Couples seeking marriage should create private contracts.
By HAVIVA NER-DAVID
Wedding season is soon upon us. As we count the days from Pessah to Shavuot, from the day the Jews left Egypt to the day we received the Torah at Mount Sinai, we prepare for the archetypal wedding when the covenant between God and the Jewish people was consummated. The traditional covenanted relationship, however, is not a relationship between two equals. There is a power hierarchy at work in our relationship with God, at least as this relationship has been presented in mainstream Jewish texts. God chooses the Jewish people and offers them a gift – the Torah – to cement this relationship. We did accept it, but did we really have a choice?A well-known midrash (BT Shabbat 88a) depicts Mount Sinai as a wedding canopy of sorts hanging over the people’s heads. If we did not accept God’s gift, the mountain would fall on us and that would be our grave. As in any power relationship, the partner with less power is always on some level at the whim of the partner with more power.It is no accident that Jewish tradition depicts the Sinai scene as a wedding. A traditional Jewish wedding is far from a bilateral agreement between equals. The groom acquires the bride with his gift – the ring – and in doing so acquires exclusive access to her sexuality. Upon the acceptance of this gift, she is forbidden (punishable by death) sexual relations with any other man. He, however, can take more than one wife. Moreover, because he is the one who acquired her, he is the only one in the relationship who can effect a divorce. He must be the one to write and offer the writ of divorce; she cannot. Therefore, she is his prisoner in the relationship should she desire to end it but he not agree. That is the traditional Jewish model of marriage.This model was improved from a feminist point of view as time passed. Thanks to Rabbeinu Gershom in 1040 CE, it became forbidden (at least in Ashkenaz) for a man to take more than one wife and for a man to divorce his wife without her consent, which meant that ideally a marriage could only end if the woman agreed, even if she could not initiate the divorce herself. Moreover, a man would be discouraged from keeping his wife captive, because he too could not remarry until he set her free.The only problem is that because these innovations are rabbinic, they do not hold the weight of Torah law. Therefore, in cases where 100 rabbis agree that the man is justified, he is permitted to remarry. So much for a marriage of equals. As long as the playing field is not level, the man still wields power over his wife, a fact the Israeli rabbinic courts take full advantage of by encouraging men to either refuse to give their wives a get or blackmail them into giving up the house, custody of the children or even pay off their husbands, in exchange for the get.Why do these rabbinic judges do this? They claim they do so in the name of shalom bayit, domestic peace. But what kind of domestic peace is achieved by forcing a woman to stay married to a man who would wield his power over her in this way? Often these men are also physically abusing their wives. But even those who aren’t are certainly emotionally abusing them by imprisoning them.These rabbinic judges encourage men to wield their power over their wives because they want to preserve this unequal power relationship. They believe in it like they believe in Torah from Sinai. In fact, they think it is Torah from Sinai. They believe that God wants women to be subservient to their husbands, and anyone who tries to topple this hierarchy is trying to break the covenant between God and the Jewish people. Patriarchy, in their eyes, will not only ensure the transmission of Torah but it is Torah.THAT IS why, when I – in my rabbinic role as founding director of Re’ut: The Center for Modern Jewish Marriage – counsel couples in the marriage and wedding preparation seminars and retreats I run for engaged couples (for information see www.reutcenter.org), I encourage them not to put themselves into the hands of these misogynist rabbinic judges. Because all marriage and divorce in the State of Israel must be religious in nature, and because the State of Israel recognizes only Orthodoxy as “religious,” only rabbinate-sanctioned weddings are legally sanctioned.Therefore, if a couple does not marry through the rabbinate, their marriage is not recognized by the state, unless they marry in a civil ceremony in another country and then register as married. That is why couples who want a religious (or secular) ceremony not in compliance with the requirements of the rabbinate but want to be recognized as legally married go to places like Cyprus to marry (with or without another ceremony here).I, however, recommend to couples that they marry in the ceremony of their choice and not register as married with the state. Most couples do not realize that even if they do not marry through the rabbinate, once they are registered as married, the only way they can divorce is through the rabbinic courts. That is why I suggest that they refrain from registering as married and thus avoid putting themselves into (and thus legitimating) the system altogether.
With the help of a lawyer with an expertise in marriage and divorce, they can draw up a contract that will act as a civil marriage contract, albeit without the official “married” status. If the couple should divorce in the future, they can cancel that contract and draw up a new one that deals with property and custody issues. In fact, although I respect the wishes of the couple, I let couples know that my ideological preference is a ceremony without kinyan (the act that effects the acquisition of wife by husband).Such a ceremony can look and feel like a traditional Jewish wedding –huppa and all. But rather than the wedding canopysymbolizing the man bringing the woman into his home or, worse yet, theman forcing the woman into an unequal power relationship (rememberMount Sinai hanging over our heads), it can take on new meanings, suchas the couple joining into a partnership of equals (each offering theother the gift of a ring) and building a home together.The writer is the founding director of Reut: The Center forModern Jewish Marriage and Shmaya: A Ritual and Educational Mikve atKibbutz Hanaton. She is the author of Life on the Fringes: AFeminist Journey Towards Traditional Rabbinic Ordination