Home » Author, Melanie Landau, Recent Posts, Religion and Jewish Thought

A Jewish Marriage: Proceed with Caution

January 19, 2014 – 11:18 am17 Comments

By Dr Melanie Landau:

gett2A few months ago in Melbourne, I told a leading Jewish educator about my research in Jewish marriage. He asked me, tongue in cheek, “Are you ‘for’ or ‘against’?” “Proceed with caution!”  I responded. And I wasn’t joking.

The agunah is a symptom of the unequal legal relationship that is kiddushin- traditional Jewish marriage. Any discussion of agunot is lacking if it doesn’t address the non-reciprocal legal relationship created by kiddushin. It goes without saying that no woman should be stranded as an agunah, and rabbis and communities and couples should do all in their power to avoid or overcome such a problem. But even when there are no more agunot, b’sd (with God’s help), there will still be a problem with the non-reciprocity of kiddushin and the acquisition of the woman by the man.

On June 12, 2013, the Ruth and Emanuel Rackman Center for the Advancement of the Status of Women at Bar Ilan University held a conference about the relationship between acquisition and marriage.

Many Modern Orthodox rabbis still deny the legal implications of Jewish marriage and solely emphasize its holiness and beauty. However, as women are getting more educated halakhically, the legal implications of marriage are not being lost on them. Orthodox Israeli women are grappling with the nature of Jewish marriage:

“The status of a human as an acquisition, that is surely not acceptable to me, and the fact that it’s not mutual, that the man acquires the woman..and of course all the problems that come after- that a woman can’t divorce, and that if she is unfaithful her children are ‘mamzerim’. This is terroristic rule of women’s sexuality that is not applied to men. I don’t think it is healthy at all for a couple to live with the awareness of power relations such as these.”

(quoted in Koren, You are Hereby Renewed Unto Me: Gender, Religion and Power Relations in the Jewish Wedding Ritual,Magnes Press 2011, p110)

“I find kiddushin humiliating. The kiddushin itself humiliates me. It humiliates me in a deep way and represents everything I oppose in my whole being. And what was so hard for me- I can cry just thinking about it- that here I am, at the moment that would be so important to me going to stand in a public way in front of everyone who I love and who is important to me, and I am going to allow halakha to relate to me in a way that I think is forbidden for anyone to relate to a woman ever!” Shlomit

(Ibid, p111)                                                     

(my translations)

Many, if not, most women would not agree to such a relationship if they knew what it entailed. Other women who do know what it entails, are still going on with it for a range of complex and difficult reasons not within the scope of this blog. However, since marriage requires women’s consent, women could potentially exercise agency by refusing to consent to relationships that severely undermine their rights.

My recently published book Tradition and Equality in Jewish Marriage: Beyond the Sanctification of Subordination explores two alternative forms of marriage in the Jewish tradition. The first model, Conditional marriage partially avoids the non-reciprocity of traditional marriage. Although the woman is still ‘acquired’, the marriage is retroactively nullified if the husband exercises his non-reciprocal powers and refuses to give the wife a divorce.

The second model, ‘Derekh kiddushin’ (The Way of Marriage) also has talmudic precedent (although applied in a different situation in the Talmud) and refers to an exclusive relationship that is mutually contracted. Rabbi Meir Simcha Feldblum reintroduced this model of partnership in his article (in Hebrew): ‘The Problem of Agunot (stranded women) and Mamzerim (children born of a mother who is married to someone other than the father): A suggested overall and general solution.’

At a time of potential union with a beloved, and connection with the Divine, no woman should have to participate in something that is at odds with her deepest values and commitments.

I have a deep conviction about the full spiritual and material potential of women and the importance of the correct conditions so that they can be supported to take their rightful place in family, community and society. And may the love and honor of Torah and of the Divine be thus multiplied.

Print Friendly

17 Comments »

  • Joe in Australia says:

    Melanie, I think your use of the word “acquisition” isn’t helpful. It may be a frequent translation of the Rabbinic term “קנין”, but that term is also used in other contexts: for instance, “קנה לך חבר”, where in English we’d usually say “to make friends”. The term “acquisition” implies that a wife is a possession, which is certainly not literally true and at best rather begs the question.

  • Conflict of Interest says:

    “At a time of potential union with a beloved, and connection with the Divine, no woman should have to participate in something that is at odds with her deepest values and commitments.”

    Melanie, would you concede for the sake of discussion that tradition does mandate different roles for men and women in marriage? And that, as a consequence, there is a potential conflict between a modern woman’s values and commitments and some parts of Judaism?

    I’m almost certain that you would. Accordingly, I ask ‘what is the basis of the “should?”
    Is this a faith-based position? A religious one? “Should” a woman who finds the process of attending a ritual bath and being seen by another woman humiliating or against her personal values refuse to do so?

    I would suggest that, if the answer is yes, the fundamental discussion here is not halachic, but based on social norms. Halacha involves obligations on the part of both men and women in marriage and commitments that are potentially at odds with ones desires. To have a meaningful discussion, here, you will need to decide which of these is primary, and which will fall by the wayside.

  • Avigael says:

    This goes back to Gan Eden where Chava lost her equality due to her act of disobedience. Since this time, this status has not been regained and is part of the punishment, of which we suffer greatly. The Sages write extensively on this. I dont think the answer lies in trying to change Halacha to fit a modern day UN defination of men having the same rights as women. This is of course direct avoidance of what HaShem decreed and the final decision of the Sages on Halacha.

    So what to do? I think we need to accept HaShem’s sovereignty and through Teshuva and Torah – find the right path of how to cope with the inequality and deal with this issue as women. There is no easy solution. Of course, abuses within the Rabbinical System and particularly Beth Dins cannot be fully addressed until there is a Sanhedrin in place. In the Diaspora where these things are completely unregulated its simply kangaroo court and anything goes, which means the only course of justice is through secular means, unless on is fortunate enough to find a competent Beth Din which is rare, [content removed].

    As a side note, all of the pre-nups I’ve read to deal with agunah will not stop a recalcitrant husband from withholding the Get in my view.
    To do a Halachic marriage, one has to accept the authority of HaShem, Sages and your husband to keep you safe. Today, this takes an extraordinary amount of bravery (one could argue stupidity on account on depending on men) in the face of the tragic statistics.

  • Zalman says:

    hi,

    this isn’t a comment per se. I was wondering if it would be possible to post and essay I recently wrote regarding divorce in islamic and jewish traditions. I wrote the essay for a Family Law unit I had as a part of my law degeree.

  • Avigael says:

    Kinyan is a legal term with legal process. It grants legal rights to property and income directly to the husband. Acquisition is definately a correct term, similiar in nature as is a business contract today. “To make friends” has nothing to do with it, and is not a legal term with legal implications. An interesting discussion is here, which adds to the confusion, however I disagree with the conclusions of this legally. http://rabbilinzertorah.weebly.com/uploads/1/2/7/2/12725276/kiddushin__the_giving_of_the_ring.01.22.10.pdf

    The Womens Centre for Justice is a great resource – better to learn from them before needing them, as the problems are far from solved. See http://en.wikipedia.org/wiki/Center_for_Women's_Justice Also great links down the bottom.

    I think its critical for any woman considering Halachic marriage to protect themselves legally, well before they get married. The legal work is intricate and needs 100% clear head to implement properly. This means in practice:
    Putting clauses into the Ketubah which state that property Rights and other rights are as agreed (ie 50% ownership and one keeps 100% of what they came into the marriage with), rights to the wife’s income is 100% the wifes and not the husbands; clauses on Get, with the declaration of the man that he has granted pre-permission for the Get on the wife’s demand and other such clauses. The money clauses such as “I will pay $150 a day for every day I dont grant the Get etc” have shown to have failed miserably and cannot be relied upon.
    There should be clauses stating the divisions will go according to the civil laws in that country (as Beth Din corruption is too prominent and DO NOT protect women at all).
    If possible do the marriage in Israel through the Rabbinute (not a Independant Rabbi) where there is the maximum protection for the woman between civil and religious law – and its enforceable. No where in the Diaspora do you have this protection or resources. Its important for Jurisdictional issues.

    Hope that helps !

  • Galus Australis says:

    Hi Zalman.

    That sounds really interesting.

    Please send the essay to editorial@galusaustralis.com

  • Avigael says:

    Last Thought to add: So why after all of this would a Jewess want to get married halachically? Because we serve The King, and to do so, we need our other half to do so. We as women cannot fulfil the Mitzvot as is required for our redemption without the correct offerings and behaviours at the correct times. In many cases with the exception of the childbirth offering, it requires a man to do this on our behalf, as many other functions in our service in Torah.
    Just as a man davens for his family in a way a woman cannot, and visa versa. So we find that each have their different roles to make a whole, each complimentary and unequal to each other, that is pleasing to HaShem.

    We can only truely be Jewesses in the structure and mode that HaShem decreed, and any correction we undergo on the way of the process is a small price to pay for what HaShem has prepared for us in both the present and the Future!

    We choose between Life and Death. To choose to submit to Torah Law is the greatest Act we can do, an act that brings Life !!!

    By far, our most important relationship is between HaShem and us, lets make it the BEST EVER !!!

  • Joe in Australia says:

    Avigael wrote:

    Kinyan is a legal term with legal process. It grants legal rights to property and income directly to the husband. Acquisition is definately a correct term, similiar in nature as is a business contract today. “To make friends” has nothing to do with it, and is not a legal term with legal implications.

    This is why I said that Melanie’s use of the word “acquire” begs the question: you assume what you seek to prove. Marriage under Australian law also gives rights to the parties, but we still don’t talk about a man “acquiring a wife” unless we’re being sarcastic. Why not say that marriage is like friendship, in that each involves social and emotional support between two people; for that reason we use the same word in Hebrew to describe the start of both a marriage and a friendship.

  • Avigael says:

    Joe, the reason is that we are discussing Jewish Law as per Chazal’s intepretation. This has nothing to do with our ideas or how we understand it.

  • Avigael says:

    “…There are people in Brooklyn who have been agunot for 40 years. Their husbands were permitted to remarry while they were in limbo because they paid off the Jewish courts and got what they call “permission from 100 rabbis” to remarry, while their ex wives wallow in poverty, never able to remarry or have children while they hang in limbo….” From http://failedmessiah.typepad.com/failed_messiahcom/2014/02/rabbi-moshe-feinstein-and-ny-states-original-get-law-a-firsthand-account-678.html#more

  • david segal says:

    Melanie

    you You may be interested in this book :

    “סדר קידושין ונישואין אחרי חתימת התלמוד”

    http://www.hebrewbooks.org/39228

    or start here:

    http://www.hebrewbooks.org/pdfpager.aspx?req=39228&st=&pgnum=388&hilite

    it is in Hebrew, and was written by Avraham Chaim Freimann (Alfred Freimann)

    http://he.wikipedia.org/wiki/%D7%90%D7%91%D7%A8%D7%94%D7%9D_%D7%97%D7%99%D7%99%D7%9D_%D7%A4%D7%A8%D7%99%D7%99%D7%9E%D7%9F

    Avigail

    you forgot a few “minor” details:

    I hope that you read Hebrew.

    here is the Israeli law: חוק שיפוט בתי דין רבניים (נישואין וגירושין), תשי”ג-1953
    http://www.nevo.co.il/law_html/law01/317_003.htm

    סמכות מבחינה בין-לאומית בתביעה לגירושין (תיקון מס’ 3) תשס”ה-2005

    4א. (א) בלי לגרוע מסמכויות השיפוט לפי סעיף 1, לבית דין רבני יהיה שיפוט ייחודי בתביעה לגירושין בין בני זוג יהודים שנישאו על פי דין תורה, בהתקיים אחת מהזיקות האלה:
    (1) מקום מושבו של הנתבע בישראל;
    (2) שני בני הזוג הם אזרחים ישראלים;
    (3) מקום מושבו של התובע בישראל, ובלבד שהתגורר בה במשך שנה לפחות בסמוך להגשת התביעה;
    (4) מקום מושבו של התובע בישראל, ובלבד שמקום מושבם המשותף האחרון של בני הזוג היה בישראל;
    (5) התובע הוא אזרח ישראלי ומקום מושבו בישראל;
    (6) התובע הוא אזרח ישראלי והתגורר בה במשך שנה במהלך השנתיים שקדמו למועד הגשת התביעה.

    And it is not so clear What authority has the Rabbanut got on Jews that live overseas and aren’t citizens or residents of Israel, see:

    http://www.bhol.co.il/Forums/topic.asp?whichpage=1&topic_id=2850114&forum_id=1364

    even if you are a citizen of Israel you can’t get any protection from the Rabbanut or the civil courts unless the husband is in Israel, at the time after you filed the divorce papers, as not giving a get is not a criminal matter in the eyes of the courts, the Rabbanut or the courts can’t request from other countries the extradition to Israel of Israeli citizens who refuse to obey a ruling of the Rabbanut to give their wife a get.

  • Avigael says:

    Yes the only case I know involves Israeli Citizens. http://www.israelnationalnews.com/News/News.aspx/175794#.UwmTOvmSw4k and that is a new development! Israeli Law has no jurisdiction outside of Israel you must be an Israeli citizen, so yes good point David.
    The only other effective ‘method’ I know of that they tend to use is that they hire thugs to beat the guy until the Get is given, outside of the Rabbinate, usually a back yard Beth Din. In Israel it is done culturally, in the Diaspora it would end up with prison most likely and they dont have the backbone for it. Also the woman pays for it (as usual) at about $100k per pop – See http://www.nydailynews.com/new-york/brooklyn/stunning-claims-brooklyn-rabbis-accused-torture-90s-article-1.1483368

    If the you marry in the Diaspora and want to divorce in Israel, it can also be problematic, the Rabbinate hassles people if they are not the body to do the marriage (ie question validity etc). My point was more for the corrupt Diaspora Beth Dins that have no oversight, quality control or accountability that the situation is difficult enough without dealing with the corruption breaking the back of it.

    So I think from a woman’s point of view – who is already dealing with Trauma, best to avoid Diaspora Beth Dins for anything because there is no recourse at all as well as the extortion.
    The community, while sympathetic, at least to the womans face for 2 seconds before forgetting it, dont do anything (which is why the corruption exists in the first place). So better not to go down that path and the associated grief.

    The second article you posted, it appears that this is common also, the wife being abused and starved by the husband,as well as the husband taking all the funds.

    Sadly, the man tries to destroy the wifes Ketubah to then claim they are not married and then do not have any responsibility. It is the wife’s responsibility to keep the Ketubah to ‘prove’ her marriage – this includes from her husband. The practical application of this is the husband going through the house to find the Ketubah – there is after all so many places one can hide a Ketubah – so this also has proven to be a very traumatic and problematic area that the wife cannot protect herself against well. If the wife cannot produce the document because the husband destroyed it – there are huge further problems she is faced with.
    Any husband going through divorce will quickly gain these types of advices (and many others not mentioned) from others and men jump on board to make sure he is OK at the wife’s detriment.

    Its a nightmare and I look forward to the Sanhedrin being formed to deal with the issue, including the accepted culture of recalcitrant husbands, corrupt Beth Dins, Rabbinate problems etc. Once again this mostly wont apply to Diaspora Jews. The Rabbis will have a lot to answer for in their lack of protection of the women. The only comfort the women who have been completely done over by their husbands, the Rabbis, the Community, and the whole mess is that all will give an account to HaShem and will be brought to justice at some time in the future.
    Justice is a rare commodity in this environment for the average Jewess. Halacha as it stands today is not adapted to our needs, and cannot be fixed until a Sanhedrin is in place. For this to be effective the Sanhedrin must not be corrupt :-(

  • Avigaela says:

    One more important aspect that is not well understood about Jewish Marriage is the sexual rights issue. This is uneven. The man has full sexual rights over his wife, and is free to take on other women also, whether in marriage or not. A woman is bound to her husband and is not free for other men, she is to remain for him only.

  • Joe in Australia says:

    Avigaela, while I don’t want to single out your last comment in any way, I also don’t want anyone to think that people are being silent because they agree with you. So, for the record, that last comment is absolutely false, and I simply don’t have the time or inclination to read or respond to your other ones.

  • Avigael says:

    Another important aspect to know is that even if you manage to do a War proof bunker withholding Ketubah, you are able to present it to a non-corrupt Beth Din (in your dreams) – On dissolution of the marriage, the Ketubah is way down on the totem pole of priorities to be honored. So most of all the other legal commitments of the man have to be paid out first – if there is anything left by the time you get down to Ketubah priority – if your lucky there might be something left to pay out. The entire situation is lose / lose for the woman – part of our punishment, which is entirely humiliating and devastating.

    BTW the ‘Avigaela’ above is me – it was a typo. Joe, sorry to break the painful news but Chazal has ruled this way and no one can overturn it, until a new Sanhedrin is in place. Theres a current article on JPost about this now.

    Another interesting article on the Diaspora / Israel status to further the above discussion.

    http://www.haaretz.com/jewish-world/jewish-world-opinions/.premium-1.579488

    Also, there also needs to be pointed out that some men are also chained, with wives not accepting the Get, which is less problematic legally however still very stressful for men, so they dont escape the pain either (even if its much less than what women suffer).

Leave a comment!

You must be logged in to post a comment.