Hebrew and American Marriage Divorce Laws
There are many differences between Hebrew and American marriage and divorce laws. Hebrew law dates back approximately three thousand years when God gave Moses the Ten Commandments. Hebrew law relies heavily on scripture and cultural traditions. The Torah, known as the 5 Books of Moses, contains the biblical laws of Judaism. The Talmud is a collection of rabbinic law published by Rabbi Judah the Patriarch around 200 CE. Hebrew laws derive from these writings. On the other hand, the US Constitution was not ratified until 1787. Requiring separation of church and state, religion has no bearing on any American law. According to the Talmud, marriage is obligatory. Refraining from it is considered unnatural and unholy because the family unit is considered the ‘nucleus of life’. Rabbinical courts could compel men to marry. An unmarried man is considered only half a body. Referencing Eve being formed from Adam’s rib, man and woman form one body. However, women were exempt from duty to marry. The Talmud recommends a minimum age for marriage to be thirteen for boys and twelve for girls. Boys should marry by eighteen years old, but no later than twenty-four years old. The marriage process began when a father chose an acceptable spouse for his son or daughter. The next step was the betrothal. Although it wasn’t necessary, it was rare for a father to force his daughter to marry without her consent. The betrothal ceremony included a celebration feast with both sides of the family and close friends. The groom presented himself with gifts for the bride and her family. Also at that time, the terms of the Ketuba (marriage contract) were determined. It included: the dowry price, a list of mutual gifts and values, terms of succession in case of divorce or death of a childless husband, consequences for husband if he forced her to leave, promise of faithfulness, and a promise from husband to pay specific sum of money for breach of contract.
Then the document was signed by the bride and groom, and witnessed by two adult males to establish legality. The festivities ended with a benediction from the bride’s father that the couple would be blessed with many children. The woman was then considered married. However, no premarital sex is allowed. The actual wedding ceremony took place at a later date; sometimes almost a year after the betrothal. The daughter stayed in her father’s house until that time. There was another feast that lasted seven days. The bride was taken to the groom’s house in the presence of ten adult males. She had to be examined to ensure that she was a virgin before consummation of the marriage would happen. He was now responsible for feeding her, providing her with clothing and protection, having sexual relations with her, and taking care of her burial if she should die before him. The couple was given a honeymoon period, in that the groom was exempt from military or civil service for the first year of the marriage. The Ketubah was designed to protect women. The document could be amended if both parties agree. The Ketubah probably dates back to the time of Solomon. Before then, an oral contract took the place of it. The Talmud states that a husband may use and manage his wife’s premarital assets, but he does not own them. She keeps them if they divorce. There is no need to stipulate this in the Ketubah. In Israel today, the Ketubah is binding under civil law, as well as religious law; elsewhere only under religious law. Civil documents are required. The laws of marriage and divorce recognized the validity of polygamy even though God’s original intent for Adam and Eve was monogamy. Polygamy was accepted as a compromise. In Ancient times, there was no limit to the number of wives a man could have. Concubines were very common then. They were household attendants, not married to their masters, who submitted to them. Their children were considered legitimate, however, the wives’ children were favored more. The concubine was considered to be a position higher than a slave. She had to be monogamous until her master died. A barren wife might have adopted the children of a concubine who would have to give up all maternal rights and privileges. The Sarah and Hagar story is a perfect example of that. The Talmud and Rabbinic laws banned polygamy in the 10t h Century. Although marriage is considered obligatory, and there are traditions to be followed, it is not considered a sacrament. There is no need for priestly or rabbinical sanction, but it is considered a divine act. The custom of having a rabbi conduct the ceremony began around the late Middle Ages. There are forbidden marriages. A man is not allowed to marry his: mother, stepmother, mother in-law, daughter, stepdaughter, daughter in-law, or sister in-law. A woman is not allowed to marry her: son, stepson, son in-law, father, stepfather, father in-law, or brother in-law. The Torah prohibits intermarriage going back to Ezra and Nehemiah because others are considered unholy. Israel has been consecrated by God, making His people holy. Breaking this law is pentateuchally prohibited and considered a capital crime. Rabbinical law reversed this tenet even though they consider themselves Ezra’s successors by allowing conversion to Judaism. Marrying a non-Jew without conversion is not recognized and would only be considered a civil marriage. In this case, the children would only be Jewish if the mother was Jewish.
Even though it is allowed, divorce is seen as a personal tragedy. No-fault divorce has been recognized for thousands of years as an accepted fact of life. The school of thought is that it is better to divorce than remain married in a state of constant bitterness and strife. According to the Talmud, only a man can initiate divorce, for any reason, and without the wife’s permission. Rabbinical authorities have eased the rules by reversing that rule. In some cases, rabbinical law permits women to initiate the divorce. When the Pharisees asked Jesus if it was lawful for a man to divorce his wife, Jesus told them that Moses allowed a man to write a certificate of dismissal to divorce her because of man’s hardness of heart. The certificate is today called a get. The husband can give it to his wife himself or have a messenger deliver it. The get does not state the reason for the divorce or mention the breakdown of the relationship. It does state that she is free to marry another man. A correctly prepared get changes the status of the woman in Heaven; without it she cannot be sanctified to another man and would be liable for death. Compulsory divorce is required in some circumstances. Some examples of this would be a wife that commited adultery, a man was impotent, an illness was a great burden on one of the spouses, or if the husband forced his wife to do something she was not obligated to do. There were laws that pertained to widows. Whether she had or did not have children determined what her future held. In the case of a childless widow, the wife would either return to her father’s house or marry her single brother in-law for the purpose of producing an heir for her deceased husband. A widow who has children, would find her husband’s estate passed on to the children. They in turn would be compelled to take care of her. After the establishment of the state of Israel in 1948, marriage and divorce laws were under the authority of the Orthodox Chief Rabb1nate. Divorce cases being litigated in both rabbinical and civil courts at the same time is considered to be halakhically problematic, because there are stark differences between the two legal systems.
There is conflict between civil and rabbinical courts in modem day Israel. Each one is trying to gam power. In contrast to Hebrew law, religion has no authority over American marriage or divorce laws. In fact, the United States Constitution does not regulate marriage or divorce laws. The individual states are responsible for that. There are two cases in which the Supreme Court intervened. The first was in 1967 when the court overturned a Virginia statute that prohibited marriage between different races. The high court ruled that the Virginia law violated the equal-protection clause of the Fourteenth Amendment to the U.S. Constitution. The ruling ended racial segregation in marriage throughout the country. The second time the high court intervened was in 2013 when they ruled that gay marriage was legal in all fifty states. A US citizen can marry a non-citizen. He/she must apply for a fiance visa which gives permission to enter the country for the purposed of getting married. It takes several months to get approval. Once the marriage takes place, the non-citizen can apply for green card that gives permanent residency. After three years, the green card holder can apply for citizenship (as long as the couple is still married and living together). All fifty states require a marriage license. The waiting period to get a license is: one day in four states; two days in two states; three days in fifteen states; four days in one state; and five days in three states. The duration of the license is: twenty days in one state; thirty days in fourteen states; sixty days in ten days; sixty-five days in one state; ninety days in five states; six months in four states; and one year in three states. Montana requires blood test for rubella in women under age fifty. Five states allow a proxy to stand in for military personnel. All states allow marriage between second cousins. Twenty states allow marriage between first cousins. Officiants can be religious officials, judges, or government officials (county clerks or mayors). One or two witnesses are required to sign the marriage license. Eight states recognize common law marriage. Medical exams are required in eight states. There are eight community property states. Polygamy is illegal in all fifty states. Age of consent laws vary greatly. With parental consent the age is sixteen in thirty-six state; seventeen in four states; fifteen in two states; fourteen for boys in Massachusetts and New Hampshire; thirteen for girls in New Hampshire; and twelve for girls in Massachusetts. Without parent consent the age is eighteen in all states except Mississippi (seventeen for boys, fifteen for girls) and Nebraska (nineteen for boys and girls). Some states have weird marriage laws. In Kentucky, it is illegal to remarry the same man four times. In Truro, Massachusetts a groom must “prove himself manly” by hunting and killing six blackbirds or three crows. In South Carolina it is a misdemeanor for a man over sixteen years old to propose and not mean it. In New Orleans it is illegal for palm readers, fortunetellers or mystics to officiate for a wedding. Just like marriage laws, divorce laws also vary among the states. Each state creates its own laws, codes statutes and rules. There is no uniformity.
The legal term for divorce is marriage dissolution. Some of the grounds for filing can be cruelty, desertion, adultery, neglect, alcohol/substance addiction, insanity, criminal conviction, or irreconcilable differences (no fault). By 1980, nearly every state legislature had enacted laws allowing no-fault divorces. Either party can file whether it is contested or uncontested. The legal process must go through the courts. If one party is asking for alimony or child support, the two parties can come to an agreement on their own or let the judge in the case decide. Factors for support include: fault, ability to pay, age, physical, emotional and financial condition, earning capacity, educational level, vocational skills, time needing support, custodial responsibilities, standard of living, financial and non-financial contribution to the marriage, and length of marriage. This can be a long complicated process. Each party should have their own legal representative who will ensure a fair outcome for his/her client. In the end there will be a final judicial decree of dissolution of the marriage. American marriage and divorce laws vary from state to state, unlike Hebrew law that is uniform for all Jews. It will be interesting to see how the conflict between civil and rabbinical courts in Israel is settled. As the State becomes more secular, religious laws may become inconsequential. Then American and Jewish laws would be quite similar.
- Steinsaltz, Adin. The Essential Talmud. New York: Basic Books Inc, 1976. Print
- Fonrobert, Charlotte Elishers. The Talmud and Rabbinic Literature. New York: Cambridge University Press. 2007. Print. Neusner, Jacob. The Talmud: What Is It and What It Says. Lanham: Rowman & Littlefield Publishers, Inc. 2006. Print.
- Neufield, Ephraim. Ancient Hebrew Marriage Laws, with Special References to General Semitic Laws and Customs. London: Longmars, Green and Co. 1944. Print.
- Hayes, Charlotte. Judaism and Law. New York: Cambridge University Press. 2017. Print.
- Schiffman, Lawrence H: Jewish Marriage and Family in the Ancient World. My Jewish Leaming. Web. www.myjewishleaming.com/article/jewish-marriage-and-family-in-the-ancient world
- Schauss, Hayyim: Ancient Jewish Marriage. My Jewish Leaming. Web. www.myjewishlearning.com/article/ancient-jewish-marriage
- Judaism 101. Web. www.jewfaq.org MJL: The Ketubah, or Jewish Marriage Contract. My Jewish Leaming. Web. www.myjewishlearning.com/article/the-ketubah-or-marriage-contract/
- Legal Information Institute. Marriage Laws. Web. www.law.cornell.edu/wex/table marriage USLegal. Marriage Laws By State. Web. www.uslegal.com/state-marriage-laws/
- Legal Information Institute. Marriage Laws Table. Web. www.law.cornell.edu/wex/table marriage