man” rather than the usual term for husband, ba’al, master or owner, recalls Hosea’s prophecy (2:16) in which the covenant-marriage is reconciled: “You shall call Me Ishi, (my man)/ No longer shall you call me my ba’al.” In other ceremonies, after the groom has pronounced the acquisition formula, the woman recites a verse from Song of Songs.
The Berkovits T’nai
Some couples, to protect the wife from becoming an agunah, are contracting kiddushin al t’nai, conditional marriages, based on Dr. Eliezer Berkovits’s book, T’nai B’Nissuin u’v’Get (Conditions on Marriage and Divorce [Mosad ha-Rav Kuk, 1966]). Precisely formulated conditions upon the act of kiddushin itself ensure that if the husband is not able or willing to give a divorce within a specified time, the marriage is retroactively annulled. Children resulting from a marriage that was later retroactively annulled are legitimate, and sexual intercourse prior to retroactive annulment is not considered promiscuity because the spouses had the intention of sex within marriage. Melanie Landau, an Australian scholar, has published a searching critique of kiddushin and its alternatives. Her book, Tradition and Equality in Jewish Marriage (Continuum, 2012), has an informative chapter on conditional marriage and the Berkovits t’nai.
Because kiddushin involves many risks and requires so much tweaking, alternatives have been suggested. Rabbi Meir Simcha Feldblum, an Israeli rabbi, proposes Derekh Kiddushin, or quasi-marriage (“Ba’ayot Agunot U’Mamzerim” Dinei Yisrael XIX). Derekh Kiddushin has its origins in a Talmudic case in which the couple wished to be married but was technically ineligible to contract a valid marriage. The relationship the rabbis permitted them to contract was not judged to constitute promiscuity but did not meet all the requirements for a rabbinic marriage and therefore did not require a get.
Rabbi Feldblum argues that no woman today would consent to kiddushin if she understood that she was allowing herself to be acquired. Since there can be no kiddushin with an adult woman without her consent, it follows that most marriages are actually invalid. This unwillingness of modern women to consent to acquisition constitutes, then, an ineligibility to contract valid kiddushin. Instead of kiddushin, Rabbi Feldblum suggests a kiddushin-like ceremony that would not include a get, and not result in agunot and mamzerim when no get is given. There is a divorce procedure if the marriage is unsuccessful, but it is not a unilateral de-acquisitioning by the man.
This divorce procedure, in Feldblum’s opinion, differentiates Derekh Kiddushin from concubinage, another solution with Talmudic roots that has been in the news lately. The Chief Judge of the Jerusalem Rabbinical Court and the Sephardic Chief Rabbi ruled (July 17, 2012) that when a man is prevented from having children by his wife’s infertility or refusal, he may, in some cases, be permitted to take a concubine. A concubine, according to b.Sanhedrin 21a, has no ketubah and does not require a get. Historically, a small but significant minority of legal decisors have permitted concubines. Concubinage is an untidy and ahistorical category containing the secondary wives of the patriarchs, the concubines of kings, Greco-Roman hetairas, amicae, and concubinae, and the mistresses of medieval Spanish-Jewish aristocrats.
In “Partnerships According to Halakah but without Chuppah and Kiddushin,” [in Hebrew] Academot 17, 2006, Zvi Zohar attempts to establish concubinage as a justification for premarital relations. Others have proposed it as an alternative to kiddushin for secular Israeli couples. Concubinage is a hard sell to feminists, however. If being purchased is unappealing, being leased long term is hardly more attractive. The fact is that the tradition has no model of an egalitarian relationship. I have argued in Engendering Judaism (Jewish Publication Society, 1998) that concubinage is not a single category, but a placeholder for varieties of long-term monogamous relationships that are neither promiscuous nor kiddushin.
I propose such a relationship in Engendering Judaism, the B’rit Ahuvim. The B’rit Ahuvim draws on the research of Mordecai Akiva Friedman (Jewish Marriage in Palestine: A Cairo Geniza Study, 2 vols. [Tel Aviv University, 1980–1981]). Many of the eighty Palestinian ketubot Friedman found in the Geniza contained a stipulation enabling the wife to initiate divorce proceedings and requiring the husband to divorce her upon her request. Some of the ketubot refer to the marriage as a shutafut, a partnership. One quotes the prophet Malachi (2:14) referring to the wife as chaverati v’eshet b’riti,“my companion and my covenanted wife.”
Drawing on the language of both business relations and covenant, I have designed a ceremony to remove marriage from property law and resituate it in partnership law. Instead of the husband acquiring the wife or of mutual acquisition, the partners acquire the partnership itself. This central act replaces the Erusin, the espousal portion of the marriage ceremony. The partners draw up a shtar b’rit with agreed-upon stipulations, similar to the tailor-made Palestinian ketubot that delineate the couple’s major obligations to one another. This partnership deed, however, is not a ketubah, which is a post-kiddushin set of limitations and obligations. Instead it is a written account of the stipulations that shape the partnership.
The B’rit Ahuvim is both a business relationship and a covenant. Like a business relationship, it acknowledges fundamental economic and social concerns. As in a covenant, the partners are committed ultimately to one another rather than to the stipulations they promise to fulfill, and therefore the covenant may survive covenant transgression. Like a business partnership, the B’rit Ahuvim can be dissolved by the withdrawal of either one of the partners. This withdrawal should be confirmed by a bet din.
The Conservative movement has adopted the theoretical structure of B’rit Ahuvim for gay marriage, although not the ritual structure I offer. Ironically, the New York Post reported dissatisfaction among Conservative women that although a more egalitarian structure now existed, they were left with kiddushin. Warning: the natives are still restless.