Marriage I: The Concept of Kiddushin

The process of creating a Jewish marriage has two stages. The first is kiddushin, loosely translated as legally binding betrothal. The second, nissuin (marriage), is the subject of the third installment of this series.

Rambam outlines the development of this process at the outset of his Laws of Marriage:

Rambam refers to kiddushin as a kinyan, usually translated as acquisition, and as a Torah innovation. In contrast, he describes nissuin as predating the Torah.

This passage raises some fundamental questions about kiddushin: What is kiddushin, and what is it for? In what sense is it a kinyan? What is a woman’s role in all this?

We explore these questions here, leaving nissuin and the workings of the wedding ceremony for later installments of this series. To begin, we’ll take a step back to explore the broader concept of marriage.

In a sense, marriage dates back to Creation. God notes that Adam should not be alone, and ultimately creates a match for him. (See more here.) After Adam recognizes Chava as his own flesh and bone, the Torah informs us that their union sets the precedent for couples to come:

These verses describe, even prescribe, the formation of a strong bond between man and woman. By cleaving to each other, the couple are no longer lonely. They become “one flesh,” a suggestive phrase often taken to refer to one of three aspects of their bond:

I. A midrash connects the phrase to sexual relations:

II. Rashi views the couple’s progeny as the realization of their becoming “one.”

III. According to Ramban, “one flesh” refers to an emotional, even existential, unification of man and wife:

Although Ramban writes from a male perspective, the connection that he describes would presumably be reciprocal. After all, both members of the couple participate in joining to become “as one flesh.”

Aspirations for Marriage

Our tradition regards all three elements—the sexual, the procreative, and the emotional—as aspirations for marriage. For example, Tur opens Even Ha-ezer—the volume of his codification of Halacha dedicated to marital law—by describing the importance both of the marriage relationship per se, and of the framework it provides for bearing children:

Conversely, a midrash describes an attempt to completely separate the sexual and procreative aspects of marriage as a hallmark of the sinful antediluvian era.

According to this midrash, deliberately defining a woman’s role within a marriage as solely sexual or solely maternal has deleterious effects on her, likening her life station to that of either a widow or prostitute.

The Tosefta invokes these same factors in decrying sexual relations outside the framework of marriage. Intimacy without a formalized connection and commitment between the couple can become a form of licentiousness. Furthermore, promiscuity can lead to questions about parentage, with potentially incestuous consequences for their offspring:

This passage is quite even-handed in its condemnation of male and female promiscuity. In practice, the questions of parentage it raises are almost always about paternity, because the identity of a child’s mother is usually clear, whereas paternity can be murky or denied.

Rambam mentions concerns about establishing paternity, alongside the importance of emotional ties within a family, as a central rationale for the institution of Jewish marriage:

If promiscuity weakens the bonds of family and society by producing children of unknown paternity, then matrimony strengthens those bonds by ensuring that every child’s parentage is known, because a woman’s husband is readily identifiable. He is thus unquestionably subject to the responsibilities of paternity. Indeed, a man’s presumed status as the father of his wife’s children is given great halachic weight even in capital cases.¹ To ensure that clarity regarding paternity is maintained, a divorcee or widow must observe a mandatory waiting period from the end of her marriage before remarrying.²

This asymmetry between maternity and paternity may inform a fundamental asymmetry of marriage as described by Halacha and as reflected in kiddushin: According to Torah law, a man is permitted to marry multiple women, but a woman may marry only one man.³

Polygyny

The Torah mentions a man married to more than one woman in a discussion of inheritance:

The framing here is negative, with one wife loved and the other hated (a recurring motif in narrative sections of Tanach as well). This framing may subtly suggest that bigamy or polygamy, while permissible, is not encouraged. Nevertheless, according to the Talmud, a man is permitted to marry as many women as he can support.

Whether out of idealism, cultural norms, or financial constraints, monogamy seems to have been prevalent in many Jewish communities throughout history. In early medieval Ashkenaz, Rabbeinu Gershom made monogamy the law.

Maharam Padua suggests that this decree was intended to ensure that women would be supported by their husbands.⁴

In practice, it has become customary in many Sefardi communities to stipulate in the marriage contract that the husband is not permitted to marry a second wife. However, this does not have exactly the same force as Rabbeinu Gershom’s decree does for Ashkenazim.⁵

No Polyandry

As a matter of Torah law, it is impossible for a married woman to marry a second man:

This can be seen as a corollary of a Torah prohibition against relations between a married woman and a man other than her husband. Known as the prohibition of eishet ish (lit. the wife of a man), it appears multiple times in the Torah:

A married woman commits exclusively to her husband. She and other men are prohibited to each other.

Non-Jews—men and women—are also subject to the prohibition of eishet ish.⁶ But, as Rambam suggested, there is a key point of difference between Jews and non-Jews regarding the process of entering into marriage. The Talmud Yerushalmi explains that the prohibition takes effect for non-Jews only with marriage and relations, not with kiddushin (also known as eirusin). ⁷

Specifically for Jewish women, it is eirusin/kiddushin that initiates the status of eishet ish, and the concomitant serious halachic prohibition of other sexual partners. Indeed, the Torah teaches that if a man rapes a young woman who is completely single, he faces a civil penalty and must offer to marry her, without the option of initiating divorce. If, however, he rapes a woman who is me’oreset (betrothed), he is subject to the death penalty:

The stakes of kiddushin are thus far higher than for what we’d colloquially call ‘engagement.’ Kiddushin brings with it the status of eishet ish, which remains in place until death or halachic divorce.

As though to hint at the gravity of kiddushin, the Torah verse from which we learn about it is also the verse that introduces divorce:⁸

This has especially critical implications for the woman, who from kiddushin forward will need her husband to give her a get (halachic bill of divorce) in order to lift the prohibition of eishet ish and allow her to remarry. (We plan a more detailed discussion of divorce, and of steps that can be taken to help prevent halachic complications in pursuing it, in future pieces.)

Kiddushin thus forms a strong halachic bond between the couple before they set up a joint household and ongoing sexual relationship. The man is the ish with respect to whom the woman has the status of an eishet ish and, in this sense, she is already considered his wife:

Kiddushin has halachic implications, albeit less extreme, for the man as well. From the time of kiddushin, relations with any of the betrothed woman’s family members covered by the laws of arayot, prohibited sexual relationships, are forbidden under that set of laws:⁹

While kiddushin carries great halachic weight, in particular for the woman, it is only the first stage of a process meant to culminate in nissuin. Kiddushin thus entails a degree of halachic commitment, from both parties, to move on to nissuin, with its attendant obligations on each of them.¹⁰

Tosafot explain that, as of kiddushin, a man has already taken upon himself to fulfill the central obligations to his wife that will take effect from the time of nissuin: providing her with food, clothing, and marital relations.¹¹

According to some opinions, kiddushin is the first stage of a larger mitzva that is only completed through nissuin (sometimes called chuppa).

Accepted practice is now for kiddushin and nissuin to be conducted on the same day. (We discuss how these stages are conducted in practice in our pieces on the wedding ceremony, here and here.) We’ll return to the question of whether kiddushin is a mitzva in our next installment.

The binding nature of kiddushin is not merely a matter of prohibition. The term “kiddushin” is linguistically related to kedusha, sanctity. Our sages’ preference for this terminology speaks to the sacred nature of the commitment and bond that the couple form.

In our tradition, prohibitions often play a role in helping to distinguish the sacred from the mundane. The Talmud compares the prohibition of eshet ish engendered by kiddushin with the prohibition of taking personal benefit from something that has become hekdesh, sanctified to God:

Tosafot expand on the parallel to hekdesh, emphasizing kiddushin as an act of sanctification:

Sanctification here signifies a woman’s exclusive relationship with her husband.

Another Talmudic passage suggests that a woman attains a type of kedushat ha-guf, inherent sanctity, through kiddushin, and that that is why a get would be necessary to dissolve the relationship even at this stage.

Rabbanit Dr. Chana Friedman elaborates on the sacred aspect of kiddushin: ¹²

We’ve seen that kiddushin changes a woman’s halachic status, with implications for both her and her betrother, and entails a degree of sanctification as well. A formal halachic procedure, in the presence of witnesses,¹³ is necessary for all this to take effect.

This procedure is sometimes called a kinyan, a term that generally refers either to an actual acquisition, or to a symbolic transfer between parties that effects a halachic change in status. A mishna describes the most common method of enacting the kinyan of kiddushin, through a transfer of money or an object with clear monetary value, whose benefits the woman can enjoy upon receiving it. This is known as kiddushei kessef, kiddushin through money. Nowadays, this is effected with a ring (which we discuss here).

How would acquisition and monetary transfer apply to betrothal? To understand what this means, we’ll first look at the source for the use of money and at its function, and then turn to the matter of kinyan and kiddushin in general.

In a few places, the Talmud derives the possibility of effecting kiddushin with money by interpreting the verse regarding kiddushin, and its use of the verb “to take,” in light of another verse that employs the same verb. Efron takes Avraham’s money in order to transfer his field to Avraham,¹⁴ and this establishes that money can be used for kiddushin:

Ramban emphatically maintains that this derivation is meant only to establish the use of money for kiddushin, and not to compare a woman to a field:¹⁵

Now that we’ve seen how the use of money (or an object of monetary value) was established as effective for kiddushin, we can explore how it functions in kiddushin, starting with whether it is meant to reflect any aspect of a woman’s value. The mishna presents a telling debate between Beit Hillel and Beit Shammai about the minimum value of the money or object used to effect kiddushei kessef:

A peruta is the minimum monetary amount recognized by Halacha, and its value equals just above half a percent (1/192) of the value of a dinar. Beit Shammai’s position setting a dinar as the minimum may reflect a concern with using a trivial amount for kiddushin, lest a woman be unwilling to accept it, or lest it give the impression of devaluing the woman herself:

Still, Beit Hillel seems not to be worried about these issues.¹⁶ A comment by Rabbeinu Tam (in a related discussion) helps to explain why this would be the case. He argues that setting the minimum amount for kiddushin as equivalent to Halacha’s minimum monetary value simply reflects that Halacha requires use of something that it formally recognizes as money:

Taz puts this even more clearly, asserting that the money or object used in kiddushin does not in any way reflect a woman’s value:

Kinyan

We’ve seen that the kinyan of kiddushin is achieved through the transfer of an item of at least a minimum monetary value, but that the stipulated minimum amount does not reflect a woman’s value.

At the same time, halachic sources often describe kiddushin as a kinyan of the woman being betrothed. For example, Taz cited above states, “he makes a kinyan of her.” The first mishna of Kiddushin employs similar language and lists three potential methods of kinyan kiddushin. (The second and third methods—via contract¹⁷ or via relations—are not in practice today.¹⁸ The latter is actually rabbinically prohibited.¹⁹)

What does kinyan mean here?

Some halachic authorities do seem to take kinyan to mean acquisition, and consider the woman herself subject to a sort of acquisition through kiddushin. ²⁰ Others, like Rashba, state conclusively that kiddushin does not entail acquisition of a woman like an object:

Following the view that kiddushin does not entail acquisition of a woman’s person by the man betrothing her, we still need to explain what it means to say that a ‘woman undergoes a kinyan.’ One possibility is to focus on the primary halachic impact of kiddushin, namely, that the woman becomes prohibited sexually to other men. We can do that in one of two ways:

I. Halachic Shift Ramban formulates the kinyan of kiddushin as a “kinyan issur,” acquisition of a prohibition. Here, the kinyan is not of an object, but of a halachic shift specific to the couple. The man acquires a prohibition of the woman to others, and the kinyan is a formal halachic process for creating her shift in status to eishet ish:

This formulation of the kinyan involved in kiddushin is a bit abstract. It reads the language of “the woman undergoes a kinyan” as something like “the woman undergoes a kinyan of her being prohibited sexually to others as an eishet ish.”

Rabbinic Court Advocate Batsheva Sherman articulates a similar conception of kiddushin, highlighting the change in status:²¹

II. Conjugal Rights Alternatively, Rav Naftali Zvi Yehuda Berlin (Netziv) formulates kinyan kiddushin more concretely and positively, as the man’s acquisition of conjugal rights. (Earlier authorities, including Rambam,²² suggest something like this as well.)

Here, the mishna would be understood as “a woman undergoes a kinyan of the exclusive halachic rights to have relations with her.” However, as we’ll see at the end of this piece, completing kiddushin alone does not suffice to permit a man and woman to each other.

Following kiddushin and nissuin, a woman’s consent is still required for relations with her husband.

The monetary transfer

Especially if the monetary transfer is largely symbolic, it is not obvious which member of the couple should be the one to perform it. The Talmud considers the possibility of the woman giving the money or object to effect kiddushin, but derives from the verse “when a man takes a woman” that it is the man who must do it.

A similar logic seems to inform the Talmud’s discussion of the statement that accompanies kiddushin, usually phrased as “behold you are mekudeshet to me.”

Here, too, the Talmud considers but does not embrace the possibility of the woman making the statement. If the statement functions as a revelation of intent, it could make sense for either party to make it. However, this statement, like the giving of the ring, may be an essential part of the kiddushin process, with the man thus mandated to act:

A Talmudic passage explains the reasoning for this textual reading in psychological terms, based on the assumption that the man is the pursuer in a typical heterosexual relationship. A man’s more active role in kiddushin may reflect that pattern:

Rashi explains that the parable refers to the creation of Chava from Adam’s rib.

Indeed, the verb “to take” appears both in the verse concerning kiddushin and in the Torah’s account of the creation of Chava.

On this reading, man’s pursuit of woman begins at creation, and finds expression in his taking the more active role in the kiddushin procedure. But his action is not sufficient without a woman’s consent.

Consent

The use of the language of kinyan to describe betrothal remains quite jarring. It is tempered somewhat by the halacha – derived from that language – that a woman’s consent is necessary for kiddushin to take effect.

According to the Talmud, the mishna deliberately avoids using the active voice “the man effects a kinyan,” because that language could mislead us into thinking that only his action is necessary.

Precedent for requiring a woman’s consent to kiddushin appears in the Torah. The daughters of Tzelofchad were expressly permitted to marry whomever they wished, even though the preference was for them to marry within their father’s tribe.²³

There are different ways to understand what role a woman’s consent plays in kiddushin. Some authorities describe it formalistically, in terms of how she can make herself eligible to be affected by a kinyan process, either passively²⁴ or actively.²⁵

Meiri argues that the need for a woman’s consent to kiddushin should go without saying. It requires clarification only because the Torah assigns the primary action of kiddushin to the man, which might give a different impression.

To Meiri, it is clear that Jewish women over the generations simply would not have stood for forced marriage.

In one of his comments, however, Rashi infers the requirement of a woman’s consent from a verse in the Torah, specifically, from the way it describes remarriage after “a man takes a woman”:

The independent derivation of the need for a woman’s consent to kiddushin suggests that this requirement is not something to take for granted, nor is it simply the standard consent required for any kinyan. Rather, consent may be a critical element specific to kiddushin, specific to it. In that case, though a man’s role is more active, the respective roles of man and woman would each be considered essential to kiddushin.

Hoshea, comparing the relationship of the Jewish people and God to kiddushin, presents some of the values to which a couple undertaking kiddushin can aspire, seemingly very much dependent on the depth of a couple’s relationship:

Kiddushin is Jews’ unique way of establishing a sacred and halachically binding commitment between a couple, before they enter the covenantal marriage of nissuin.

The Limits of Kiddushin

Kiddushin is only the first stage in the creation of a Jewish marriage. With kiddushin, a woman attains the halachic status of eishet ish. But kiddushin alone do not suffice to permit a man and woman to each other.

Beracha here might refer to chuppa more generally. Rashi interprets this passage as meaning that a couple need both chuppa and berachot to be permitted even to be secluded together:

Though Rashi calls this halacha a rabbinic decree, some early authorities even compare it to the prohibition of eishet ish:

Even had they done kiddushin via relations, the couple would not be permitted to each other again prior to nissuin.²⁹ We discuss how this halacha is expressed in birkat eirusin, as well as the question of whether kiddushin is a mitzva, in the next installment of this series.