The Nuptials: Acquisition Becomes Union

Once the couple has made a firm, formal commitment to a lasting bond, they are prepared for the concluding stage of the marriage service, nissuin, and the beginning of their life together as man and wife.

The nuptial ceremony is quite simple: the couple stands under the chuppah, the officiant recites the seven marriage blessings, and the bride and groom retire to the privacy of a room for some eight or nine minutes (yichud). Two witnesses stand outside the door to testify that the couple have symbolically accomplished the chuppah.

The differences between kiddushin and nissuin reveal the essence and spirit of the Jewish marriage service. While kiddushin evokes the image of the field, reflecting acquisition, the scene of nissuin is the home. chuppah symbolizes shelter, the privacy of a home which bride and groom enter. The field is a place for business—real estate investment, sowing, and harvesting. The home is a place for children, parents, mate, and friends, for love and celebration. Traditionally, the dominant person of the field is the man—Isaac goes out to commune with G-d in the fields (Genesis 24:63), Esau is called "man of the fields" (Gen. 25:27), and Jacob’s sons plot against Joseph in the field (37:15ff.). Woman traditionally has been the central figure at home. The Sages said beito zu ishto—a man’s house is his wife.

The basic transaction of kiddushin is contractual, and has associations of the larger world—commerce, legalities, and economic arrangements. It must have precise legal formulations of words, precise minimum and maximum values given and received. Betrothal deals with a marriage formula, the value of the ring, the validity of the contract. The whole process is called kichah (acquisition)—a business term: unadorned, but transparently clear. In contrast, the transformation of nissuin is accomplished in a private room. No negotiations over conditions are associated with chuppah, only testimony to the couple’s togetherness. The term for this is lovely, warm, and personal—yichud, together in private, an end to the solitary life and the beginning of family, shared promises, and the whisper of long commitments.

The kiddushin is in the nature of hakhanah, a preparation for the final mitzvah of "be fruitful and multiply." That is why one is permitted to effect this contractual stage of betrothal via messenger, performed, of course, with all of the technicalities required for establishing agency. The nissuin, the object of which transaction is personal and intimate, obviously cannot be effected by agency even if the sexual consummation of marriage were to be delayed until they meet, as no mitzvah requiring personal participation (such as the donning of tefillin) can be legally accomplished through messenger.

Kiddushin is the first stage of the two-stage change of personal status. It prohibits the woman to her fiancé and to all other men, and it prohibits, by rabbinic decree, the man to all other women. The woman now has the status of eshet ish, a married woman, but thus far it is only negative in import. The blessing at the kiddushin speaks strictly of prohibited and permitted categories and of caution against immoral relations.

The second stage, nissuin, positively permits—indeed commands—sexual intercourse between bride and groom. The blessings speak of rejoicing, of G-d and paradise, and the idyllic first marriage of Adam and Eve.

The kiddushin celebrates a new legal bond in the community; the nissuin celebrates a personal tie. Betrothal is a civil procedure endowed with a special sanctity by the Rabbis; the nuptials are essentially a religious ceremony. Together they provide religious sanction for a previously prohibited act. The nuptials do not include proposals or gifts, only feelings.

The betrothal is called kiddushin (sanctity) because its primary purpose is to set aside. The nuptials are called nissuin, a term derived from the word nassa (to carry), which recalls the days when the townspeople carried the bride on a carriage from her parents’ home to her new home with the groom. Kiddushin connects two equals, man and woman, in a relationship as husband and wife. nissuin, which also means elevation, connects husband, wife, and G-d in a permanent commitment.

Marriage Is Covenant

"Holy matrimony" is a common phrase. But what is "holy" about matrimony? Outside of Judaism there are conflicting concepts of marriage: One holds that marriage is a sacrament; the other, that it is simply a social contract involving civil law.

Those who believe in its sacramental nature assert that the union of man and woman is essentially sinful, but in a concession to the weakness of the flesh, it was redeemed by the grace of G-d and transformed into a divine institution, holy matrimony. What G-d put together, man is not permitted to tear asunder, even if the marriage was a disaster and the home a prison. Only a moral offense such as adultery may be grounds for divorce; otherwise the marriage is dissoluble only by death.

Judaism holds that the holiness of marriage is the relationship, not the contract. Marriage can be ended by mutual consent; the reason need not be supplied. This indicates that marriage is arranged by man, and if it doesn’t work, it can be terminated without religious penalty. The makers of the contract can become the breakers of the contract. The question was asked of Maharshal in the sixteenth century, "May the husband be coerced to grant a divorce on the ground that he is treating religion with scorn?" The rabbi answered, "He cannot be forced to divorce. Even if the charge were true, or even were he converted to another religion, if he still cared for his wife as the law required of a Jewish husband, she could not compel him to divorce. But she can also not be compelled to live with him..." (Maharshal was concerned in this instance with a trumped-up charge; no halakhic decisions of this serious nature should be assumed from this material.)

Because of the fundamentally social nature of the marriage contract, we can understand the category of prohibited and valid. Even in violation of religious laws (excluding adultery and incest), a marriage contracted is a valid marriage.

The secular view proposes that it is sufficient for marriage that two people want to have each other and are willing to live together. It requires nothing from religion, neither sanctification nor sanction.

Judaism cannot hold this view because it would ultimately destroy the moral life of the entire community. Adultery is not simply a social crime, such that if the offended mate forgives, it is forgotten. It is a sin against G-d and it stands to destroy the family. Incest is a heinous moral crime; producing a mamzer, or marrying one, matters very much to the Jewish people. Jewish survival and integrity depend on such concerns. That is why two people who, in certain situations, must prove that they are married but have no witnesses, will not be believed simply on their word. Because their marriage is not merely a personal arrangement, but affects all their close relatives, it cannot be legally determined by their simple statement of admission.

The Jewish concept of marriage can be summarized as follows: The form, the contract and the process are contractual. The content, the bond, and the resulting relationship are covenantal. The covenant is the purpose and essence of all Jewish marriage. Malachi (2:14) speaks of "the wife of my covenant," and Ezekiel (16:8) says, "Yea, I swore unto thee and entered into a covenant with thee."

The contract is an agreement to abide by certain rules, but a covenant has a metaphysical dimension. By contract we share duties; by covenant we share destinies. The story of Creation, as told in the first chapter of Genesis describes how man and woman help relieve each other’s burdens. In the second chapter, a spiritual element is added to their lives. They enter a covenant with G-d—and are enabled to relieve each other’s existential loneliness in the world.

The paradigm of man’s marriage covenant with woman is the be’rit, the covenant of G-d and His people, Israel. The covenant transforms Israel’s historic destiny into G-d’s destiny as well. When Israel is in exile the She’khinah, G-d’s Presence, is also in exile. In His covenant with the Jews, G-d promises land and eternal posterity. The marriage covenant also promises posterity, along with home, growth, love, and companionship. Thus the blessing ends with G-d’s sanctification of Israel through this couple: me’kadesh ammo Yisrael al ye’dei chuppah ve’kiddushin. Because marriage is covenantal, both components, kiddushin and nissuin, are initiated with the blessing over wine, as are the covenants of the Sabbath and circumcision.

The form is contractual, but the resultant relationship is covenantal. According to Maimonides’ three-tiered classification, the relationship grows from chaver 1e’davar, a companion for help, to a chaver le’daagah, a companion for burdens. It is capped by chaver le’deiah, a companion for destiny. This signifies a sharing in the covenant, in the whole meaning of life, in those ideals which stand forever.

The Minimum Legal Requirements Consent

Consent is the fundamental requirement of the wedding. There is no valid marriage without the total willing consent of the bride. In commercial transactions, a person may be compelled to agree to a contract even though the contract is unsatisfactory. Nonetheless, the sale is valid. Since marriage involves a formal contract, it might be assumed that it is bound by the same law of consent. The Sages, however, ruled otherwise. They held that if the groom would stoop to do something so uncomely as to "pressure" the lady to agree to marriage, the marriage should be annulled. Since the groom proposed marriage according to "the laws of Moses and Israel" (meaning the laws as the Sages had developed them), the Sages could determine whether it was performed according to their view of what constitutes proper marriage. If the bride later claimed that she felt forced to accept that which she did not desire, she would be free without divorce. The Sages were much more concerned with guaranteeing the woman’s willing consent (daat) than the man’s, because of man’s traditionally greater independence. Consent, as indicated in Chapter 9, was not simply a condition of the agreement, it was central to it.

The consent required of man and woman is expressed in different ways. The man recites the betrothal formula upon presenting the ring, and the woman silently accepts the ring. Both acts imply consent.

Legal Capacity

It is a law of Torah that both partners must be mentally competent and sufficiently mature to understand the significance of the marriage act and the change of personal status that it effects. Three categories of the legally incapacitated are enumerated: cheresh (the deaf-mute, or retarded person), shoteh (the deranged), and katan (the minor).

The Retarded and Deaf-Mute (Cheresh and Chareshet)

This category refers to deaf-mutes or to those who are mentally retarded. (The ancient law usually considered deaf-mutes to be of arrested intelligence, which is why they are grouped here with the retarded. Deaf-mutes of normal intelligence are simply considered adults and are not included here.) They are considered generally unmarriageable by the Bible, but the Rabbis ruled that, if their capacity for peaceful domestic relations indicated the possibility for successful marriage, they were permitted to marry. Thus a retarded person or a deaf-mute married to a normal mate has contracted a valid marriage, and if the marriage fails, divorce is required to terminate it. If the groom’s sounds would not be comprehensible to the bride and witnesses, the marriage formula should be done in sign language. A rabbi should be consulted on this matter.

The Deranged (Shoteh and Shotah)

Those judged to be deranged are not permitted to marry either others in this category or those who are manifestly "normal." It is felt that they lack the required awareness for marriage and will only cause harm, disruption, and lifelong suffering to themselves and their families. The Bible prohibits such a marriage, and the Rabbis did not enact laws enabling them to marry, as they did with the retarded, who can have an appreciation of domestic peace. If a person is adjudged by competent professionals to be merely of lesser wit, but with full self-awareness, that person is not considered incompetent to marry.

A Minor Male (Katan)

The Bible did not permit a boy under the age of thirteen years and one day to be married (Deuteronomy 24:1), and the Rabbis did not relieve this stricture. Some rabbis conjectured that since the estate of marriage is one of bliss, we should invoke the principle of zachin le’adam shelo be’fanav—that one can do meritorious acts on behalf of another, even if he is not present. In that case, the court or the boy’s father should be permitted to "marry him off" without his formal acquiescence. The final law denied this arrangement, however, since the husband has serious obligations laid upon him by the Bible. The court surely cannot accept these obligations for him without his full, mature willing agreement.

A Minor Female (Ke’tanah)

Historically, an under-aged girl found herself in difficult circumstances. She was frequently in danger of abduction by an enemy people if she was unmarried, and if her family was poor she was considered a drain on the family expenses. Girls therefore were brought into marriage at a very early age. (Even today Yemenite Jews emigrating to the modern state of Israel bring daughters married at age ten). For these and other reasons, the law permitted this marriage with the permission of her father, although the Talmud considered it a mitzvah not to marry her until she is prepared to say le’ploni ani rotzah, "him I want." Maharam Rotenburg, in a famous Responsum, advises the Jewish community to follow the rule of the Talmud, as he himself had done with his minor daughter.

In 1950 the Israeli rabbinate passed a law that made it illegal to marry a girl under the age of sixteen.

Witnesses (Edim)

A marriage must be witnessed by two qualified people in order to be considered valid. A hundred legally unqualified witnesses do not validate a marriage, according to Jewish law, even with the self-admission of the bride and groom that they are married. Where only one witness is present, the law is complicated and rabbinic authority will have to be consulted.

The Need for Witnesses

While the requirement for the presence of witnesses for marriage is derived from commercial transactions, their function in marriage is very different. In fiscal matters, the witnesses testify; in marriage, they attest. Attesting witnesses on a document are part of the event that transpired, an integral component. Without them, the event is not legally considered to have occurred. Testifying witnesses stand as evidence, if called upon, that a transaction was agreed upon.

Thus in commercial transactions, if both sides agree—even though there were no other witnesses—the integrity of the event is not called into question. In marriage, the lack of witnesses constitutes an invalidation of the essential contract. The witnesses recorded on the marriage contract are the actual authors of the ketubah and they virtually become the central functionaries. If there were no witnesses, the testimony of the bride and groom that a marriage took place is not valid because, according to the Talmud; "In the case of money matters, his admission does not involve others; in the case of marriage, self-admission would involve others." How would it involve others? Rashi says that "each party would now be prohibited to marry each other’s consanguineous relations."

The author of Ke’tzot ha-Choshen explains that the witnesses to a commercial transaction may never be needed because the law is content with the admission of the parties to the act and that is equivalent to the testimony of witnesses. The law, however, will pay no attention to the admission of the parties to the marriage; thus the witnesses need to stand always as an essential part of the act.

Another purpose is cited by the author of Or Same-ach. He holds that unlike commercial transactions, which requires only haskamah (grudging consent), marriage requires daat (willing consent). The witnesses are required to judge this sensitively. Their presence for this purpose will help avert the possibility of a future denial of the validity of the marriage.

A third purpose cited by the Tosafists is that since a new status is effected wherein the woman becomes davar she-be’ervah (an incestuously-prohibited relation), it calls into being the law that no such davar she-be’ervah can be accomplished with fewer than two qualified witnesses. It cannot be effected by self-admission, as in commercial acts, or by one witness, as in purely ritual, non-marital matters.

Their Place in the Service

In order for witnesses to fulfill their function as integral components of the marriage ceremony, they must be seen by the couple during the service. Further, the couple should be conscious of the fact that the witnesses are serving in that capacity. If they are not specifically aware of the witnesses, it is feared that bride or groom might consider it a casual custom, not a required need. Because the witnesses validate the ceremony, the law requires that the two witnesses must appear together, must see each other, and must be seen by—and their presence as witnesses recognized by—the couple.

It is proper that they be specifically appointed for this purpose. This should be done ideally by the groom, but the rabbi can also choose witnesses. Preferably, selection should be made by speaking their names and announcing that they are selected to the exclusion of everyone else in the room. There are several reasons for this specification. First, most people surrounding the couple under the chuppah are relatives, who are not permitted to serve as witnesses. According to many authorities, the inclusion of even one improper witness disqualifies all witnesses. Hence the groom or the officiant consciously excludes them. Second, those closest to the action are usually those responsible for the entire wedding. They may be so concerned with other matters at the celebration that they cannot give proper attention to their function as biblically-required attesting witnesses. Third, those who are not related (and therefore potentially able to serve as witnesses) will probably be standing outside the close huddle under the chuppah, which will obstruct the action that must be clearly seen. Their specification as witnesses brings them to the center, concentrates their attention on the marriage about to be effected, and consciously eliminates relatives and other invalid witnesses from inclusion in the formal aspects of the ceremony. It is generally preferable to have the rabbi and cantor, who are standing close by, act as witnesses. This also helps to avoid the interminable arguments over which friends should be honored to serve as witnesses.

Their Function

The witnesses must clearly see the groom give the ring to the bride, and they must distinctly hear the groom’s recitation of the marriage formula. Most difficult—but most important—they must be able to discern, by the actions of the bride and by her looks, that she willingly consents to the marriage and that the groom intends not merely a gift but the functional enactment of marriage.

Their Qualifications

Witnesses must be practicing adult, male Jews who are not relatives of the bride or groom. The following persons are considered invalid as witnesses in Jewish law.

1. Relatives: Father; brother; uncle; brother-in-law; stepfather; father-in-law; sons and sons-in-law; nephews; first cousins; the husband to a wife’s relatives; and witnesses who are related to one another.

2. Women: It was determined by derivation from scripture that in most cases, women may not serve as witnesses. There is no doubt that the Halakhah recognized the religious strivings of women. It surely did not intend the slightest denigration to the soul of women, whom they considered the first in the Sinaitic community to receive the Torah. In fact, Rabbi Saul Berman points out that the Sages were concerned that the religious spirit of pious women might move them to pay less attention to their role in the home in preference to their role in the temple and religious community. Thus women are consistently exempted from obligations of participating in communal worship and public events.

3. Minors: The witness must be older than thirteen years and one day. One day, according to most authorities, means just a few moments into the day of birth—a portion of a day is equal to a full day.

4. The deaf and dumb: Even though they may have good sight, witnesses must have mature intelligence and be able to articulate clearly and hear precisely the words of the court.

5. The blind: Even though they may recognize voices and people by hearing, the Torah says that only one who can see may testify.

6. The mentally deranged

7. The "wicked": Exodus 23:1 cites the "wicked" as invalid witnesses. This category includes those who have committed capital offenses; those who have had flogging administered to them; those who are liable for any other punishment (by rabbinic edict); professional gamblers; and those who once committed perjury. Also included are those who act in uncivilized ways; heretics and agnostics; and those who violate the law with malice (le’hakhit), or even out of passion (le’te-avon).

The later rabbis go so far as to exclude from witnessing those who are pe’rutzim be’eizeh averah, afilu aveirah kalah—consistent though minor violators of the moral law.

In sum, an honest man who is a Sabbath-observant Jew is presumed to qualify as a witness under this category. Great sensitivity must be exercised not only to choose proper witnesses, but also to avoid personal inquisitions into the nature of their character or religious observance, remembering the rabbinic adage, "One who shames his neighbor has no share in the world to come."