Tradition and Equality in Jewish Marriage by Melanie Malka Landau

Author:Melanie Malka Landau [Landau, Melanie Malka]
Language: eng
Format: epub
ISBN: 9781472548764
Google: 778PkAEACAAJ
Publisher: Continuum International Publishing Group
Published: 2011-01-15T05:33:17+00:00

Chapter 5

Derekh Kiddushin (Quasi-Marriage)

The previous chapter examined the possibilities of reducing the potential negative effects of acquisitional marriage through inserting a condition into the marriage. This chapter will explore the possibilities of bypassing the acquisition through the establishment of relationships, which while referenced within halakhic literature, are usually not halakhically recognized as marriage. The discussion of these alternatives – namely concubinage and derekh kiddushin1 (quasi-marriage) – will be framed in this chapter in the context of both medieval and contemporary literature and practice.2

Most scholarly discussions about the boundaries of traditional Jewish marriage feature some reference to the institution of concubinage. Although the sources contain a wide range of legal opinions, concubinage serves as a model of partnership that is not marriage. It thereby acts as a litmus test for the way that scholars have related to sexual relationships outside of the acquisitional marriage paradigm. Responses to concubinage produce important discussions about the definitional boundaries of licentiousness and its implications as well as other more general concerns about the erosion of stability emerging as a result of less regulated exit from relationships.3

A recent Hebrew article by Zvi Zohar addressing the issue of concubinage is Zugiyut al pi halakha le-lo huppah ve-kiddushin (Partnership according to Jewish law without huppah and kiddushin) gives a detailed study of the institution of concubinage. He examines the sources on concubinage as a post-facto justification of pre-marital sexual relationships that are currently a fact of life for many Orthodox Jews.4 Zohar also sheds light on the widespread rabbinic unwillingness to find a sanction for pre-marital sexuality. Concubinage is used as a model to show that sex outside of marriage in a monogamous committed context has precedence as an acceptable halakhic category under certain circumstances.

As well as the religiously problematic policy issue of legitimating pre-marital sex, and the halakhic ‘risk’ of women engaging in relations prior to immersion in a ritual bath (therefore still in state of menstruation), scholars find fault with the model of pilagshut (concubinage) as an alternative to marriage because it is seen as a devaluation and de-sanctification of the Jewish family. As suggested this may be partly because concubinage does not provide the protection for the woman inherent in the ketubah (marriage contract) and thus it may be too easy for partners to leave the relationship. Having halakhically justifiable alternatives to marriage readily available has been understood by some scholars as further exacerbating worrying increases in the marriage age of Orthodox couples.5 If people are not getting married then the important mitzvah (commandment) and cultural concern for having children cannot be fulfilled within the religious purview.

Although concubinage may be suggested as a way to overcome the problem of recalcitrant husbands, with the assumption that the Jewish divorce would not be needed, there is a chance that if the couple intended to have a long-term relationship then perhaps a Jewish divorce would still be required, as a stricture, at least on a rabbinic level if not a biblical one.6 The issue of which relationship requires a Jewish divorce is a subject of some controversy and debate.

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