Marriage Laws

Age for Marriage.

The first positive commandment of the Bible, according to rabbinic interpretation (Maimonides, "Minyan ha-Miẓwot," 212), is that concerning the propagation of the human species (Gen. i. 28). It is thus considered the duty of every Israelite to marry as early in life as possible. Eighteen years is the age set by the Rabbis (Ab. v. 24); and any one remaining unmarried after his twentieth year is said to be cursed by God Himself (Ḳid. 29b). Some urge that children should marry as soon as they reach the age of puberty, i.e., the fourteenth year (Sanh. 76b); and R. Ḥisda attributed his mental superiority to the fact that he was married when he was but sixteen years old (Ḳid. l.c.). It was, however, strictly forbidden for parents to give their children in marriage before they had reached the age of puberty (Sanh. 76b). A man who, without any reason, refused to marry after he had passed his twentieth year was frequently compelled to do so by the court. To be occupied with the study of the Torah was regarded as a plausible reason for delaying marriage; but only in very rare instances was a man permitted to remain in celibacy all his life (Yeb. 63b; Maimonides, "Yad," Ishut, xv. 2, 3; Shulḥan 'Aruk, Eben ha-'Ezer, 1, 1-4; see Celibacy).

The duty of marriage is discharged after the birth of a son and a daughter (Yeb. 61a). Still no man may live without a wife even after he has many children (ib.). Women are exempted from the duty of marriage, although, to avoid suspicion, they are advised not to remain single (ib. 65b; "Yad," l.c. 2, 16; ib. Issure Biah, xxi. 26; Eben ha-'Ezer, 1, 13; see Woman).

The consent of parents is not essential to the validity of a marriage (Shulḥan 'Aruk, Yoreh De'ah, 240, 25, Isserles' gloss). The Rabbis, however, urge great care in the choice of a wife. He who marries a woman unworthy of him is bound by Elijah and chastised by God; and concerning him Elijah writes, over the signature of God, "Wo unto him who profanes his children and degrades his family" (Ḳid. 70a; Derek Ereẓ R. i.). According to R. Akiba, he who marries a wife that is unworthy of him transgresses five Biblical commandments (Ab. R. N. xxvi. 4). While all families are presumptively pure and respectable, those that are at constant warfare with one another, or whose members are accustomed to call one another shameful names, or are known for their acts of cruelty and uncharitableness, are under suspicion of being of impure descent (Ḳid. 71b, 76b). The families most desirable for matrimonial alliances, according to the Rabbis, were classified in the following order: those of the scholar; the most prominent man of the community; the head of the congregation; the collector for charity; and the teacher of children. The family of the ignoramus ("'am ha-areẓ") is to be avoided, and one should not give his daughter in marriage to such a person (Pes. 49b; "Yad," Issure Biah, xxi. 32; Eben ha-'Ezer, 2; see 'Am ha-Areẓ).

To the degrees of prohibited marriages enumerated in the Bible (Lev. xviii. 6-18, xx. 11-21), the Rabbis added some new degrees, besides extending those mentioned in the ascending and the descending line. These additions are known in the Talmud by the name of "sheniyyot," i.e., secondary, such asare given on the authority of the Soferim ("Scribes"). See Ḥaliẓah; Incest; Levirate Marriage.

Prohibitions of Marriage.

Prohibitions of marriage on grounds other than those of consanguinity refer to the following: (1) Mamzers, persons born of incest or of adultery; they are not permitted to marry Israelites (see Bastard; Foundling; Illegitimacy; Incest). (2) Ammonites or Moabites; they may not marry Israelitish women. (3) Egyptians or Idumeans to the third generation. (4) Nethinim or Gibeonites. The Rabbis declare: "Now all proselytes are permitted to marry Israelites; and we do not suspect that they are descendants of any of the nations forbidden in the Bible" ("Yad," Issure Biah, xii. 25; Tosef., Ḳid. v. 6; Yad. iv. 4; Ber. 28a; see Intermarriage; Proselytes). (5) Slaves. (6) Spadones, i.e., persons forcibly emasculated, but not those that are born so. When the defect is the result of a disease, there is a difference of opinion among the authorities (Eben ha-'Ezer, 5).

Prohibited Degrees.

One who is suspected of having committed adultery with another man's wife is not permitted to marry her after she has been divorced or after she has become a widow (Soṭah 25a; Yeb. 24b; see Adultery). The Biblical prohibition forbidding one to remarry his divorced wife after she has been married to another (Deut. xxiv. 4) is extended by the Rabbis to the following cases: No one may remarry his divorced wife if he divorced her on suspicion of adultery, or because she had subjected herself to certain vows, or on account of her barrenness (see Divorce). Those who assist at a divorce proceeding, or the witnesses who testify to the death of an absent husband, may not marry the woman thus released (Yeb. 25a; Giṭ. 45a; "Yad," Gerushin, x. 13; Eben ha-'Ezer, 10, 3; 12, 1-2).

Besides the proselyte and the profane (Ḥalalah) or the divorced woman (Lev. xxi. 17 [A. V. 14]), the descendants of Aaron were forbidden to marry also the "ḥaluẓah," the woman who performed the ceremony of Ḥaliẓah ("loosening the shoe") upon her deceased husband's brother (Yeb. 24a). A priest's wife who had been criminally assaulted had to be divorced by her husband (ib. 56b). A woman captured by an enemy in time of war was under suspicion of having been assaulted by her captors, and hence priests were forbidden to marry her, unless witnesses who were with her during the whole time of her captivity testified that she had not been assaulted (Ket. 22a, 27a). The Rabbis insisted on the fulfilment of these laws even after the Temple had been destroyed and the priestly office abolished; and they compelled an Aaronite, under penalty of excommunication or other means, to divorce the woman that he had married contrary to the Law ("Yad," Issure Biah, xvii.-xx.; Eben ha-'Ezer, 6, 7; see Priestly Code).

Remarriage.

There are some prohibitions which relate specifically to the woman's remarriage. A woman who was twice widowed, if both husbands died natural deaths, might not marry again (Yeb. 64b; "Yad," l.c. xxi. 31; Eben ha-'Ezer, 9). A widow or a divorced woman might not remarry before the expiration of ninety days from her husband's death or from the time when the bill of divorce was handed to her. This provision was made in order to ascertain whether she was pregnant, and that in the event of her being so the paternity of her child might be established. For the sake of uniformity the Rabbis required the woman to wait that length of time even when there could be no suspicion of pregnancy. If she was visibly pregnant, she might not remarry until after her delivery, and even then, if the child lived, she was required to wait until it was twenty-four months old. A woman who had an unweaned child was required to wait the same period. If the child died during the interval, she might remarry immediately (Yeb. 41a, 42a; "Yad," Gerushin, xi. 18-28; Eben ha-'Ezer, 13; see Divorce; Widow).

There are certain times during which marriage is forbidden. During the first thirty days of mourning after the death of a near relative no marriage may be entered upon. A widower may not remarry until three festivals have passed after the death of his wife. If, however, she left him with little children needing the care of a mother, or if he had not yet discharged his duty of propagating the species, i.e., if he had no children (see above), he might remarry after a lapse of seven days (M. Ḳ. 23a; "Yad," Ebel, vi. 5; Yoreh De'ah, 392). No marriage might be entered upon on Sabbaths, holy days, or the week-days of the holy days, except in very urgent cases (Beẓah 36b; "Yad," Shabbat, xxiii. 14; ib. Ishut, x. 14; Eben ha-'Ezer, 64, 5; Oraḥ Ḥayyim, 339, 4, 524, 1, Isserles' gloss). The first nine days of the month of Ab were regarded as days of mourning and no marriage might then be performed. Some extended this prohibition to the three weeks intervening between the fast of the Seventeenth of Tammuz and that of the Ninth of Ab (Oraḥ Ḥayyim, 551, 2, 10, Isserles' gloss, and commentaries). The period between Passover and Shabu'ot ("Sefirat ha-'Omer") was also regarded as one of mourning; and no marriage might be performed during this time, except on a few specified days. In some places it was customary to refrain from marriage only until the thirty-third day of the Omer (ib. 493, 1, Isserles' gloss; see Mourning; Omer).

Conditions.

Marriage, being regarded also as a civil transaction, required the consent of the contracting parties in order to make it valid (see Consent). Hence idiots or imbeciles were considered incapable of contracting a legal marriage (see Insanity). The deafmute was also debarred from entering a legal marriage for the same reason, but the Rabbis sanctioned the marriage of a deaf-mute if contracted by means of signs (see Deaf and Dumb in Jewish Law). Minors (i.e., such as have not reached the age of puberty, which was held to begin at thirteen years in males, and twelve in females), are also precluded from contracting marriages (see Majority). A daughter who was a minor could be given in marriage by her father; and such a marriage was valid. In the case of her father's death, her mother or her brothers could give her in marriage, subject to her confirmation or annulment on her reaching the age of puberty(see Mi'un). A marriage contracted under certain conditions was valid when the conditions were fulfilled. The conditions had to be formulated in accordance with the general laws governing conditions (see Conditions).

In rabbinic times there were two distinct stages in the marriage ceremony: (1) its initiation or the Betrothal ("erusin"), and (2) its completion or the marriage proper ("nissu'in"). These might or might not have been preceded by an engagement ("shiddukin"), although the prevailing custom was to have a formal engagement before marriage, when a contract ("tena'im") was drawn up in which the parties promised, under the penalty of a fine ("ḳenas"), to be married at an appointed time (see Breach of Promise of Marriage). The Rabbis regarded it as improper to marry without a previous engagement, and would punish one who did so, although the act itself was considered valid (Ḳid. 12b: "Yad," Ishut, ii. 22; Eben ha-'Ezer, 26, 4).

The betrothal was effected in any of the three following ways: (1) by the man handing a coin (a peruṭah, the smallest Palestinian coin, was sufficient for the purpose) or its equivalent to the woman in the presence of two competent witnesses, and pronouncing the words "Be thou consecrated to me," or any other phrase conveying the same idea; (2) by the man handing a contract ("sheṭar") to the woman containing the same formula; (3) by actual cohabitation between groom and bride. This last form of betrothal was discouraged by the Rabbis; and sometimes such a procedure met with severe punishment at the hands of the authorities. The manner of betrothal first mentioned seems to have been the most common, but later this was modified, so that instead of money the man gave his bride a ring, plain, and made of gold, the value of which was constant and well known (Tos., Ḳid. 9a, s.v. "Wehilketa"; Eben ha-'Ezer, 27, 1; 31, 2, Isserles' gloss; see Betrothal). The act of betrothal might be performed also by proxies appointed either by the bride or by the groom or by both; but it was recommended that the contracting parties be present at the ceremony ("Yad," Ishut, iii. 19; Eben ha-'Ezer, 35, 36). After betrothal the parties were regarded as man and wife; and the act could be dissolved only by death or by a formal bill of divorce. If the woman proved unfaithful during the period of betrothal she was treated as an adulteress, and her punishment (that of stoning; Deut. xxii. 23, 24; Sanh. 66b) was considered to be much more severe than that (strangulation) inflicted upon the unfaithful married woman (Deut. xxii. 22; Sanh. 52b). The parties were not, however, entitled to conjugal rights, nor were they bound by the obligations of married life (see Husband and Wife).

After the lapse of a certain period from the time of betrothal (twelve months if the bride was a virgin and a minor, and thirty days if she was an adult or a widow; Ket. 57b), during which the bride could prepare her trousseau, the marriage proper was celebrated. This was attended with the ceremony of home-taking ("liḳḳuḥin" or "nissu'in") and isolation of the bridal pair in the bridal chamber ("ḥuppah"). From that time they became husband and wife, even if there was no cohabitation. Various ceremonies attended the act of marriage (see Marriage Ceremony). An important feature was the handing over of the marriage contract ("ketubah") to the bride. In later times the two stages of marriage were combined, a custom universally followed at the present time.

Besides the cross-references cited above see Conferences; Dowry; Ketubah; Pilegesh; Polygamy.

Bibliography:

  * Hamburger, R. B. T. i., s.v. Ehe; ii., s.v.Trauung;
  * Mayer, Rechte der Israeliten, Athener, und Römer, ii.; sections 207-231, Leipsic, 1866;
  * Saalschütz, Das Mosaische Recht, ch. cii.-cv., Berlin, 1853;
  * Weill, La Femme Juive, Paris, 1874;
  * Buchholz, Die Familie, Breslau, 1867;
  * Duschak, Das Mosaisch-Talmudische Eherecht, Vienna, 1864;
  * Fränkel, Das Jüdische Eherecht, Munich, 1891;
  * Bergel, Die Eheverhältnisse der Alten Juden, Leipsic, 1881;
  * Mielziner, The Jewish Law of Marriage and Divorce, Cincinnati, 1884;
  * Bloch, Der Vertrag, sections 96-102, Budapest, 1893;
  * Amram, The Jewish Law of Divorce, Philadelphia, 1896;
  * Graszl, Eherecht der Juden in Oesterreich, Vienna, 1849;
  * Fassel, Das Mosaisch-Talmudische Civilrecht, i., §§ 44-121, Vienna, 1852;
  * Lichtenstein, Die Ehe nach Mosaisch-Talmudischer Auffassung, Leipsic, 1879;
  * Fränkel, Grundlinien des Mosaisch-Talmudischen Eherechts, Breslau, 1860.



S. S. J. H. G.