When it comes to marriage, American law is straightforwardly binary: You can be married or you can be unmarried. A wedding moves you from one group to the other, and a divorce moves you in the opposite direction, but there is no status in between. As we have seen over the last several months of reading Tractate Yevamot, however, Talmudic law is not so simple. Marriage itself is a two-stage process: A couple is first betrothed, and then, once they have sexual relations or undergo a marriage ceremony, they become fully married. Then there is levirate betrothal: If a man’s brother dies childless, he is bound to his widowed sister-in-law unless and until they either get married or perform the ceremony of chalitza.
Meanwhile, certain family relationships that have no meaning under American law are prohibited under Jewish law, so that, for instance, a man is forbidden to divorce his wife and then marry her sister; nor can he remarry his ex-wife if she has been married to another man in the interim. Then there is the fact that Talmudic law allows a man to have several wives, so that the relationship between a man and his sister-in-law’s “rival wife” also has a specific legal status. Much of Tractate Yevamot is dedicated to the problems that arise when all these various relationships and prohibitions come into conflict: When, say, a man’s yevama is his wife’s sister, or if a man dies while betrothed to a woman he has not yet fully married. Figuring out all these relationships is a bit like playing three-dimensional chess, and as we have seen over the last several months, the rabbis delight in proposing the most obscure and complicated cases.
But in this week’s Daf Yomi reading, which covered chapter 13 of Yevamot, things got still more complicated, as the rabbis introduced a new wrinkle in the law of marriage. This has to do with the betrothal of a girl who is legally a minor, not yet having reached sexual maturity. A father, or, if he is dead, a mother or uncle, has the right to betroth a minor girl to a husband of his choosing. This makes Jewish law just like Roman law or virtually any other premodern legal system, giving a father power over his daughter’s marriage. The plot of A Midsummer Night’s Dream, or Romeo and Juliet, revolve around the conflicts this power can create.
But in Yevamot 107a, we learn that Jewish law strives to avoid such conflicts, by giving a girl veto power over her relatives’ choice of bridegroom. A girl’s relatives may pledge her to a certain man, but she has the right to refuse him at any time during their betrothal—that is, so long as she has not yet undergone either a marriage ceremony or sexual intercourse with her intended. That is the law according to the strict interpretation of Beit Shammai. But Beit Hillel gives the girl even more power, allowing her to refuse her husband even after they are formally married. This refusal can take place at any point in the process: “Even if she is sitting in a bridal chair going from her father’s house to her husband’s house and said along the way, ‘I do not want so-and-so for my husband,’ this constitutes a refusal.”
The right of refusal, the Talmud makes clear, is meant to give a young bride the chance to have second thoughts about her groom. Even initially, when the match is first proposed, she must be asked for her consent, and if she doesn’t give it, she has the right to leave her husband-to-be. But if she does give consent, and then after living in his household decides that she doesn’t like him, she may publicly refuse him, by having a court write a document with the formula: “On such-and-such a day, so-and-so, the daughter of so-and-so, performed refusal in our presence.” This is one of several instances in Yevamot when the rabbis make clear their desire to give women more agency in the marriage process. Just as a man may not marry his yevama against her will, and just as the rabbis are lenient when it comes to declaring a missing husband dead in order to free his wife to remarry, so here the biblical law is interpreted in such a way as to maximize the woman’s room for choice.
But this right of refusal raises a number of legal questions, which the rest of the chapter goes on to discuss. If a minor girl has the right to refuse her husband, does this mean that in some sense they were never married at all? That is the hard-line interpretation of Rabbi Elazar in Yevamot 107b: “The act of a minor girl is nothing,” so that she is unable to consent to marriage at all. This means that “her status is as though she were a seduced unmarried woman,” and if she has sex with her husband it qualifies as “licentious sexual intercourse,” a sin. Rabbi Yehoshua, on the other hand, believes that “she is wife in every sense,” including for purposes of property: “Her husband has rights to items she finds, and to her earnings … and he inherits her assets if she dies.” The only difference between the rabbinically authorized marriage of a minor and the Torah authorized marriage of an adult is that the former can be annulled by a refusal, while the latter requires a bill of divorce to end it.
A further distinction between refusal and divorce has to do with the subsequent relationship between the husband and his ex-wife’s relatives. A divorced man is permanently forbidden from marrying his wife’s sister and other close relatives; but a man who is betrothed to a girl who refuses him can go on to marry her sister. To illustrate the different effects of divorce and refusal, the mishna on Yevamot 108b imagines situations in which a minor girl goes through an improbable number of relationships before reaching adulthood: “If a minor girl refuses one man and marries another, and he divorces her, and then she marries another man and refuses him, and then she marries another man and he divorces her,” which of these husbands is she subsequently permitted to remarry? The answer is that she can remarry the first and third husbands, whom she left through a refusal, but not the second and fourth, who gave her a bill of divorce.
But as the Gemara goes on to point out, this is not fully consistent. Say a girl marries a man and divorces him, and then marries a second man and refuses him. According to the mishna, she should not be able to remarry the first husband, because “anyone she leaves by a bill of divorce, it is prohibited for her to return to him.” But if the second marriage was annulled by her refusal, then shouldn’t it be considered as if she had never gotten married a second time at all? In that case, there shouldn’t be any obstacle to her returning to her first husband; but the mishna says that there is.
In the Gemara, the amoraim try to figure out the contradiction. Rava offers one explanation: Perhaps the law is afraid that the woman’s first husband, whom she divorced, would try to seduce her away from her second husband. After all, “she is familiar with his intimations and gestures,” and this familiarity might draw her back to the man she had left, rendering her unfaithful to her new husband. To prevent such backsliding, the law made the divorce final, so that the two could never reunite.
But this remains a thorny area of law, so much so that the Gemara tells an anecdote about it. Once during “the time of danger”—that is, the era of Roman persecution that followed the Bar Kokhba revolt—such a case involving a twice-married minor girl actually arose. To get a definitive answer, those involved needed to appeal to the highest rabbinic authority of their day, Rabbi Akiva. But since Akiva was in a Roman prison, they had to hire an emissary, for the immense price of 400 dinars, to sneak into the jail and consult him, then return with the answer. It was a definite “no”: Having divorced her first husband, the girl could not return to him. For these purposes, her second marriage counted, despite the fact that it was legally annulled by her refusal. This example of a marriage that both did and did not occur is a sign of how complex Talmudic law can become, as the rabbis seek to reconcile the letter of the law with the needs of human beings.
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