This week’s parsha presents the concept of Jewish marriage. Rambam prefaces his Laws of Marriage with an account of its proceedings before the giving of the Torah. This Sicha analyzes Rambam’s reason for doing so and explains its practical relevance.
Parshat Ki Teitzei discusses the manner in which Jewish marriage takes place. The verse states:
Text 1
When a man takes a wife and has relations with her...
Devarim 22:13
This description alludes to the process that effectuates a marriage, as Rambam explains in his preface to the Laws of Marriage:
Text 2
Before the Torah was given, when a man would meet a woman in the marketplace and he and she decided to marry, he would bring her home, conduct relations in private and thus make her his wife. Once the Torah was given, the Jews were commanded that when a man desires to marry a woman, he must acquire her as a wife in the presence of witnesses. [Only] after this, does she become his wife. This is [alluded to in Devarim 22:13]: "When a man takes a wife and has relations with her...."
Rambam, Laws of Marriage 1:1
In the following laws Rambam writes:
Text 3
This process of acquisition fulfills [one of] the Torah's positive commandments...This process of acquisition is universally referred to as Eirusin ("Betrothal") or Kiddushin ("Consecration")...Once this process of acquisition has been formalized and a woman has become mekudeshes (betrothed), she is considered to be married even though the marriage bond has not been consummated and she has not entered her husband's home... If her husband desires to divorce her, he must compose a get [a formal bill of divorce].
Rambam, Laws of Marriage 1:2-3
The manner though in which Rambam orders the laws is curious: Why does Rambam preface the history of the marriage process, as it was before the giving of the Torah—which seems to have no relevance today—rather than immediately writing, “When a man desires to marry a woman, he must acquire her as a wife in the presence of witnesses. [Only] after this, does she become his wife?”
Noahide Marriage
Simply speaking, the difference between the manner in which a person was wed before the giving of the Torah and afterwards is pertinent in today as well, as it is relevant to the manner in which the marriage of a gentile is consummated. One can postulate that it is for this reason that Rambam prefaces narrative of the marriage process prior to the giving of the Torah, This is expressed in the following ruling:
Text 4
It is straightforward and elucidated in many places, that for a non-Jew, only through (conducting relations) in privacy does a woman become his wife. Once he has relations with her for the intent of marriage, she becomes a married woman, that one’s non-Jewish acquaintance would be punished (for having relations with).
Magid Mishna, Rambam, Laws of Marriage 1:1
This account therefore is not superfluous, as there are practical ramifications today as it pertains to the marriage process of a Gentile. However, this cannot be a sufficient explanation as to why Rambam would bring this history in the beginning of the marriage laws. The section of the Laws of Marriage discusses only those laws that concern Jews and not those that concern Gentiles. Were Rambam to have been keen on explaining the laws that concern Gentiles, he should have stated this where he discusses the Seven Noahide Laws and not in the general guidelines for marriage. This can be demonstrated from the way in which Rambam formulated his Laws of Divorce. It can be observed that Rambam indeed followed this model only mentioning the laws that concern Jews and not those that pertain to gentiles. In the beginning of the Laws of Divorce, Rambam writes:
Text 5
A woman may be divorced only by receiving a bill [of divorce]. This bill is called a get... The Torah's expression (Devarim 24:2), "And he will... send her from his home," does not mean that the divorce does not become effective until she leaves his home. Instead, the divorce becomes effective when the get reaches [a woman's] hand, even though she still is in her husband's home.
Rambam, Laws of Divorce 1:1-5
In this section, Rambam does not record the laws that concern a non-Jew. He instead lists them in the section that the Seven Noahide Laws are discussed:
Text 6
When is a Gentile woman considered divorced? When her husband removes her from his home and sends her on her own or when she leaves his domain and goes her own way. They have no written divorce proceedings. The matter is not dependent on the man's volition alone. Whenever he or she decide to separate they may, and then are no longer considered as married.
Rambam, Laws of Kings 9:8
It is therefore clear that were Rambam’s intent to explain the relevance to a non-Jew, he would not have brought this historical account in the Laws of Marriage, but in the section that discusses the Seven Noahide Laws. Yet, from the fact that Rambam does indeed bring this account, it must be because it has relevance in understanding the marriage proceeding of a Jew after the giving of the Torah. The question therefore is: What significance can there possibly be for a Jew, in knowing the process of marriage as it occurred prior to the giving of the Torah?
“Acquiring” a wife
One may be able to explain the perplexity of the seemingly superfluous historical account of marriage prior to the giving of the Torah through an understanding of the following concept: Before the giving of the Torah, there was no concept of “acquiring” a woman to be a wife, and marriage consisted only of the notion of a man and woman living together as a couple. The natural concept of marriage is one that precludes the idea of acquisition. The phenomenon of marriage is not one where the husband “acquires” his wife, but one in which the two people join together to create one entity—a married couple. The Torah presents this concept of marriage—that it is a bond between the couple—in the following verse:
Text 7
Therefore, a man shall leave his father and his mother, and cleave to his wife, and they shall become one flesh.
Bereishis 2:24
The above verse expresses, that rather than marriage being an acquisition, it is the idea of man and woman being together to “become one flesh.” Were it not for the Torah’s statement that a person first “must acquire her as a wife... (and only) after this, does she become his wife,” it would be impossible to consider a woman a “married woman” without her being considered so in the traditional terms of a spousal relationship. It is only the commandment of the Torah regarding the marriage process that creates the concept of “acquiring,” as it applies to marriage.
