The Components of a Halakhic Marriage

  • Rav David Brofsky
 
There are two parts, or two stages, to a halakhic marriage: kiddushin (eirusin) and nisu’in. Although these two parts are currently performed on the same day, at the wedding ceremony, in Talmudic times, they were separated by a significant period of time, up to twelve months (Ketubot 48b). As we shall see, the first part, kiddushin, is achieved in one of three ways: kesef (giving something worth at least a peruta to the woman), shetar (a marriage document), or bi’ah (sexual relations performed with the intention of marriage). The act of kiddushin must also include a statement of intent, as well as two witnesses.
 
What is the halakhic significance of kiddushin, as opposed to nisu’in?
 
After kiddushin, the couple is considered to be “married,” and therefore a woman cannot marry another man (tefisat kiddushin). Sexual relations with the woman are punishable by mitat beit din and the offspring of such relations would be considered mamzerim. After kiddushin, the relationship can only be terminated through a get.
 
However, the nature of the relationship between the man and woman changes still further after the nesu’in. The punishment for adultery is different if a woman is an arusa (sekila) or nesu’a (chenek). Mi-de’oraita, after nesu’in, a husband may annul his wife’s vows, and if he is a kohen, he must become impure for his wife’s burial (Kiddushin 10a). Mi-derabbanan, a husband acquires the rights to his wife’s “ma’aseh yadeha” (handiwork) after nisu’in. In addition, only after nisu’in does a husband become responsible for providing clothing for his wife and to fulfill his marital duties, and he inherits his wife’s belongings in case of death (Kiddushin ibid.); the Rishonim disagree regarding whether these laws are Biblical or Rabbinic. A man and woman may only engage in sexual relations after nisu’in (see Rambam, Hilkhot Ishut 10:1).
 
Kiddushin appears to initiate a formal, legal relationship between a man and woman, while nisu’in and its halakhic ramifications reflect the more intimate relationship between husband and wife.
 
Kiddushei Kesef
 
The mishna (Kiddushin 2a) teaches:
 
A woman is acquired [i.e., becomes betrothed to a man to be his wife] in three ways, and she acquires herself [i.e., she terminates her marriage] in two ways. She is acquired through money, through a document, and through sexual relations.
 
The term “nikneit” (is acquired), as well as the manner in which kiddushei kesef is performed, has led to the misimpression that kiddushin is truly a form of acquisition, in which a man “purchases” a woman. Although there are a handful of sources that appear to support this claim (see, for example, Tosafot Ha-Rosh Ketubot 2a, s.v. nistachfa, and Kiddushin 5a, s.v. ve-hai; see also Avnei Milu’im 29b), there is no halakhic evidence that kiddushin affects a kinyan or ownership of any sorts. Furthermore, the Talmud generally chooses a different verb to describe the forming this relationship: le-kadesh, which does not reflect kinyan, but rather, designation, or even consecration (le-kadesh). 
 
If so, how are we to understand the process and nature of kiddushin? We will begin by briefly analyzing the first of the three means of betrothing: kiddushei kesef.
 
As mentioned above, the mishna lists kiddushei kesef as one of the three methods of kiddushin. The gemara (Kiddushin 2b) searches for a source for kiddushei kesef:
 
And from where do we [derive that betrothal is accomplished by means of giving] money? It is derived [by means of a verbal analogy between the term expressing] taking [stated with regard to betrothal and] from [the term expressing] taking with regard to the field of Ephron. How so? It is written here, with regard to marriage: “When a man takes (yikach) a woman” (Devarim 24:1), and it is written there [concerning Avraham’s purchase of the field of the Cave of Makhpela from Ephron the Hittite]: “I will give money for the field; take (kach) it from me” (Bereishit 23:13). [This verbal analogy teaches that just as Ephron’s field was acquired with money, so too, a woman can be “acquired” with money.] And the taking [of Ephron’s field] is called an acquisition in the Torah, as it is written with regard to the same issue: “The field which Abraham acquired” (Bereishit 25:10). Alternatively, it can be proven that purchasing a field with money is called an acquisition from the verse: “They shall acquire fields with money” (Yirmiyahu 32:44) … And what is the reason that betrothal is called kiddushin [literally, consecration] in the language of the Sages? The reason is that through betrothal the husband renders her forbidden to everyone like consecrated property. Therefore, this act is referred to as consecration.
 
The simple understanding of the gemara implies that kiddushei kesef is of Biblical origin, but some Rishonim imply that this form of kiddushin may be of Rabbinic origin (see, for example, Rashi, Ketubot 3a, s.v. shavya). The Rambam appears to believe that kiddushei kesef are of Rabbinic origin as well, describing it as “mi-divrei sofrim” (Hilkhot Ishut 1:2). However, in a responsum (Blau 355), the Rambam insists that laws derived from verses are called divrei sofrim, but their status is Biblical.
 
What is the nature of this form of kiddushin?  There appear to be two possibilities.
 
On the one hand, just as an act of kinyan entails the buyer giving the seller money in order to create a legal relationship with the object, a man similarly becomes legally connected to a woman, and her ability to remarry may even be “acquired” (kinyan issur), through the act of kiddushin. Interestingly, the Talmud did not derive this method of kiddushin from the acquisition of an object, but rather from the acquisition of a field. As far as the laws of acquisitions are concerns, acquiring land is unique. A field is not physically brought into the procession of a person. Rather, an act that symbolizes the relationship between the buyer and seller creates a new identity. Similarly, the kesef kiddushin does not reflect the “value” of the woman (see Avnei Milu’im above), but rather signifies the man’s desire to become formally and legally bound to the woman. Of course, if one focuses on the term “kiddushin,” which implies a form of consecration, then the transfer of money is certainly viewed as an expression of the man’s desire to begin a relationship that completely changes the status of the woman from a single woman to a married one.
 
Alternatively, we might suggest that the transfer of money itself does not affect the change of status. Rather, the benefit that the woman receives convinces her to devote herself, legally, to her husband. This approach is especially compelling in light of the numerous passages that imply that benefit (hana’ah) alone can create kiddushin (see Ketubot 102b; see also Kiddushin 3a-3b).
 
These two approaches appear to be the subject of debate in the gemara, as well as among the Rishonim.
 
Nature of Nisu’in
 
We already described nisu’in as initiating the more intimate aspect of marriage. What kind of process creates this new layer of relationship? Technically, what act constitutes the beginning of nisu’in? We can identify two broad approaches in the Rishonim.
 
Some Rishonim appear to maintain that an act or situation that reflects the most intimate aspect of marriage – sexual relations – initiates the beginning of nisu’in. Indeed, the verse “when a man takes a wife and is intimate with her” (Devarim 24:1), which describes these two stages of marriage, identifies nisu’in with be’ila, intimacy or sexual relations.
 
For example, the Rambam (Hilkhot Ishut 10:1) writes:
 
Even when [the husband] consecrated [his arusa] by having sexual relations with her, he is forbidden to engage in sexual relations with her again until he brings her to his home, enters into privacy with her, and thus singles her out as his [wife]. [Their entry into] privacy is referred to as entry into the chuppa, and it is universally referred to as nisu'in. When a man has relations with his arusa for the sake of [establishing] nisu'in after he has consecrated her, the relationship is established at the beginning of sexual relations. This causes her to be considered his wife with regard to all matters.
 
The Rambam appears to believe that one can achieve nisu’in either through marital relations, or even after yichud (seclusion), known as the chuppa. It is not surprising, therefore, that the Rambam maintains that this seclusion must be “reuy le-bi’a.” Therefore, if the bride is currently in a state of ritual impurity (after menstruation), and they are thus prohibited from having marital relations, the nisi’un is not achieved: 
 
Once an arusa has entered the chuppa, her husband is allowed to have relations with her at any time he desires, and she is considered to be his wife with regard to all matters. Once she enters the chuppa, she is called a nesu'a, although [the couple] has not engaged in sexual relations.
 
[The above applies when] it is fitting to engage in relations with the woman. If, however, the woman is in the nidda state [when relations are forbidden], the marriage bond is not completed and she is still considered to be an arusa, although she entered the chuppa and remained in seclusion [with her husband].
 
This issue is subject to debate (see Shulchan Arukh, EH 61:1); we will discuss this specific issue on another occasion.
 
Others suggest that nisu’in is initiated in a more formal manner which reflects their marital relationship. For example, the Ran (Ketubot 1a, s.v. oh) cites a view that describes nisu’in as the bride entering the husbands “domain” (see also Hagahot Ha-Gra, Shulchan Arukh, EH 55:9). Interestingly, some Rishonim (see Tosafot, Yoma 3b, s.v. le-chada) maintain that the bride going out with her special head covering (hinuma) marks the beginning of  nisu’in. This view is somewhat curious, as according to our custom, the nisu’in would thus be performed at the “badeken” (when the chatan lowers the veil over the bride’s face), which occurs before the kiddushin.
 
These approaches lead us to ask a number of important and relevant questions. First, must the kiddushin, by definition, precede the nisu’in? In other words, does the nisu’in add another layer to, and thus complete, the marriage process, or do both the kiddushin and nisu’in reflect (and initiate) different aspects of the marriage, so that theoretically, the nisu’in may be performed before the kiddushin? The Mishneh La-Melekh (Hilkhot Ishut 10:2) discusses this question (see also Hagahot Mordekhai, Kiddushin 2:546). Similarly, Acharonim (see Ohr Sameach, Hilkhot Ishut 10; Avnei Nezer 38:17) discuss whether the nisu’in requires witnesses (edim). Some explain that if the nisu’in is simply an expression of their marital relations, then there would be no need for witnesses, while if it is initiated by another formal act, it may require witnesses. 
 
The Shulchan Arukh (EH 55:1) cites a number of views regarding the definition of nisu’in/chuppa. R. Yosef Karo writes:
 
This seclusion (yichud) is known as entering into the chuppa, and it is called marriage in all places.
 
R. Moshe Isserles (Rema) adds:
 
There are those who say that the chuppa is not considered seclusion. Rather, the groom must bring her into his house for the purposes of marriage (Ran at the beginning of Ketubot).
 
And there are those who say that the chuppa is when they spread a cloth over her head at the time of the blessing, and there are those who say that a virgin's chuppa is when she goes out in a headdress, and for a widow when they become secluded.
 
The Rema concludes:
 
The simple custom nowadays is to call the chuppa a place where they place a cloth on poles and bring the groom and bride underneath in public, and he betroths her there and they say the blessings of betrothal and marriage, and then they walk them to their house and they eat together in a secluded place. This is how the chuppa is done now.
 
Incidentally, there are different customs regarding whether to arrange yichud after the wedding ceremony. Traditional Ashkenazic custom, as mentioned above, is that the chatan and kalla are secluded after the chuppa, in the presence of edim. Some Sephardim do not follow this practice.
 
KETUBA
 
The third central component of a halakhic marriage is the ketuba. What is the role of the ketuba in a Jewish wedding? What is its content, and what are the obligations of the husband?
 
Origin and Nature of the Ketuba
 
What is the source and nature of the obligation to write a ketuba? The Talmud (Ketubot 10a) cites a debate between Rabban Shimon ben Gamliel and R. Nachman regarding the origin of the obligation of ketuba:
 
It was stated: R. Nachman said that Shmuel said in the name of R. Shimon ben Elazar: The Sages instituted the marriage contract for Jewish women: For a virgin two hundred dinars and for a widow one hundred dinars… Since [it the obligation of ketuba] is a rabbinic ordinance, she may collect only from the husband’s land of the most inferior quality.
Rabban Shimon ben Gamliel says: The marriage contract of a woman is an obligation by Torah law. And did Rabban Shimon ben Gamliel say that? Is it not taught [in a baraita, citing the verse with regard to a seducer]: “He shall pay money according to the dowry of virgins” (Ex. 22:16) – The Torah establishes that this fine will be like “the dowry of a virgin,” and that “the dowry of a virgin” will be like this fine, i.e., fifty silver sela, or two hundred dinars. From here the Sages based their determination that a woman’s marriage contract is an obligation by Torah law. Rabban Shimon ben Gamliel says: The marriage contract of a woman is not an obligation by Torah law, but is by rabbinic law. [The gemara resolves the contradiction between the statements of Rabban Shimon ben Gamliel:] Reverse [the attribution of opinions in this baraita, such that it is actually Rabban Shimon ben Gamliel who maintains that the ketuba is a Torah obligation].
 
Rabban Shimon ben Gamliel apparently maintains that the basic obligation of the ketuba, at least regarding a betula, is mi-deoraita. Just as the man who seduces a young woman (na’ara) and marries her must per a certain dowry of 200 zuzim, so whenever marrying a betula one must commit to a dowry of 200 zuzim. R. Nachman maintains that the obligation of ketuba is rabbinic, as the gemara (Yevamot 89a) says, “What is the reason that the Sages instituted a marriage contract in general, for an ordinary woman? So that she will not be demeaned in his eyes such that he will easily divorce her.”
 
Before Rabbeinu Gershom (11th century) prohibited polygamy and divorce without consent, the institution of ketuba indeed served to discourage men from hastily divorcing their wives, as they would have to pay the amount written in the ketuba. This led the Rema (EH 66:3) to suggest that “Nowadays, in our lands, in which men do not divorce their wives without consent due to the ruling of Rabbeinu Gershon ... one may be lenient regarding the writing of the ketuba, although the custom is not so, and one should not change [the custom].”
 
The gemara and Rishonim note that this debate may have numerous practical ramifications regarding the credibility of the husband to determine whether his wife has violated the terms of the ketuba (Ketubot 9a), the quality of land from which the ketuba is collected (ibid.), as well as whether the sum is determined by the currency’s value at the time of the signing or at the collection of the ketuba (ibid.). In addition, the Rishonim note that the required language of the ketuba, as well as the ultimate value of the coins referred to in the ketuba, may also be a function of this question.
 
Rabbeinu Tam (Tosafot, Ketubot 10a, s.v. amar) rules in accordance with Rabban Shimon ben Gamliel, noting that it is customary to write in the ketuba “which rightfully yours from the Torah” (de-chazi likhi mi-deoraita). Most Rishonim disagree with this view. The Rosh (Ketubot 1:19), for example, maintains that the obligation is only rabbinic. However, he maintains that the text of the ketuba should still refer to the money as being “mi-deoraita,” which may impact upon the manner in which the payment is performed (as if it is a Biblically created debt). Others argue that the entire obligation and its rules are mi-derabbanan (Rabbeinu Chananel, cited by the Rosh), and that the phrase “mi-deoraita” should not appear in the ketuba (Maharam, cited by Hagahot Maimoniot, Hilkhot Ishut 10:6).
 
Some Rishonim adopt a middle opinion, claiming that the general obligation to provide financial security in case of divorce or death of the wife is a Biblical obligation, but the details, including the amounts, are rabbinically prescribed.
 
The Rambam’s Opinion
 
The Rambam appears to advance a very important position. On the one hand, in a number of places he rules in accordance with the opinion that maintains that the ketuba obligation is rabbinic. For example, he writes (Hilkhot Ishut 10:7):
 
[A man] must write a marriage contract (a ketuba) [for his wife] before their entry into the chuppa; only afterward is he permitted to live with his wife… It was our Sages who ordained the requirement of [writing] a ketuba for a woman. [They instituted this obligation] so that it would not be a casual matter for [her husband] to divorce her
 
Similarly, he writes (Hilkhot Ishut 11:14):
 
Our Sages were those who instituted the fundamental requirement of a marriage contract for a woman, and they also instituted [the following consideration]: Whenever [a man] makes a claim that his wife was not a virgin, and the woman disputes his claim, [the husband's claim] is accepted. It is the woman's responsibility to bring support for her claim, not the man's.
 
This view is in accordance with R. Nachman, who rules that the ketuba obligation is mi-derabbanan.
 
However, elsewhere he implies that the ketuba has a different, Biblical origin. For example, in his introduction to Hilkhot Ishut, he writes the there is a positive commandment to “marry a woman, granting her the rights of the formal marriage contract (ketuba) and sanctifying the relationship through the rites of kiddushin,” and there is a prohibition to “have relations with a woman unless she has been granted a ketuba and the relationship is sanctified through the rites of kiddushin” (see also Sefer Ha-Mitzvot, neg. commandment 355 with Ramban).
 
The Rambam seems to maintain that while the formal obligation of ketuba is Biblical, its form and details are rabbinic. What is the nature and purpose of this idea? The Rambam appears to believe that the ketuba is not just a monetary obligation; it is a defining factor of the marriage.
 
The role of the ketuba may reflect the difference between the mitzva of marriage and the prohibition of “panuy haba al ha-penuya,” according to the Rambam. The Rambam does not only prohibit prostitution (kedeisha); all relationships that are not first formalized by kiddushin and ketuba are by definition inappropriate and therefore prohibited. In other words, kiddushin, and the ketuba, in its Biblical sense, are meant to transform a fleeting sexual relationship into a relationship based on obligation and responsibility. That is also why, according to the Rambam, pilagshot are prohibited.
This insight contributes much to our understanding of marriage and its relationship to the ketuba.
 
Content of the Ketuba
 
The ketuba is made of up numerous sections. There are four financial obligations mentioned in the ketuba: the basic ketuba obligation (ikar ketuba), the tosefet ketuba (the additional obligation), the nedunia (dowry) that the woman brings into the marriage, and the husband’s acceptance of financially responsible for the nedunia (tosefet nedunia). In addition, the ketuba testifies to the marriage and the husband’s commitment to bear responsibility for the ketuba. Finally, the ketuba, like other legal documents (shetarot), includes the names of the bride and groom, the date, and the signatures of those who witnessed the groom’s acceptance of the ketuba obligations.
 
1. Testimony to the Marriage:
The ketuba begins with an account of the marriage and the marital obligations that the husband accepts upon himself:
 
…The bridegroom [...] son of [...] said to this [...] daughter of [...], “Be my wife according to the law of Moses and Israel. I will work honor, feed and support you in the custom of Jewish men, who work, honor, feed, and support their wives faithfully.”
 
The ketuba relates how the husband betroths his wife, and commits to “honor, feed, and support [her] in the custom of Jewish men.” 
 
This part of the ketuba appears to testify to the marriage of the couple. Some Acharonim suggest that the ketuba may therefore not be written and signed the day before the wedding, as it would appear to be dishonest. Others insist that we should not relate to this section as if it were testimony. Indeed, at most weddings, the ketuba is signed and the husband accepts these obligations upon himself before the wedding.
 
2. The Basic sum of the Ketuba
The ketuba describes the basic obligation of the ketuba. The mishna (Ketubot 1:2) teaches that the ketuba of a betula (virgin) is 200 zuz. It is customary to write the ketuba for 200 zuz for almost all women who are married for the first time, although in certain circumstances some are accustomed to write “iteta” (woman) instead of “betulta” (virgin) to avoid blatant dishonesty. The ketuba for an almana, gerusha, or giyoret (widow, divorcee or convert) is 100 zuz.
 
I will give you the settlement of 200/100 silver zuzim, which is due you according to [Biblical]  law, as well as your food, clothing, necessities of life, and conjugal needs, according to the universal custom.
 
The value of 100 or 200 zuz in modern currency is the subject of great debate. The Shulchan Arukh (EH 66:6) rules that 200 zuz is approximately 120 grams of silver, while the Rema rules that is equals 960 grams.
 
3. Dowry (Nedunia) and Tosefet Nedunia
The Rambam (Hilkhot Ishut 16:1) describes two types of dowry, the property that the woman brings into the marriage. One type, known as nikhsei tzon barzel, is recorded in the ketuba. The husband has full use of this property, but also takes full responsibility for it in the case of loss. Another type, nikhsei melug, is not recorded in the ketuba. Although the husband benefits from the profits of nikhsei melug, it belongs to the wife and remains her sole responsibility.
 
In the Middle Ages, Ashkenazic communities began writing a uniform amount as the nedunia, so as not to embarrass those who did not have a lot of property to bring into a marriage (Raavan, Hilkhot Ketubot, s.v. af al pi; Maharam of Rothenburg 4:673): 
 
Ms. [...] agreed, and became his wife. This dowry that she brought from her father’s house, whether in silver, gold, jewelry, clothing, home furnishings, or bedding, Mr. [...], our bridegroom, accepts as being worth [...] silver pieces (zekukim).
 
The groom commits to an additional sum of money, which covers his responsibility for the dowry.
 
4. Tosefet Ketuba
It is customary for the groom to commit to an additional sum, known as the “tosefet ketuba.” In diaspora communities, the tosefet usually appears as “100 zekukin kesef.” In many communities in Israel, it is customary to write a specific shekel amount, often corresponding to a year’s salary. Many authorities caution against writing an exorbitant sum, which may be viewed as an asmakhta and not an honest commitment.
 
Our bridegroom, Mr. [...] agreed, and of his own accord, added an additional [...] silver pieces (zekukim) paralleling the above. The entire amount is then [...] silver pieces (zekukim).
 
The groom then summarizes the total amount that the groom accepts upon himself.
 
5. At the end of the ketuba, the groom backs up his commitment with financial insurances.
 
Mr. [...] our bridegroom made this declaration: “The obligation of this marriage contract (ketuba), this dowry, and this additional amount, I accept upon myself and upon my heirs after me. It can be paid from the entire best part of the property and possessions that I own under all the heavens, whether I own [this property] already, or will own it in the future. [It includes] both mortgageable property and non-mortgageable property. All of it shall be mortgaged and bound as security to pay this marriage contract, this dowry, and this additional amount. [It can be taken] from me, even from the shirt on my back, during my lifetime, and after my lifetime, from this day and forever.”
 
If necessary, the ketuba may be collected from the groom’s property, and even from property that he will acquire in the future.
 
6. Finally, the witnesses testify that the groom performed a kinyan, through which he commits to the obligations that appear in the ketuba.
 
This kinyan, known as a kinyan sudar, is a form of a kinyan chlipin. In a traditional kinyan chalipin, the mokher and loke’ach (seller and buyer) perform a trade; the loke’ach gives a keli (vessel/object) to the mokher, and the mokher transfers ownership of the object/property. The Rema (see Shulchan Arukh, CM, Hilkhot Mekach U-Memkar 195:3) writes that in the case of matanot (gifts), it is common for the witnesses to give the keli to the mokher, and for the mokher to then give the gift, legally, to the recipient.
 
In the case of the ketuba, the rabbi, serving as the agent of the bride, gives the keli (often a cloth, or pen) to the groom, who thereby legally commits to that which is written in the ketuba. The witnesses observe this kinyan and then sign the ketuba.
 
The witnesses sign their names, testifying that they witnessed the proper execution of the ketuba.
 
And we have completed the act of acquisition from Mr.[...] son of [...] our bridegroom, to Ms. [...] daughter of [...], regarding everything written and stated above, with an article that is fit for such a kinyan. And everything is valid and confirmed.