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Does Halacha ever permit non-marital sexual relations?

Torah 521 (photo credit: Fort Worth Star-Telegram/MCT)
Torah 521
(photo credit: Fort Worth Star-Telegram/MCT)
In various forums, ranging from conferences about the “singles crisis” to the Israeli TV sitcom Srugim, the religious community has begun to confront the regrettable phenomenon of premarital relations. Despite the understandable emotional hardships, particularly for older singles, the arguments to bypass the halachic restrictions against this behavior have failed to gain rabbinic support, and for good reason.
While the Torah explicitly commands Jews to procreate, it never definitively demands people to get married. While there are many biblical narratives related to marriage (including levirate relationships), marriage and divorce laws are discussed only indirectly. “If a man takes a wife and has relations with her...” (Deuteronomy 24:1-4), the verse states, leaving ambiguous whether such an action is positively commanded.
The Talmud itself, furthermore, remains equivocal as to whether such marriage is commanded (Kiddushin 41a) or optional (Moed Katan 18b). Moreover, the blessing recited at weddings, known as birkat erusin, speaks more generally about sexual prohibitions and the sanctity of marriage, as opposed to the more concise traditional formulation recited over mandated actions (Ketubot 7b).
Yet Maimonides (Ishut 1:2) and many other scholars (Smak 183) asserted that there is a definitive obligation to get married. Others formulated the obligation more indirectly – one does not have to get married, but if one wants such a legal relationship, it can only be created through certain procedures (Hinuch 552). Some figures, however, asserted marriage is a wonderful thing but is never commanded (Rosh Kebutot 1:12). At best, it may be viewed as a facilitator (hechsher mitzva) for procreation, which can be achieved through other relationships.
While this latter interpretation would explain some of the quirks regarding the blessings of the wedding ceremony (Ritva Ketubot 7b), it remains questionable what other forms of relationships may legitimately facilitate procreation and receive divine endorsement. The Torah clearly prohibits prostitution (Deut. 23:18) and other forms of promiscuous behavior (Leviticus 19:29). Extramarital relations such as adultery are condemned by the Torah, and in any case, it remains unclear if illegitimate offspring from such illicit affairs fulfill the commandment to procreate (Minhat Hinuch 1).
In medieval times, Rabbeinu Asher (d. 1327) suggested that a legitimate alternative (or supplement) to marriage was concubinage. The Bible, which permitted polygyny, also tells of numerous men, including the nation’s forefathers and kings David and Solomon, establishing more casual yet ongoing marriage-like relationships with concubines. Although a few talmudic sources indicate that a formal ceremony is necessary to establish such a relationship (Yerushalmi Ketubot 5:2), most talmudic sources do not require such an act (Sanhedrin 21a), without almost all agreeing that no alimony (ketuba) is granted to the woman in case of separation (Rabad Ishur 1:4).
While a few scholars believed that a divorce writ was necessary in cases of separation (Shu”t Harosh 35:10), even the majority who did not require such formal separation contended that during the concubinage the woman must remain exclusively committed to the man, usually living in his domicile. More casual flings were strictly prohibited as outright depravity (Ramban, Sefer Hamitzvot Shoresh 5).
Medieval responsa clearly attest to the fact that concubinage was common in certain Jewish communities, such as in Spain (Shu”t Haran 68). Yet many scholars prohibited outright such relationships. Maimonides (Melachim 4:4) believed that the Bible only permitted concubines to kings, while Rabbi Meir Abulafia asserted that the Sages prohibited it to prevent Jewish women from being mistreated (Yad Rama Sanhedrin 21a). Indeed, many talmudic sources indicate that relations with concubines were viewed as shady (Genesis Raba 74:7).
The Spanish pietist Rabbi Jonah of Gerondi condemned such arrangements as illicit (Sha’arei Teshuva 3:94-5), noting that the Sages prohibited seclusion (yihud) with single women to prevent sexual acts (Avoda Zara 36b). Even his cousin Nahmanides, who defended to him the legality of such relationships, concluded his treatise by warning of its hazards, including the fact that concubines regularly failed to immerse in a mikve, or ritual bath (Shu”t Harashba 284). Indeed, immersion in ritual baths might reduce the severity of the action, but does not lift these prohibitions against fornication (Rivash 425).
While scholars continued to debate the theoretical permissiveness of these relationships (EH 26:1), concubinage became extremely uncommon as people came to see its legal and moral pitfalls and the ban against polygamy became more widespread (Yam Shel Shlomo Yevamot 2:11). Two attempts were made to revive such relationships in the modern era. Rabbi Jacob Emden (d. 1776) suggested establishing such relationships to prevent more serious sexual extramarital mishaps (Sheilat Ya’abetz 2:17). Rabbi Ya’acov Toledeno (20th century, Morocco) suggested that concubinage, which does not require formal divorce, might serve as an alternative to formal marriage to prevent women from suffering at the hands of recalcitrant husbands, should separation become necessary. Both of these suggestions, however, were rejected by the rabbinic consensus who agreed not to tamper with the sanctity of the marital covenant, which is characterized by commitment and fidelity.
The author, online editor of Tradition and its blog, Text & Texture, teaches at Yeshivat Hakotel.
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