Parashat Ki Tetze: A message to the new chief rabbis

Deuteronomy 22:1: "Thou shall not see thy brother’s ox or his sheep driven away, and hide thyself from them; thou shalt surely bring them back unto thy brother."

By RABBI SHLOMO RISKIN
Picture from the parasha goat 521 (photo credit: Photo: Israel Weiss (weisssi@bezeqint.net) http://)
Picture from the parasha goat 521
(photo credit: Photo: Israel Weiss (weisssi@bezeqint.net) http://)
As a very young rabbi I had the privilege of visiting one of the most revered halachic scholars: Rav Yehuda Henkin, already near-blind but still possessed of a razor-sharp mind. I shall never forget the last words he said to me, gently but firmly: “I told Rav Moshe that after a civil marriage the woman still needs a get [bill of divorce].” He repeated this several times.
I left Rav Henkin profoundly inspired; it was amazing how this elderly sage remained so preoccupied with a point in Jewish law. The issue he raised related to a dispute between him and Rabbi Moshe Feinstein as to whether the parties to a common-law, civil or any other non-halachic marriage who wished to separate required a religious divorce.
Rav Henkin maintained that they would since they had presumably consummated their union; they were living together, and were publicly considered to be husband and wife. One of his proof-texts was our Torah reading of Ki Tetze, which defines marriage: “When a man shall take [ki yikah] a woman and have sexual relations with her...” (Deuteronomy 24:1).
Rav Moshe disagreed, claiming they would not require a get. His logic was that a get is a necessity only for a halachic marriage; the very concept of marriage is unique to the halachic context – and therefore the halachic abrogation of get applies only within the unique rubric of a halachic marriage.
Rav Moshe Feinstein’s ruling has been widely accepted, and this has greatly minimized the problem of mamzerut – children considered to be the offspring of an adulterous relationship and who themselves are biblically prohibited from marrying regular Jews.
Before Rav Moshe’s groundbreaking decision, a woman who received a civil but not a religious divorce and then remarried would still be considered “married” to her first husband – any children she might conceive with her second husband would be considered mamzerim.
Given the high divorce and remarriage rate of Jews throughout the world, and the relatively small number of gittin (halachically valid divorces) issued, the number of potential mamzerim would have become staggering. Rav Moshe’s ruling frees the overwhelming majority of those offspring from any stigma or taint.
It may now well behoove the Israeli religious establishment to welcome civil marriages: Given the great dissatisfaction with the way the religious court system treats women in need of a religious divorce, the fewer women who require religious divorces, the fewer cases of women chained to impossible marital situations the Israeli courts will have to adjudicate.
The talmudic tractate Kiddushin explains the biblical word “kiha” by two different but complementary terms: kinyan and kiddushin. “Kinyan” is usually translated as “acquisition,” but in this context it clearly means “commitment.”
In the Book of Exodus, the Bible outlines the responsibility for guards: “When a man gives his friend money or vessels to guard” (Exodus 22:6); and the Talmud stipulates that from the moment of his acceptance (taking) of the object, commitment and responsibility (kinyan) devolve upon the guardian even though he is clearly not the owner (B.T. Bava Metzia, Chapter Hamafkid). Now this commitment or responsibility does not include any kind of ownership; indeed, if the guardian claims that the object in his trust was stolen, he will only be freed of culpability if he takes an oath that “he did not extend his hand to use the object in any way” (Exodus 22:7).
In this context, as well as in the context of betrothal- marriage, the kinyan (acquisition) is one of commitment- responsibility and not ownership.
Even more to the point, the second interpretive term for kinyan in the context of betrothal-marriage is kiddushin, which literally means “sanctification.” The talmudic discussion links this to hekdesh, that which belongs to God (B.T., Kiddushin 2a,b). From a rabbinic perspective, this means that one’s spouse belongs to God; it also means that God is a partner in every Jewish marriage.
Indeed, the laws of family purity express this truth when they mandate that physical contact between the couple can only be enjoyed when both marriage partners desire it and only during those times in the month when Divine Law gives permission for sexual relations.
The groom verbally declares his acceptance of the Divine Partnership in his betrothal formula: “Behold, you are consecrated to me in accordance with the laws of Moses and of Israel”; talmudic law invokes this principle by insisting that “whoever consecrates his bride does so in accordance with the conditions established by the Torah Sages” (B.T., Gittin 33a).
God as well as the religious-judicial establishment are partners in every religious marriage; it is precisely this partnership which clears the way for rabbinic judges to abrogate (annul) a marriage if a husband is acting as a scoundrel, a measure which was taken five times in the Talmud by religious courts.
Rav Feinstein argues that a halachic divorce is necessary only when the marriage ritual expressed a union which initially included the husband, the wife, and the Almighty God or his faithful deputies.
Shabbat shalom
The writer is the founder and chancellor of Ohr Torah Stone colleges and graduate programs, and chief rabbi of Efrat.