September 30, 2022

The Nature of Jewish Marriage and its Requirements

Since the eleventh century a Jewish marriage is monogamous. Prior thereto the Jewish law tolerated polygamy imposing certain restrictions on it but without expressly sanctioning it. In the beginning of the eleventh century the Rabbinical Synod at Worms under Rabbi Gershom ben Juda pronounced an express prohibition of polygamy which, though originally made for the Jews living in Germany and Northern France, came to be adopted by Jews residing in other places also.

Requirements for a valid marriage

By the Jewish law three requirements are necessary before parties can enter into a valid marriage, namely,

(1) consent of the parties,

(2) mental capacity, and

(3) the legal age.

Consent

No betrothal or marriage can take place without the consent of both parties and a marriage contracted without consent is void even though the prescribed forms have been complied with.

Mental Capacity

Since consent is absolutely requisite to the marriage contract, idiots and lunatics are not capable of contracting a valid marriage as they lack the capacity to give free consent to it.

Legal Age

The legal age for contracting a valid marriage according to the Talmudical law is the age of puberty which is assumed to be the completed thirteenth year in males and the completed twelfth year in females and a marriage contracted by minors under that age is void, though in former times a minor daughter below the age of puberty was permitted to be given in marriage by her father or, if he was dead, by her mother or brother on the ground of the necessity of her having a protector in the helpless state in which she would be in the event of her father’s death or poverty.

The general rule, however, was that a man was prohibited from accepting betrothal for his minor daughter and it was equally forbidden to cause a male or female minor to marry.

The Other Requirements to make consent valid

The fulfilment of the above requirements is, however, not in itself sufficient to bring about a valid marriage. In Talmudical law no contract can be formed by mere consent of parties but the consent has to be manifested by a certain legally established act or formality in order to make the consent valid and this applies equally to a marriage contract.

The free consent of parties who have attained the legal age and possess the mental capacity to give such consent is thus not by itself sufficient to conclude a valid marriage in Jewish law. The marriage contract has to be formally brought about and concluded by the betrothal.

Betrothal among Jews

The betrothal among the Jews is not the same as an engagement among many other communities where it is a contract between a man and a woman to marry each other at a future date.

A betrothal among the Jews is the very initiation of marriage and the betrothed parties are in some respects regarded as married, though as yet not entitled to the exercise of marital rights nor under an obligation to fulfil the mutual duties of conjugal life until the marriage has been consummated by the nuptials.

Effect of Betrothal

The effect of a valid betrothal in the Jewish law is that the betrothed woman cannot marry any other man and faithlessness on the part of the betrothed woman is treated as adultery. The betrothment, just as in the case of a marriage, can be dissolved only by death or a formal bill of divorcement.

Forms of Betrothal

The betrothal can take one or two forms, either of which gives legal validity to the marriage contract.

Kaseph

One of these is termed “Kaseph” (i.e. money). The “Kaseph” called betrothal of “Kaseph Kiddushim”, consists in the man giving to the woman, in the presence of two witnesses, a piece of money or any other object of equal value and since the middle ages a plain gold ring instead, accompanied by the words: “Be thou wedded (consecrated) to me”, or “Be thou my betrothed”, or “Be my wife”, or “Be mine”. The first formula is in general use.

Later on to it were added the words “according to the law of Moses and Israel”, the whole formula thus being “Be thou wedded (consecrated) to me according to the law of Moses and Israel”. This formula, though generally spoken in Hebrew, is at times replaced by a corresponding formula in the vernacular. Rabbi Kadushin translates the Hebrew word for “consecrated” as meaning “betrothed” and not as “wedded”.

The presence of parties at an act of betrothal, though regarded as proper, is not absolutely necessary and either party can be represented by agent appointed for the purpose. In such a case the formula of the betrothment has to be suitably altered. The presence, however, of two competent and qualified witnesses is an absolute requirement to give validity to the act of betrothal and without such witnesses the betrothal is invalid according to the Talmudical law.

Sh’tar

The other special formality or form of betrothal is termed “Sh’tar” (i.e., a written instrument) and consists in giving to the woman a written instrument containing the above formula, instead of a piece of money or its value or a ring, the other formalities observed being the same. The betrothal by Sh’tar is not so much in vogue, the form more prevalent being betrothal by Kaseph.

Benediction and its effect

The ritual law of the Talmud requires that a benediction (termed “Berchat Kiddushin” or “Arusin”) be pronounced at the betrothal. This benediction expresses the Lord’s praise because of the regulation and sanctification of the matrimonial relation and alludes to the law that the betrothed parties are not permitted to enter upon the conjugal life before the nuptials.

This benediction is not necessary to the legal validity of a betrothal and a betrothal concluded according to the prescribed forms is legally valid in all respects in spite of the omission to pronounce the betrothal benediction.

Formerly a considerable time elapsed between the betrothal and the nuptials but since the sixteenth century it has become a general rule to combine the betrothal with the nuptials. The nuptials are termed “Chuppa” (which formerly denoted the bridal chamber and in later times the canopy under which the nuptials took place) or “Nissuin” (which means “taking”, that is, taking the wife).

Ceremony of Nuptial

The ceremonies of the nuptials in essence consist of the act of conducting the bride from her home to that of the bridegroom or to a place representing his home and the recital of certain benedictions. The act of conducting the wife from her home to that of the groom indicates that she is now placed under the matrimonial authority and that they now commence to live together as husband and wife, the marriage being then regarded as having been consummated though no actual marital intercourse had taken place.

The nuptial benedictions are termed “Berchoth Nissuin” and they refer to the divine origin of marriage and invoke God’s blessing upon the bridal couple. As in the case of the benediction of the betrothal, the omission to pronounce the nuptial benedictions does not affect the legal validity of the marriage and a marriage is legally valid in all respects without the pronouncement of these benedictions.

No need for Rabbi and minister

It is pertinent to note that according to the Talmudical law the presence of a rabbi or minister is not required at the betrothal or the nuptials and the prescribed benedictions can be pronounced by the bridegroom or any friend present.

Kethuba

It is also customary for the husband to execute before the nuptials an obligation in writing termed “Kethuba”.

Jewish’s husband duties to his wife

Marriage gives rise to certain rights and duties so far as both the husband and wife are concerned. On this came to be based the elaborate regulations of the Rabbinical Code relating to the husband’s duties to his wife. They are divided by into the following five headings: –

1. To furnish his wife with the necessaries of life, including- (a) food; (b) clothing; (c) dwelling.

2. To have conjugal cohabitation with her.

3. To provide suitable medical care and nursing when she is sick.

4. To protect her and to ransom her in the eventuality of her falling into captivity.

5. To provide for her burial in case of her death.

The first and the third consist of the husband’s duty to maintain his wife according to his station in life. The second is implied in the very nature of marriage. The second part of the fourth duty was expressly provided in the middle ages by reason of the frequent invasions by Bedouins in the oriental countries and the continual wars in Europe. It is not likely to be of any practical importance in the present age.

The fifth and the last duty is not such as can ever arise for the consideration of the Courts in a suit filed by the wife. The husband’s rights arising on marriage are that he becomes entitled to his wife’s earnings and to whatever she gains by chance as also to the usufruct of the property brought by her as her portion and of the property received by her during coverture by inheritance, donation, legacy or otherwise except where it is donated to her on the express condition that it is to be for her own exclusive use. He also becomes her sole heir on her death except in certain cases. The husband’s right to the wife’s earnings is regarded as the consideration for his duty for supporting his wife.

If, therefore, the wife of her own free will renounces her claim to be supported by him, her earnings are her own and are held by her free from her husband’s claims.

Reference

Mozelle Robin Solomon vs Lt. Col. R.J. Solomon; (1979) 81 BOMLR 578