Volume 43 Number 13
                 Produced: Mon Jun 21  7:14:00 US/Eastern 2004

Subjects Discussed In This Issue: 

Deliberately Invalid Marriages (5)
         [Anonymous, Keith Bierman, Nathan Lamm, Josh Backon, Martin
Shidduch rules.
         [Nathan Lamm]


From: Anonymous
Date: Thu, 17 Jun 2004 23:05:38 -0400
Subject: Re: Deliberately Invalid Marriages

        Our sages taught us that those who lack the knowledge of "tiv
gittin v'kidushin," meaning "the quality" or "the fine points" of the
laws of the marriage and divorce processes, should have no business with
them.  Given some of the misstatements and mistaken assumptions that
have permeated the recent discussion of deliberately invalidating
mariages, perhaps the prohibition should be extended to the discussion
of those points on-line.  Folowing, in no particular order, is a
compilation of these misstatements (emphases mine).

> there should be two channels that citizens can choose to go by..the
> traditional one under the auspices of the rabbanut and a 'civil' one
> where there is no kiddushin/ketubah type ceremony. **With the latter,
> the only halachic issue is that one is not fulfilling the positive
> mitzva of kiddushin and there would be no halachic issue with the
> children.**

        Indeed? Cohabiting outside marriage is a violation of a lav
(negative commandment).  It is a far more severe one if the woman is
married, rendering the adulterers liable for capital punishment, but
even if both partners are single, it is still a prohibition rendering
the couple liable for malkos (corporal punishment).

> I have no idea if it is true, but if it is, the practice is
> outrageous, disgusting, and useless. Why useless? I remember reading
> early on that there are three ways one may perform kidushin. One is by
> giving a gift with the intent to marry, the second is by a contract,
> and the third is by sexual relations (usually understood as only
> applying when there is intent to marry.) Even if the second step of
> marriage (nisuin) is not performed, one who goes through kidushin
> needs to give a get (Jewish divorce) if the relationship breaks up
> afterwards. If these rabbis are invalidating the marriage ceremony, it
> doesn't matter. **The first time the newlywed couple sleeps together
> as man and wife, they will have officially gone through kidushin and a
> get will be required in the event of divorce.**

        While cohabitation is a means of effecting kiddushin, it -- like
the other two methods -- requires two kosher witnesses.  Granted, they
need not see the actual act, but it is required that the couple go, in
the presence of the witnesses, into a room where no one else is present,
and that it be obvious, by word or deed, that the purpose is to have
relations for the sake of effecting marriage.

> It's my understanding that any one of the three (gift, document,
> cohabiting -- my addition) you quote is sufficient. Today we use two
> of them in practice, the ring and **the ketuba.**

        The k'suba is _not_ a marriage document.  It is an assumption of
certain financial obligations on the part of the husband should the
marriage terminate by reason of divorce or his death.  Marriage by
contract means that the groom gives the bride, in the presence of
witnesses, a document which states that he marries her by the conveyance
of the document; and as he gives it to her, he says "harei at" akin to
what is said when he puts the ring on her finger -- "Be consecrated to
me by this document according to the laws of Moshe and Israel."

> but it's my understanding that witnesses are not required for a
> marriage to take place. Witnesses are required for their to be proof
> of the marriage that will stand up in court, should its validity be
> contested.

        As mentioned above, kidushin, to be valid, must be performed in
the presence of two kosher witnesses.  They are _not_ there for proof,
although they can of course testify to what they witnessed.  Their
presence is what makes the act of ring-giving an act of marriage. If a
couple comes into court, and they state that the man gave the woman a
ring and said "harei at," there is no doubt that we believe them, but it
makes no difference -- it's not a marriage.  We believe them that they
did it, but their doing accomplished nothing.

>Orthodox Jews in America are usually advised (very privately) to look
>away during the important parts of non-orthodox weddings

        I have attended many non-Orthodox weddings, and I have never
been advised to look away.  In fact, I have served as a chosen
witness. (I do consider myself Orthodox.)

        There were other statements made about marriages being
retroactively undone by disqualifying the witnesses. Would that it would
be so easy!  The cases in which a marriage is shown to have been void
because of the total absence of kosher witnesses are few and far
between.  It is necssary to establish that all males present, with at
most one exception, were either close relatives of the bride, of the
groom, or of each other (with a specific, technical definition of "close
relative"), or are guilty of committing violations of Torah commandments
of a monetary nature (e.g., stealing, lending to or borrowing from
fellow Jews at interest) or of a negative Torah commandment bearing the
penalty of corporal or capital punishment (e.g., violating Shabbos,
eating Biblically prohibited foods, shaving with a razor, wearing
shatnez [a blend of wool and linen], cohabiting outside of marriage).
Since there is a presumption of eligibility absent proof to the
contrary, it is no simple matter to establish disqualification.

From: Keith Bierman <Keith.Bierman@...>
Date: Thu, 17 Jun 2004 13:57:41 -0700
Subject: Re: Deliberately Invalid Marriages

Many sage things were said by many posters. But I think we may be
missing "the forest for the trees".

The discussion was kicked off by reference to someone's personal blog,
where the blogger clearly was privy to *part* of the current situation,
but didn't understand the why of the situation. We, being
traditionalists, have gone deep into the details of how ...

When I was studying in Israel, I recall asking my Talmud Rav about the
situation with Agnot. He observed that there is no fundamental problem
"because we can always find a flaw". This was, I thought, a great
example of how a Posek could (and should) act in individual cases to
prevent a terrible injustice. However, it did seem to me that we have a
"process" flaw, in that increasing numbers of such cases occur.

Working to ensure that every wedding has such a glaring flaw that it
won't take such a Hacham to discover how to (and determine that they
should) invalidate the wedding is a procedure that will not be seen by
the non-observant as the compassitionate act on the part of the
Rabbinate that we perceive it to be.

Surely there has to be a better way to deal with the situation we find
ourselves in these days. While great poseks of the past have made
various rulings, the Godelai H'Dor of our generation ought to be able to
deal with this systemtically and openly (and perhaps determing that in
our generation, cival divorce *is* sufficient (although not the favored
approach) or some other solution. Surely it is a matter of greater
*human* import (halacha between people ;>) than the precise nature (and
requirements of) wigs.

Those that have never had a chance, may want to read a copy of *Not in 
Heaven: The Nature and Function of Halakha*
by Eliezer Berkovits 
. Whether or not his proposed solutions are right, I think he deserves a 
lot of credit for having had the courage to address the problems head on.

Keith H. Bierman    
<keith.bierman@...> ;  kbierman@acm.org
650-352-4432 voice+fax

From: Nathan Lamm <nelamm18@...>
Date: Thu, 17 Jun 2004 07:23:15 -0700 (PDT)
Subject: Deliberately Invalid Marriages

Michael <b1ethh94@...> wrote:

> Today we use two [methods of kiddushin] in practice, the ring and the
> ketuba.

This is incorrect. The ketuba is not the "shtar" mentioned in the
Gemara, and does not establish kiddushin (it's a prenup), although it
might support it and is required. We're not 100% sure how the "shtar"
method works, and so we only do the "kesef" one, with a ring.

> The third method is clearly not advised (I believe even at the time of
> the Gemara),

The Gemara in fact strongly disapproves of it.

Reagrding mamzerut, I recall once learning that there's a "don't tell"
policy- if no one (apart from the adulterers, or maybe a few others)
knows the child is a mamzer (perhaps this applies to chalalim as well),
then, for all practical purposes, s/he is not.  Does anyone know a
source on this?

From: <BACKON@...> (Josh Backon)
Date: Thu,  17 Jun 2004 19:37 +0200
Subject: Re: Deliberately Invalid Marriages

Even if the mesader kiddushin did deliberately ensure that the kiddushin
was invalid (e.g. nonkosher witnesses), the cohabitation of the
"married" couple would not be "biat znut" since almost all poskim follow
the shita of the Raavad over the Rambam (Hilchot Ishut 1:4) on the
status of the "pilegesh" (roughly translated as concubine). See the Beit
Shmuel on Even ha'Ezer 26 s"k 2. Only the pilegesh relationship is a
"kinyan mamon" in contrast to the kinyan ishut in kiddushin (see: Avnei
Miluim 42 s"k 1; Meshiv Davar IV 35).

Even if the witnesses were invalid, the kiddushin may be valid via "anan
sahadi" (see: SHU"T Chatam Sofer Eevn ha'Ezer I 100) since those present
(guests) saw the groom giving the bride a ring. Nor is a minyan required
b'diavad (Darchei Moshe on TUR Even Ha'Ezer 62 s"k 8). Even if there
were eidem pesulim,if the couple had relations following the ceremony,
this isn't "biat zenut" and the couple don't need to have another chupa
(see: SHU"T Mahari Weill 7).

So this entire scenario of deliberately invalidating a marriage ceremony
doesn't make sense.

It doesn't solve any problems. Civil marriage and marriage done by non-
Orthodox clergy have no validity since there was no "k'dat Moshe
v'Yisrael".  (Tzitz Eliezer XVI 52; Yabia Omer VI Even Ha'Ezer 1). This
is not the case with deliberately invalid marriages run by an O rabbi.

Josh Backon

From: Martin Stern <md.stern@...>
Date: Thu, 17 Jun 2004 17:11:29 +0100
Subject: Re: Deliberately Invalid Marriages

on 17/6/04 11:39 am, Eitan Fiorino <Fiorino@...> wrote:

> There is real issue here, however, in that in contrast to Rav Moshe's
> psak, there have been rulings from Israeli rabbaim that a man and woman
> who were never married but were living together in a way that was
> publicly known require a get when they break up - recognizing in effect
> a common-law marriage (I recall this being in Techumim some time back).
> Thus, even if the kiddushin were to have been intentionally invalidated,
> there remains the problem that at least according to some Israeli
> poskim, a get is needed anyway.  So the whole venture is levatalah
> anyhow.

The requirement of a get in such circumstances is only as a chumra. If
none is given the children born subsequently to the woman from some
other man are not treated as mamzerim and this is what the whole idea of
invalidating marriages is meant to avoid.

[From another Poster]

> A major thrust of Rav Price's discussion is the fact that extra-marital
> relations are forebidden and that there is a chazakah (general maxim)
> that "ein adam oseh beilato beilat zenut" (a person prefers that his
> relations should not be immoral).

Does this chazakah really apply nowadays except in very restricted
circles like strictly Orthodox Jews and most problems in this regard are
with other sectors of society?

on 17/6/04 11:39 am, David Charlap <shamino@...> wrote:

> I'm sure someone will correct me if I'm wrong, but it's my understanding
> that witnesses are not required for a marriage to take place.  Witnesses
> are required for their to be proof of the marriage that will stand up in
> court, should its validity be contested.

This is incorrect. The witnesses effect the marriage (eidei kiyum) and
are not merely witnesses attesting that it took place.

on 17/6/04 11:39 am, Michael <b1ethh94@...> wrote:

> The third method is clearly not advised (I believe even at the time of
> the Gemara), but, as you note, is still technically possible.  But as
> you say, the couple has to have the proper intention when having
> relations of this act being done specifically for kiddushin.

Kiddushei biah was banned by Rav because it required witnesses to the
act which was not proper. Nowadays it is very rare for a couple to ask
two kosher witnesses to watch them copulate so the possibility mentioned
is, though technically possible, extremely remote.

Martin Stern


From: Nathan Lamm <nelamm18@...>
Date: Thu, 17 Jun 2004 07:23:15 -0700 (PDT)
Subject: Re: Shidduch rules. 

Why is a cultural norm assumed to be positive, or ancient?

Nachum Lamm


End of Volume 43 Issue 13