Yesterday, we learned in the mishnah that opened Tractate Ketubot that virgins are married on Wednesdays and widows on Thursdays. But how do two people actually get married?
To understand how the rabbis think marriage happens, we have to jump ahead to Tractate Kiddushin (spoiler alert!). The first mishnah of that tractate teaches that a woman can be acquired in marriage through money, through a document and through sexual intercourse. To be clear, any one of these acts works to marry a couple when both partners intend to effect their marriage by doing it. You don’t have to do all three before you are officially rabbinically married. Now that’s a cost-effective way to get married!
Today’s daf jumps ahead to how marriages end — and specifically, the validity of a conditional divorce. If a man is going to travel — for business, war or another purpose — and he is worried that he is going to die along the journey or otherwise not return, the rabbis allow him to leave his wife a conditional divorce stating that if he isn’t back by such and such a date, she is divorced from him and free to remarry.
Yesterday, we learned that this conditional divorce is effective regardless of whether he is detained due to circumstances beyond his control. But we also learned that if he is detained by circumstances beyond his control, according to the Torah, the conditional divorce actually doesn’t work! So how can the rabbis override Torah law?
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Today’s daf explains:
Yes, anyone who betroths, betroths upon the agreement of the sages, the sages invalidated his betrothal.
Since the rabbis instituted rabbinic marriage, they can also end it. But what are the legal mechanisms by which they can do so? Well, it turns out that depends on which mode of “acquisition” the couple undertook:
Ravina said to Rav Ashi: That works out well if he betrothed her with money. But if he betrothed her with intercourse, what can be said?
To acquire something with money, the money has to actually be yours. So the courts can retroactively declare the money ownerless and thus invalidate the initial marriage. But what if the woman isn’t betrothed by money, but by sexual intercourse? In this case, Rav Ashi responds:
The sages rendered his intercourse licentious intercourse.
The rabbis insist that in this instance, the initial sexual act and all subsequent sexual acts were not actually for the purpose of marriage. Sex for pleasure and not for the purpose of marriage doesn’t create a marriage in the first place, and so again, the initial marriage is deemed invalid.
The rabbis make a clever move here. According to their understanding of biblical law, a conditional divorce doesn’t work if the man is detained through circumstances beyond his control. So in cases where the marriage was effected through money or sex, the rabbis must come up with a way of annulling the original union — either by retroactively declaring the money ownerless or the sex licentious.
And what of the third method of effecting a marriage, by contract? On today’s daf, the Gemara has nothing to say about it. And to complicate this discussion even further, the Gemara is ultimately going to conclude that actually, probably, both a conditional divorce AND a retroactive dissolution of the marriage are invalid ways to terminate a marriage when a husband is detained on his travels.
So why talk about this at all? As we start our journey through Ketubot, it’s important to remember that the rabbis think that marriage can happen in a bunch of different ways, and that divorce can too. That diversity offers numerous options for people, but also all kinds of complications that the rabbis (and we) are going to have to think through together.
Read all of Ketubot 3 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on July 9th, 2022. If you are interested in receiving the newsletter, sign up here.
