Regulation of Marriage in Light of Freedom to Contract: A Rabbinic Perspective

Introduction

This paper addresses the fundamental question of marriage: status or contract? To answer this question in an American context requires a historical perspective. American law evolved from British common law, which, in turn, had its origins in Catholic law—a status-based system where the power to marry was vested in the state/church. The differences between a status and contractual are vast and each has drawbacks, most clearly highlighted in differing levels of state intervention in marriages of prisoners of war. However, in recent history, American law has shifted towards a contractual model, evident in regulatory relaxation regarding the terms of marriage, activities within marriages, grounds for dissolution, and the eligibility of marrying parties. Despite the clear positive motivators for such a shift, taking the freedom to contract to its logical extreme could threaten the integrity of marriage as an institution of commitment.

The Rabbinic system, as a limited contractual model, provides guidance to the American system on this issue. Rabbinic marriage's roots in contractual law are evident in the Rabbinic laws of divorce, customs in the marriage ceremony, and the permission of third-party agents in marriages. As a contractual system, most Rabbinic rules of marriage act as norms that can be bypassed rather than strict laws, resulting in a system highly dependent on and adaptive to social and historical contexts. Yet Rabbinic marriage has maintained a distinct character of commitment as defined by the ketubah (roughly the Jewish marital finance contract) to distinguish it from mere cohabitation contracts. The need to distinguish between contract types is also present in the American legal system, particularly in the distinction between unilateral and bilateral contracts. Therefore, American law has the opportunity and the impetus to imbue marriage with a distinct character separate from that of mere cohabitation.

The Status Contract Distinction

The fundamental concept underlying the American institution of marriage is a topic that has warranted much discussion. A dichotomy, first introduced by Joel Prentiss Bishop in his 1852 publication Marriage and Divorce, presents marriage as either a status or contract [1]. This dichotomy has largely been accepted as a useful tool in scholarship. These two possibilities represent vastly different ways of relating to marriage. Status implies a tight relationship between the state and marriage; the state is an active party that bestows such status. Contract is much more removed. Marriage as contract is a private agreement between consenting individuals in which the state’s role is simply as a guarantor. There are several other key distinctions between the two conceptions, but, in terms of regulation, an understanding of the differing roles of the state is foremost.

It should be noted that modern scholarship has accepted these models as opposite ends of a gradient. It is clear that marriage falls somewhere in between because marriage is an agreement between consenting parties and thus contractual, yet “some aspects of marriage are ineradicably different from ordinary contracts” [2]. To properly understand where American law of marriage currently falls on this spectrum, it is prudent to engage in a historical analysis of the concept’s development.

Roots of the American concept of marriage

The origins of the common law concept of marriage are in Roman Catholic law. Under a Catholic model, marriage is a sacramental relationship of status governed by holiness, not contract. It is a religious ceremony that requires officiation by a clergy member with the power to effect a change in status. The common law adopted this model under Henry VII. Henry VII eventually removed the Catholic Church from the common law but did not remove its structure. In fact, Henry VII was such a strong defender of canon law marriage that he was awarded the title Defender of Faith by the Pope [3]. Rather, the reason for Henry VIII’s removal of the Catholic Church was entirely personal—a power grab to allow him to annul his marriage. Thus, he simply substituted the Church for the more favorable Archbishop of Canterbury.

A more substantial transition of power took place in colonial America. In the first American marriage, the pilgrims asserted marriage as a civil institution. According to William Bradford’s account, the pilgrims saw marriage “as being a civil thing [and] most consonant to the Scriptures (Ruth iv) and nowhere found in the Gospel to be laid on the ministers as a part of their office” [4]. Rather than marriage as an institution governed by God, and by proxy the church, marriage became an institution governed by the state. Nonetheless, it remained an institution worthy of external governance. As explained by the Maynard court it remained “something more than mere contract.” It is a distinct status: a relation between the parties is created which they cannot change. Other contracts may be modified, restricted, or enlarged, or entirely released upon the consent of the parties. Not so with marriage. The relation once formed, the law steps in and holds the parties to various obligations and liabilities [5].

The invocation of the immutable relationship of marriage is a strong formulation of the concept of status. For the Maynard court, a contract is simply the means of creating the status of marriage. Once that status has taken hold it comes into the jurisdiction of the law, not the involved parties.

Even colloquially, the primacy of state-based status is evident in the famous American formulation “by the power vested in me by the state, I now pronounce you man and wife.” In this framework, marriage is an authority of the state. Clergymen only have the power to officiate in as much as they are representatives of the state—clergy not registered with the state have no authority to do so.

In this framework, it is within the state's authority to determine the terms and nature of marriage. For much of the 20th century, many states required blood tests as a necessary step in acquiring a marriage license [6]. The state was also the determinant of the content of marriage. Marriages were required to maintain an “essential incident of marriage” and any marriage that deviated from such was invalid [7]. The legislature determines its parameters, amends its statute when it sees fit, delegates authority to whom it sees fit, and determines who can marry whom. Even divorce was also up to the discretion of the state. Take for example the rule of civil death, a deprivation of citizenship rights for those sentenced to life in prison. Those considered civilly dead were subject to an automatic dissolution of their marriage even upon objection of all other parties [8].

This view of marriage can be likened to driving. American law requires all drivers to obtain a license. The granting of this license is at the discretion of the state—even those with full knowledge and ability to drive are committing a crime if they lack a license. The parameters through which licensing is granted are liable to change depending entirely on the status constructed by the government. The parameters of marriage are also liable to change. For the large majority of American history, gender was a restriction on marriage, but it no longer is. The government has the authority to create and repeal those restrictions. The possibilities of what could be prohibited or permitted are wide-ranging and based on the will of the legislature.

Competing Agunah Problems: Flaws Inherent to Each System

To fully understand the significance of marriage as status, it is valuable to contrast the system to a contractual model. The contractual model explored in this paper is the model of rabbinic Judaism. The ways in which Judaism allows for a contractual concept of marriage will be developed in later sections of this article but can be taken for granted at this point.

The rabbinic model has an unfortunate consequence that is widely discussed and known as the “agunah problem.” An agunah problem occurs when one party to the marriage refuses or is unable to divorce leaving the wife trapped in a hopeless marriage. The most extreme example of such a case is prisoners of war. Wives are unable to get a divorce without the consent of their husbands and are thus stuck in a marriage with a man who may very well be dead. But because the rabbinic system’s marriage is a private contract the marriage cannot be ended by court decree. Either a get (Jewish divorce) has to be given, or definitive proof of death must be present. Absent these factors, rabbinic law is incapable of freeing wives from these hopeless marriages. The explicit example given in the Talmud is a man on a ship in the open seas who sinks, and (at least in pre-modern times) no one knew where the husband was, and whether he was alive or not. The Talmud makes it clear that such a woman cannot remarry absent evidence of her husband’s death. The courts do not even have the power of annulment in such circumstances as is noted by the late Rishon, the Shitah Mekubetzet: One should ask why a woman ought to be an Agunah if her husband drowns in boundless waters — shouldn’t the rabbis simply annul her marriage? The answer is that the rabbis cannot annul marriages unless the man gave his wife a get [9].

In the contractual system of Judaism, the private parties are the only ones who can create or dissolve the marriage, unless it is definitively proven that one of the parties is dead. In the status system of American law, however, the state has the power to create or dissolve marriages, e.g., through judicial decree. This is illustrated by how American law treated the agunah problem in the case of Tom Gordy as explained by his nephew Jimmy Carter When the Japanese bombed Pearl Harbor, my Uncle Tom Gordy and about thirty other sailors were stationed on Guam .... Tom and the others were captured about a month after the war began and taken to Japan as prisoner. Tom’s wife, Dorothy, and their three children left San Francisco and came to Georgia to stay with my grandparents... In the summer of 1943, the International Red Cross notified Dorothy officially that Tom was dead and she began receiving a widow’s pension.... After a year or so, she married a friend of the family who had a stable job and promised to care for her and the children. Two years later, when the war ended and American troops entered Japan, they found Tom Gordy still alive! [10].

Because of the American state’s power to determine status, the Department of War was able to end Gordy’s marriage through a decree of death. Even though the premise was false when the state issued Tom Gordy’s death certificate, they effectively ended the marriage. This is a relatively extreme power granted to the state—they were able to end the marriage without the consent of the involved parties. At the outset, this seemed sensible because the alternative would be to trap Mrs. Gordy in an entirely isolated marriage. Yet the ultimate result of this judicial decision was a premature divorce and the destruction of a family after only two years of separation. In Rabbinic law, courts have no authority to end Gordy’s marriage. The second marriage would be invalid, and the first would remain since he is not dead. Only an actual death by one of the involved parties ends the contract, not a decree of a death certificate by the state.

Public legal systems end marriages that should not end, and private legal systems cannot end marriages that should end. And there is no elegant solution to this problem. The American model of marriage is status-driven, by the courts and the judge. The courts determine when you are married, the courts determine when you divorce. The courts determine when you are alive enough to still be married and when you are dead enough to end your marriage; or when you have done something else that ends your marriage. Whereas the rabbinic system leaves decisions of entrance and exit to the involved parties. There are pragmatic consequences to either type of marital system, and the choice between the two is not entirely obvious. Nonetheless, it appears that American law is currently gravitating towards a more contractual model.

Shifting Models in American Law

Up to this point, we have viewed American law as nearly entirely status. For much of history, this view is largely accurate. American law is littered with examples of state restrictions on everything from the terms of marriage, activities within marriage, grounds for dissolution, and most controversially, eligible parties. Recent history, which has been underlined by a gradual shift away from any religious sanctity in law towards a more liberalized and secular society, has led to the stripping of much of the court’s authority to provide such protections. In as much as the contractual model of marriage is a liberal form of privatization as compared to a state-defined status, the progressive relaxation of state restrictions on marriage is a shift towards marriage as a private contract. Initially, in American marriage, a wife's ownership was entirely encapsulated in the husband and a husband was required to support his wife through a doctrine known as coverture. According to William Blackstone, coverture created an institution of marriage in which “[the] very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband” [11]. The rule of coverture was a stipulation made by the state in all marriages. Yet over time, room was made for parties to contract around this stipulation. In 1848, New York passed the Married Women’s Property Act allowing wives to have a distinct legal status as property owners. Over the following 70 years, all other states followed suit [12]. Coverture was a fundamental principle regarding the status of spouses. The slow erosion of this principle highlights an early step towards a weakening of the distinct status of marriage and increased the freedom for involved parties to decide their particular marital rights. The scope of martial rights eligible to contract around has only increased since.

The most explicit type of contracting in marriage law is that of prenuptial agreements. For most of American history, prenups were not accepted as valid. However, in 1983, the National Conference of Commissioners on Uniform State Laws drafted the legislation Uniform Premarital Agreement Act. This act has since been enacted by 28 states giving prenups legal legitimacy [13]. The increasingly unfettered allowance of prenuptial agreements signals the ability of parties to restructure the financial obligations of marriage how they see fit irrespective of the state’s preference. This allowance may be relatively unsurprising for monetary aspects since the financial commitments between parties most clearly resemble contracts. However, prenuptial agreements are not only confined to the financial aspects of marriage. Even aspects of marriage that are less obviously open to freedom to contract have been included in prenuptial agreements with clauses regulating time spent with in-laws, frequency of sex, drugs, and weight standards. These stipulations and more have been included in what are broadly termed lifestyle clauses which emphasize the extent to which the duties implied by marriage are free to the involved parties to determine. As of now, even post-nuptial agreements are often accepted as valid. The permission of after-the-fact renegotiation shows an underlying conception of a contractual marriage not just in formation but throughout. Thus, at no point in the marriage do the parties acquire a status that is fundamentally outside of the bounds of contracting. In this sense, American marriage is no longer a distinct status.

In the past, the distinct status of marriage was maintained through strict regulation of marital duties and privileges, particularly concerning sex. Cohabitation was frequently prohibited, non-procreative sexual conduct and contraceptives were criminalized, and parental rights of children born out of wedlock were limited [14]. Each of these examples highlights the favored status of the married over the unmarried. Yet over time, these restrictions were eroded in favor of a more liberal ability for individuals to decide the relationship between marriage and sex for themselves. This is likely because the coupling of sex and marriage became untenable under a system in which marriage no longer has a distinct character or status.

While the disappearance of regulations within marriage illustrates the state’s evolving views on parties’ abilities to establish the purpose and content of marriages, marriages most obviously resemble contracts in the entrance and dissolution of the agreement. Thus, these two aspects of marriage are particularly vital to our analysis. In terms of dissolution, America has drifted greatly from the original Catholic conception of dissolution towards a much more contractual model. From the late Middle Ages until the 16th century, marriage was considered an eternal bond only dissoluble by death [15]. And even the strength of death as a cause for divorce was debated: Death was simply an interlude with marriage continuing in the afterlife. It was an entirely eternal institution. However, the Protestant Reformation paved the way for legal acceptance of divorce which America, as early as 1648 in the General Court of Massachusetts’ Laws and Liberties, adopted but only in extremely limited circumstances [16]. Even some egregious cases in which under a modern lens divorce would seem obvious were denied. The New York Times cites an 1861 case in which a woman was denied divorce after being beaten unconscious: “The judge admonished the couple that a mere ‘one or two acts of cruel treatment’ were not proper grounds for divorce, and that ‘the wife should not seek on slight provocation to dissolve that sacred tie which binds her to her husband for life, for better or worse’” [17]. The logic of the presiding judge is only comprehensible in a status-driven system ordained by divine law. Those arguing against it looked to undermine that conception. In response to this case and many like it, Elizabeth Cady Stanton argued passionately for a revision of divorce law to the Judiciary Committee of the New York Senate. In this argument, she outlined a clear push toward contractual marriage:

If it [marriage] is a mere legal contract, then it should be subject to the restraints and privileges of all other contracts. A contract, to be valid in law, must be formed between parties of mature age, with an honest intention in said parties to do what they agree. The least concealment, fraud, or intention to deceive, if proved, annuls the contract. A boy cannot contract for an acre of land, or a horse, until he is twenty-one, but he may contract for a wife, at fourteen. If a man sells a horse, and the purchaser finds in him "great incompatibility of temper"--a disposition to stand still, when the owner is in haste to go--the sale is null and void, the man, and his horse part company. But in marriage, no matter how much fraud and deception are practiced, nor how cruelly one or both parties have been misled; no matter how young or inexperienced or thoughtless the parties, nor how unequal their condition and position in life, the contract cannot be annulled…Why is it that all contracts, covenants, agreements, and partnerships are left wholly at the discretion of the parties, except that which, of all others, is considered most holy and important, both for the individual and the race? [18]. Not only does Stanton seemingly take for granted that marriage is a “mere contract,” but she assumes it is an entirely private contract that should be “left wholly at the discretion of the parties” implying that the only relevant parties are the spouses, not the state. This represents a tremendous shift in concept and foreshadowed the necessary upheaval of the institution of marriage necessary to reform divorce law.

The shift began at the impetus of World War I. After extended stays in a more secularized Europe, soldiers returned with a more liberalized sexual ethic. As a result, conditions were forced to change. This change began rather informally. Although grounds for divorce remained strictly on a fault basis, most divorces in the mid-20th century were uncontested and in New York, courts even accepted allegations of fault on pro-forma grounds [19]. Grounds for divorce also became increasingly lenient with many states including provisions for divorce on grounds of separation [20]. After World War II, this liberalizing trend only increased with divorce reaching an all-time high through the informal methods offered [21]. In response to this reality of shifting social norms came a wave of no-fault divorce legislation initiated by California’s No-fault Family Act of 1969 [22]. No-fault laws took discretion outside of the jurisdiction of the courts and left it to the involved parties. As put by W. Bradford Wilcox, “The 1970s marked the period when, for many Americans, a more institutional model of marriage gave way to the "soul-mate model" of marriage” [23]. The state ceased to be a party in marriage and instead simply became an external enforcer of an agreement between “soulmates.” In more restricted models of marriage, only the state is licensed to determine whether a particular circumstance warrants a divorce. That view is untenable in the context of freedom to contract. The parties involved, not the state, should have the authority to freely dissolve their agreement when they see fit. Although no-fault divorce has risen to prominence as a somewhat hot-button issue in recent years, the far more politically charged debate hinging on this question of status or contracts was that of gay marriage.

Obergefell v. Hodges (2015) was the most striking shift towards a private contracting of marriage. Obergefell held that states must recognize same-sex marriage under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. But even before the gay rights movement began gestating, we saw a similar removal of restrictions on parties eligible for marriage in the case of Loving v. Virginia. In this case, laws prohibiting interracial marriages were deemed to be unconstitutional [24]. In his decision, Judge Warren explained that marriage was a fundamental right protected under the 14th Amendment [25]. This explanation would be difficult under a conception of marriage as status. Take the analogy of a driver’s license—to say that all people have a fundamental right to be given a license would be absurd and nearly undermine the institution of licensing. On the other hand, a fundamental right to marriage is entirely logical in a contractual model. The government has no right to impede a valid agreement between consenting parties. Unsurprisingly, Loving became a foundational precedent upon which the protection of gay marriage was established. Take, for example, the Fourth Circuit’s decision in Bostic v. Shaefer, which overturned a same-sex marriage ban in Virginia. In his majority opinion Judge Henry F. Floyd drew a clear parallel to Loving, explaining that “over the decades, the Supreme Court has demonstrated that the right to marry is an expansive liberty interest that may stretch to accommodate changing societal norms.… [I]n Loving v. Virginia, the Supreme Court invalidated a Virginia law that prohibited white individuals from marrying individuals of other races” [26]. The language used by Judge Floyd is particularly interesting. He uses Loving as evidence of a flexible understanding of marriage. While he explains this flexibility as something bounded by societal norms and not pure personal freedom, his understanding represents a clear shift away from a status controlled by the state towards a more liberalized system. This logic is similarly applied in Obergefell which ruled that same-sex marriages are protected under the Due Process and Equal Protection clauses of the 14th Amendment [27]. In the realm of private contracts, equal protection is a right that must be protected, and same-sex marriage bans would infringe on the autonomy of individuals contracting. In Obergefell, Judge Kennedy makes the issue of autonomy explicit, stating that “a first premise of the Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy” [28]. This decision and the justifying language underline a conception of marriage that has become largely contractual. So, while the debate over same-sex marriage was often framed as a political and religious divide, it also underlines fundamentally differing models of marriage.

Sociological Impact of Unbounded Freedom to Contract

Freedom to contract in its most extreme form constitutes a destruction of the integrity of marriage. To reject Maynard entirely and say that marriage is no different from any other contract is to reject anything fundamental about marriage. Under this framework, the possibilities for what can be considered marriage are seemingly endless. It is entirely neutral on the content, parties, or structure of marital agreements. Nothing is stopping an individual from entering into a marriage that is only contracted to apply Monday to Thursday and a separate marriage for weekends. An individual can have two painters, one for the bedroom and one for the living room, or two roofers, one who works weekends and one who does not. Thus, logically, the same would apply to marriage contracts. While it is unlikely that these types of marriage will ever become common, the underlying lack of commitment or sublimity of marriage represented in this theoretical case has begun to seep into modern marriages. The shift towards contractual marriage has coincided with the breakdown of marriage as an institution: the young are becoming increasingly less interested in the prospect of marriage and even those who do get married are waiting later than ever [29]. Although this development is problematic—the advantages of children in households with committed spouses are well documented—the research presented makes no attempt at a normative judgment on this issue [30]. It is a hotly contested issue deserving of discussion by sociologists and others more qualified on the matter. Similarly, the research presented takes no stance on whether a return to a status-based conception of marriage is warranted. Rather, the author hopes to present a framework in which to understand and grapple with a contractual system: how can and must marriage be appropriately regulated on its own terms? This is not a question solely relevant to those looking to promote increased regulations and maintain a fundamental character of marriage. There are some contracts that cannot in good faith be called marriage. This is a fact that even the most strident proponents of unbridled freedom to contract must grapple with.

**Marriage in the Rabbinic System **

As previously noted, American and common law takes much of its foundational view of marriage from the Catholic system. Although this inheritance is to be expected given the Christian dominance in Great Britain and America at the time, it was certainly not the only model available for the founders to draw upon. A vastly different model present in the Anglo-Saxon world is that of rabbinic Judaism. Despite the religious orthodoxy and emphasis on holiness within marriage in rabbinic Judaism, this model is largely contractual. Yet the concerns listed above as to the foundational structure of marriage have not been present in this system. Even in the present day, the rate of divorce is much lower and the level of commitment much higher in Orthodox Jewish-American marriages compared to their peers [31]. While it is likely true that much of this fact stems from sociological factors, we hope to show that there is also legal regulation ensuring commitment in the rabbinic system. Thus, it is likely that Jewish law can shed light on the question at present: how can marriage be maintained in light of the freedom to contract? Before addressing that question directly, it is necessary to understand the way in which the rabbinic system is one of contracts.

Rabbinic Marriage Law as Contracts

Jewish law essentially does not perceive marriage as a status. It is natural law constructed by two people who enter into a marital relationship. The rabbis do not create marriage. They do not pronounce you married. You do not need a marriage license. You do not even need a rabbi. Rather the fundamental requirement is simply an agreement by consenting parties with witnesses to confirm the fact [32]. Yet this understanding was a major subject of dispute during the Talmudic formalization of rabbinic law. This dispute is most lucid on the question of divorce. In this discussion, there are three fundamental opinions laid out in the Babylonian Talmud regarding the parameters of marriage. In their most concise forms, all three are listed consecutively in the Mishna below. MISHNA: Beit Shammai says: A man may not divorce his wife unless he finds out about her having engaged in a matter of forbidden sexual intercourse [devar erva], i.e., she committed adultery or is suspected of doing so, as it is stated: “Because he has found some unseemly matter [ervat davar] in her, and he writes her a scroll of severance” (Deuteronomy 24:1). And Beit Hillel says: He may divorce her even due to a minor issue, e.g., because she burned or over-salted his dish, as it is stated: “Because he has found some unseemly matter in her,” meaning that he found any type of shortcoming in her. Rabbi Akiva says: He may divorce her even if he found another woman who is better looking than her and wishes to marry her, as it is stated in that verse: “And it comes to pass, if she finds no favor in his eyes” (Deuteronomy 24:1) [33].

It should be noted that although the text seems to be discussing what is strictly permitted, it is later clarified that they are simply discussing what is proper. All opinions agree that once the parties agree to an ill-advised divorce what is done is done [34]. Nonetheless, the opinions define the proper circumstances of divorce and in doing so seem to take differing stances on marriage itself. Before defining conceptual models behind the dispute, it is necessary to explicate each opinion. Beis Shammai is the most restrictive stance. In Jewish law, if a woman involves herself in forbidden sexual relationships, erva, she becomes forbidden to be sexually intimate with her husband [35]. This prohibition undermines the relationship itself and as a result, requires a divorce. According to a literal reading, this is the only circumstance in which Beis Shammai considers divorce proper [36]. Thus, for Beis Shammai, divorce is only proper when it is required. Beis Hillel requires no such undermining of the marriage. However, divorce cannot take place without cause. There must be a formal act to merit the dissolution of marriage, but this requirement is merely procedural. The act can be as trivial as burning or over-salting food [37]. As the Tur explains, any act that is considered negligence against the other party is grounds for divorce under Beis Hillel [38]. And Rabbi Akiva is clearly the most permissive position. From his use of the language of “even” it is clear that Rabbi Akiva condones divorce in the situations laid out by Beis Shammai and Beis Hillel. His additional permission must be understood from an emotional perspective. This much is clear in the commentary of the Pri Hadash who explains that, in Rabbi Akiva’s opinion, divorce is only permitted in the case in which the husband is drawn to another woman because of her beauty. However, if he is drawn to her by her wealth, it is not a legitimate reason to force a divorce. The reason given by the Pri Hadash for this distinction is that desire for wealth is not a legitimate cause of hatred towards the first wife while lust for another woman’s beauty is [39]. As an emotional attribute, hatred requires no formal act from the other party. Instead, it is an internal feeling of the party initiating divorce. This is the sense in which Rabbi Akiva is more permissive than Beis Hillel—he requires no formal act. However, there is another sense in which our interpretation of Rabbi Akiva cannot be fully permissive in nature. If that were true, Rabbi Akiva’s reading of the biblical source for divorce would be redundant. The biblical source in question is as follows: “And it comes to pass, if she finds no favor in his eyes because [כִּי] he has found some unseemly matter [ervat davar] in her, and he writes her a scroll of severance” [40]. While the English translation may seem clear, there is an added ambiguity in the Hebrew text: the translation of כִּי as “because” is disputed. The Talmud explains that Rabbi Akiva understands the ambiguous phrase to mean “or” while Beis Shammai understands it to mean “because” [41]. Thus, Rabbi Akiva reads the biblical verse as “And it comes to pass, if she finds no favor in his eyes, or if he has found some unseemly matter in her.” If we take Rabbi Akiva’s position to mean that divorce is always allowed even without a formal act of wrongdoing, then the inclusion of the latter reason is entirely redundant—of course, divorce will be permitted in a case with a formal act of wrongdoing if allowed without. The Talmudic commentator the Penei Yehoshua solves this redundancy by explaining that Rabbi Akiva’s added leniency is actually restrictive, at least conceptually [42]. Rabbi Akiva only recommends divorce in cases in which there is an emotional severance between the two parties which is irreconcilable. However, a formal act of wrongdoing does not necessarily constitute severance. Accordingly, Rabbi Akiva requires a separate reason, the language of “or,” to permit divorce based on a formal act. But fundamentally Rabbi Akiva views marriage as an emotional relationship, not a formal contract.

Now, to take a conceptual lens to these arguments, we can say that Beis Shammai’s marriage is status-driven, Beis Hillel’s is contractual, and Rabbi Akiva’s is emotional. Beis Shammai’s heavy limitations on marriage seem to require an understanding of marriage as status. Contracts are more widely eligible for dissolution, while status is dissolved only at the behest of status. Once the government has deemed a party as an eligible driver, a request for revocation is not a sensible reason for the dissolution of that status. Instead, dissolution requires an act that directly undermines that status such as drunk driving. Similarly, the status of marriage should only be dissolved by an act of erva that directly undermines the marriage. Beis Hillel’s emphasis on a formalistic basis of divorce is parallel to the formal breach of obligations necessary to abrogate a contract. Lastly, Rabbi Akiva rejects any conception of marriage rooted in formal law. Instead for Rabbi Akiva marriage is love and thus the legal formalization of marriage is only an after-the-fact reflection of an emotional connection.

We have a general rule in Jewish Law that the opinion of Beis Hillel is authoritative because it was widely accepted over Beis Shammai in the times of the Talmud [43]. Thus, in accepting the opinion of Beis Hillel with regards to divorce we are forced to conceptualize marriage in light of that opinion. In doing so, it is clear that rabbinic marriage is fundamentally contractual. The rabbinic conception of marriage as a private contract is evident in the discussion of divorce rights but it is also part and parcel of the structure of the marriage ceremony itself. Even some of the auxiliary customs are designed to make sure that the husband and the wife have the intent to contract. One such, relatively minor, custom is the “bedecken.” The purpose of the bedecken is to make sure that the husband is marrying the right woman, and the woman is marrying the right man. It is a sale device serving a contractual purpose; it confirms the bride and groom have accurately chosen to marry each other. Similarly, to avoid confusion as to who is getting married at a wedding, we have a strong preference that the bride and the groom wear different clothes from everybody else. They wear unique marriage clothing to make sure everybody knows this man is marrying this woman.

The recognition of marriage as a contract also allows for options that would be incomprehensible in status or emotional-based conception. In particular, Jewish law allows for a marriage to take place through a shaliach, an agent in Jewish law [44]. That is to say that if one gives a third party permission to find them a wife and enter into a marital contract, then they have full authority to effect a marriage even without my presence or involvement in the process whatsoever. This may seem striking, but it is entirely predictable in the world of contracts. If one were to give a third party $5 and ask them to enter into a contract to buy me strawberries at the grocery store, of course, that contract would work. At the moment the third party makes the purchase, the strawberries come under my domain. No additional involvement on my part is necessary whatsoever. Conceptually the rules of marriage through agency follow the general rules of agency.

Rabbinic marriage is contractual. It is contractual in concept, practice, and law. There is an interesting tension in this fact. Rabbinic Judaism is typically a highly formalized system especially when it comes to ritual. However, contracts do not lend themselves to strict law—freedom to contract implies a system in which the norms or “laws” can be contracted around.

Default Rules

Much of Rabbinic law on marriage is not law in the truest sense. The rabbis in the Talmud did not have a grand vision for many areas of marriage, instead, what they actually had was more of a series of default rules. Default rules are the tentative norms upon which contracts are assumed. Parties are free to nullify these default rules if they choose to do so explicitly. This ability to contract around these rules differentiates them from binding law. Instead, they are implicit contracts. Contract law necessitates these implicit assumptions. If we are in America and I offer to buy your watch for $1,000, the presumption is that I mean American dollars. If I explicitly made it clear that I was referring to a different type of currency, then we would be free to contract using that alternative currency. Nonetheless, we have a default rule: unless said otherwise, dollars refer to American dollars. This is a rule within our legal system and yet it is not accurately classified as a law. Law is typically understood to mean something that the parties cannot bypass by agreement. Instead, anything the parties can bypass by agreement is better called a default rule.

The Talmudic rabbis thought that most, but not all, of marital finance were a series of default rules, and that the parties agreed to them when they got married in the ketubah, the financial contract of marriage. The parties involved always had the option to change these defaults and contracts in a nonstandard way. Jewish law is robustly diverse. Does it require that a husband and a wife share their finances? No. It presumes that a husband and a wife will share their finances, but that is merely a presumption [45]. Parties can agree to do otherwise. It assumes that a husband and a wife will share a residence and the husband will support the wife in the residence, but it is just a presumption. It is not an agreement; if you do not reach any agreement, it is what Judaism says is the default rule. But couples can enter into a different rule. The husband can turn to the wife and say, “I would like to get married, and you will live in Cleveland, and I will live in Chicago; and I will have a house in Chicago and you will have a house in Cleveland, and we will get together every once in a while.” And the wife can say “I don't know,” or “I don't agree;” but it is important to understand that what the Jewish tradition does not mandate here is a firm agreement. Instead, there simply exists the presumption that husbands and wives share a residence, and the husband will pay for the residence. But this presumption is not a requirement of law. Rather, it is a default rule.

Default rules can be bypassed in one of two ways: you can either bypass that default rule by contract, or you can bypass that default rule by a course of agreement in conduct. So, if, at the moment the parties get married, the husband stays in Chicago and the wife stays in Cleveland, they've demonstrated that they had no interest in obeying the rule and instead they've created an alternative rule. And that the alternative rule is binding. The Jewish tradition lays out a series of default rules and these default rules exist, but they do not have to exist. They exist because the parties implicitly agreed to them.

This emphasis on mutual agreement can also create limitations on the parties’ rights. This reality is most clear from the rabbinic view of cohabitation. Marriage requires consent [46]. Thus, even if the two parties agree to all the typical stipulations of marriage that agreement of cohabitation does not suffice to be considered marriage unless the parties consent to it as such. There is, however, a more complicated discussion of how Judaism perceives marriage agreements between Jews in civil legal systems [47]. To understand this discussion, several principles in rabbinic law must be outlined. First, conjugal relations are a valid way of entering into a marriage in Jewish law [48]. Second, there is a presumption that witnesses to an act of seclusion are considered witnesses to an act of conjugal relations [49]. And lastly, we presume that a man will not be willing to recognize his act of sexual intimacy as illicit, which all non-marital relations are if he has an alternative [50]. Thus, the traditional understanding of the Talmud is that if a couple is seen to live together and thus presumed to be intimate, we must assume that they agreed to marriage in doing so [51]. However, it seems that these assumptions would not hold in modernity. In fact, the Rivash ruled that Jews married under Catholic law could not be considered married under Jewish law [52]. He explains that inasmuch as they have accepted Catholic law they have rejected the rabbinic system. Thus, there would be no reason to assume that the parties involved have any concern for avoiding what is considered illicit in rabbinic law. Rabbi Moshe Feinstein expands this logic to civil marriages of non-observant Jews [53]. This is the widely held opinion on the matter, but a prominent dissenter Rabbi Yosef Henkin argues that even if the parties have no commitment to rabbinic law, their entrance into a civil marriage signifies intent for a permanent monogamous relationship meaning that the intimacy between the two parties should be considered marital in nature [54]. What emerges from this is that even according to Rabbi Henkin there must be a meeting of the minds to establish a formal monogamous relationship, and for most authorities, this agreement must be an explicitly legal one to enter into the particular rabbinic marriage contract. Nonetheless, there is a clear sense of personal flexibility afforded by a system of default rules. The sense of flexibility allowed in the rabbinic system of marriage is not only true at the particular level of each individual contract but also from a societal perspective. These two freedoms are intrinsically linked. The parties are free to contract the marriage and divorce in the manner they consent to but if they do not do so they are assumed to agree with the societal norms of marriage. In this view default rules simply act as the codification of societal norms. As such they are somewhat free to evolve as society itself evolves. And the legal rules surrounding divorce have largely developed in this pattern following societal norms. This is somewhat atypical in the rabbinic system. Prayer has not evolved significantly in the Jewish tradition in two thousand years. Shabbat has only evolved significantly as technology has driven it to, but the non-technological aspects of Shabbat have not significantly evolved. We have adopted additional customs and practices for the Pesach seder, but, fundamentally, the seder of rabbinic scholar Moses Maimonides would be recognizably similar to the modern-day Seder.

Now there are some inflection points in which changing societal conditions cause major upheaval in more principled institutions like the Pesach Seder, namely the destruction of the Beis HaMikdash (The Holy Temple). In the time of the Beis HaMikdash, the seder was defined by its relation to the sacrificial Pascal offering. In this case, a societal reality made the offering of sacrifices impossible and forced the rabbinic system to adapt, while changes in divorce law require a much lower bar of societal pressure [55]. In the times of the Babylonian Talmud, Rav Ashi held that divorce was a unilateral right of the man that could only be triggered if the man were willing and able to afford the cost of divorce [56]. However roughly 700 years later, Moses Maimonides introduced a more bilateral conception of the right of divorce: namely that a wife can force divorce if she requests such and is willing to concede any financial obligations her husband would otherwise have to her [57]. Then roughly two hundred years later Rabbenu Tam constricted divorce solely to circumstances in which there is mutual agreement or terrible malfeasance [58]. Rabbenu Tam lived on the German side of the border, but, more importantly, Rabbenu Tam lived in a Catholic community; He describes these Catholics as “adukim” which roughly translates to “fundamentalists”. Thus, his restriction of marriage is unsurprising considering the complete restriction of marriage within Catholic law that defined that historical milieu. Then in the 1500s, the protestant reformation began a movement towards a liberalization of divorce and, concurrently in Tzfat, Rabbi Joseph Karo ruled that divorce was permissible unilaterally for the man and in cases of fault for the wife [59]. However, in a much more conservative Krakow, Rabbi Moshe Isserles, speaking for the Ashkenazim, limited fault to the most extreme of cases [60]. Throughout the history of divorce, the rabbinic “law” is indeterminate. When I ask you what the Jewish attitude toward divorce is, the correct answer is: it depends on where you are. It is not like the Jewish attitude towards Shabbat. Divorce in the time of Maimonides was vastly different from our process of divorce. It is fundamentally a flexible system shaped by the involved parties.

**The Ketubah as a Limit on Freedom to Contract **

Despite the malleability and personal freedom baked into the rabbinic system, rabbinic marriage is not maximally flexible. There are some contracts that parties are simply not free to make. These limitations can arise for two distinct reasons. In some cases, the marriage contract can be structured in such a way that it becomes fundamentally invalid. In other instances, the rabbis forbade certain marriage contracts as a matter of policy. Our discussion will be focused solely on the former category in the discussion of the ketubah obligation.

The ketubah in rabbinic law is roughly parallel to a modern-day prenuptial agreement. It outlines the financial obligations upon divorce between the two parties. The Ketubah is an absolute requirement for any marriage under rabbinic law. Yet, the authority for this requirement is not entirely clear. There is a fundamental disagreement in the Talmud as to whether the obligation to establish a ketubah is sourced in biblical law or as a rabbinical enactment [61]. In this debate, one of the most authoritative Talmudic scholars and Halakhic codifier, Moses Maimonides, seems to take a compromise stance. On the one hand, he explicitly says that the ketubah was instituted by the rabbis so that men would not treat their wives lightly in their eyes [62]. His assumption that it was instituted by the rabbis, not the bible, seems to imply that the authority of the ketubah is as a rabbinic enactment. Under this view, the ketubah seems to be a social provision out of concern for the well-being of wives as a matter of public policy. However, in Maimonides’s introduction to his legal codification of the laws of marriage, he establishes the biblical foundations of the laws of marriage. He claims that there is a biblical requirement to marry with both a ketubah and kiddushin (essentially a formal act of entering into the contract) [63]. Thus, in this instance, Maimonides implies that the ketubah is of biblical origin and fundamental to the process of marriage. Then in another work, Sefer Hamitzvot, he connects this requirement and prohibition from entering into marriage with a proper ketubah to the biblical prohibition that “No Israelite woman shall be a qedeshah” (Deuteronomy 23:18) [64]. The exact definition of qedashah is unclear. Typically, it is understood as prostitution but Maimonides claims that this prohibition applies to all extramarital affairs not just prostitution [65]. Maimonides possesses a much broader understanding of the concept of qedeshah than most authorities. In fact, according to Maimonides, even if the husband provides a ketubah but the monetary commitment does not meet the minimum requirement set out by the rabbis, then their relations are considered extramarital and seemingly are included in the violation of the prohibition of qedeshah [66].

Yet, it is unclear how a failure to meet the standards of the rabbinic ketubah could result in a violation of a biblical prohibition—typically the rabbis lack the authority to establish biblical prohibitions. However, in the case of marriage, the rabbis’ intervention was necessary to make sense of the biblical concept of marriage. The Hasam Sofer, who has a slightly different formulation than Maimonides, explains that the ketubah is a biblical law of which the rabbis were given the authority to define the parameters [67]. This defining of the parameters was a necessary intervention to distinguish marriage relations from the extramarital qedeshah. This problem of distinguishing is particularly acute for Maimonides who seems to have an expansive understanding of the prohibited non-marriage relationship of qedeshah. With this in mind, Rabbi Ahron Lichtenstein explains Maimondies’ position. [Maimonides] perhaps maintains that the concept of ketubah originates from the Torah, and in fact, the ketubah constitutes an integral part of the institution of marriage. After all, in the absence of a ketubah, the marriage lacks a sense of commitment, and the resultant relationship is nothing more than that of pilagshut [concubine]. Marriage requires a husband's commitment to his wife, a commitment that expresses itself through the obligations he assumes in the ketubah [68].

It is not that the ketubah itself is fundamental to marriage. However, once the Rabbis instituted the ketubah as a standard practice, a failure to meet this standard reveals a lack of commitment on the part of the husband. Thus, any marriage agreement lacking a ketubah in as much as it is not an agreement of commitment must be considered to be a contract of pilagshut, not marriage, and thus an instance of qedeshah and, as such, cannot be entered into. It must be noted that the distinction between marriage and pilagshut is rather thin. All that is required is financial commitment. Under Maimonides formulation, if that stipulation was met, the two parties could agree to a marriage only lasting for 3 months [69]. However, we can look to Saadia Gaon for a slightly stronger distinction between marriage types. Similar to Maimonides, Saadia Gaon interprets the prohibition of qedeshah quite expansively. “The first category is a marriage for a limited period, for a woman who agrees to the marriage is called a qedeshah… it is a marriage with a ketubah and witnesses and kiddushin” [70)] Seemingly, the reason for such a strong formulation of Saadia Gaon, and potentially Maimonides as well, was reactionary. At the time, muta marriages were common in Shite Islam, marriages in which a wife was designated for a particular period of time. Saadia Gaon makes this connection explicit by translating qedeshah to muta in his commentary on the Torah. Furthermore, it is possible that this stance was in reaction to internal Jewish practice as well as external society. In the Babylonian Talmud there is an instance in which prominent Rabbis upon entering a new city for a temporary stay proclaim, “Who will be mine for a day?” [71]. The interpretation of the story is much debated, and it is possible that this declaration was entirely rhetorical or political. However, scholar Yehezkel Margalit takes the plain meaning of the text and suggests that both the practice found in the Talmud and that of Muta marriages in Shite Islamic culture have shared origins in the broader Persian culture [72]. In particular, the practice of “a gift to be returned” was common practice in the Persian era. Thus, the betrothal of a wife could similarly be viewed as a gift to be returned [73]. This interpretation requires the conclusion of rabbinic acceptance of this practice given the fact that the only objections given to the story in the Talmud are technical in nature [74]. However, it is clear that Saadia Gaon, and likely Maimonides, condemn this practice. For each of them, marriage is a contract with a distinct character that cannot be confused with Pilagshut. For Maimonides, that character is a financial obligation, and for Saadia Gaon, it is also a temporal commitment.

In either formulation, rabbinic marriage provides a model in which contract type must be distinguished. We cannot permit an agreement between husband and wife as marriage if their agreement is more aptly called a pilagshut. Marriage is a particular type of agreement and must be treated as such. This is in a way a subversion of the status contract debate. Marriage itself may not be a status, but as a contract, it takes on a distinct status. Parties are free to contract their private agreement however they like. However, only certain contracts will be appropriately tailored such that they obtain the status of a marriage contract.

A sharp distinction between contract types can be found in American contract law as well. In fact, the distinction between bilateral and unilateral contracts is seen as a fundamental principle of contract law worthy of inclusion in the first-year curriculum. This distinction often has substantive implications as in the case of Davis v Jacoby [75]. Davis v. Jacoby was exactly an argument of contract type between unilateral and bilateral contracts. In its majority, the California Supreme Court quoted section 12 of the American Institute's Restatement of the Law of Contracts to explain this distinction: "A unilateral contract is one in which no promisor receives a promise as consideration for his promise. A bilateral contract is one in which there are mutual promises between two parties to the contract; each party being both a promisor and a promisee" [76]. Thus, a bilateral contract requires a higher level of obligation between the two parties. If the parties exclude that particular obligation of mutual promise within the structure of their agreement, their agreement ceases to be a bilateral contract and falls to the level of a unilateral contract. Marriage can be understood in a parallel manner.

One may object to this comparison on the grounds that the unilateral bilateral distinction is merely descriptive. Take the classic unilateral example of the flagpole: “I will pay you if you climb up this flagpole.” If a cunning promise were to respond with a counteroffer: “How about you agree to pay me for acceptance of your challenge to climb up the flagpole, and I will promise to climb up the flagpole.” This counteroffer would change the agreement from a unilateral to a bilateral contract but outside of the direct implication of the contract’s reformulation, this difference would seemingly be trivial. On the other hand, the title of marriage is in itself significant—both culturally and legally. However, contract-type distinctions can never be considered trivial. On another case in which the question of the unilateral contract was addressed, Brackenbury v Hodges, Professor Authur Corbin emphasized that the court’s decision on the contract types is a determination of the legal relation between the contracting parties [77, 78]. Thus, differing contract types represent fundamentally different ways in which parties relate to each other. In this lens the distinction between marriage and cohabitation is even clearer—marriage is a relationship defined by commitment while cohabitation is not. To give a parrel hypothetical to the flagpole case. Say one offers a deal to their girlfriend “to be my spouse, to have and to hold from this day forward, for better, for worse, for richer, for poorer, in sickness and in health, to love and to cherish, until parted by death.” She, fearing commitment, counters: “to be my spouse for the time being.” These are fundamentally different relationships at hand not just emotionally but also in terms of the legal obligations implied. Marriage implies a higher level of obligations than a mere agreement to cohabitate. If the parties exclude the particular obligations of marriage within the structure of their agreement, their agreement ceases to be considered marriage and instead must be viewed as cohabitation.

Another illustration may help explain this distinction. You envision two types of restaurants, each with a salad bar that allows complete freedom to the customer. The first restaurant has a set menu, with one of those options being a freer ‘choose your own,’ while the second restaurant simply instructs customers to build their own salad. In the first restaurant, if you ask for a Caesar salad but choose to substitute the ranch for balsamic and the lettuce for noodles, you have ordered a pasta salad, not a Caesar salad. In the second restaurant, there is no distinction between the two. The suggestion in this paper is to structure marriage like the first restaurant with a menu, and this concept of a contractual menu already exists: in a somewhat different context, Professor Ayres explains that a “menu is a contractual offer that empowers the offeree to accept more than one type of contract” [79]. Again, this type of distinction exists in the contract law as constructed and should be recognized in the realm of marriage. If the customers substitute the meat of marriage for the portobello mushroom of cohabitation, then they are no longer ordering a marriage.

The paper takes no definitive stance on what exactly the meat of marriage is, just that it exists. The rabbis suggest that it is, in part, a financial commitment, but that need not be the case in the American system. This is simply an argument regarding the possibility of regulation. There exists a mechanism to regulate by way of definition distinctions between marriage and cohabitation. Further research and policy are required to outline the exact obligations stemming from that definition, but room is carved out for that possibility.

Marriage as a Particular Contract Type

A somewhat parallel discussion took place in the early 2000s regarding the conscription of cohabitation. In light of the increasing precedent of an understanding of marriage as a relational contract, some argued that cohabitors should be considered married by the government even without their consent [80, 81]. There was strong pushback based on the necessity of a distinction between marriage and cohabitation. Scholars argued that marriage and cohabitation are functionally different and must be treated as such [82]. Similarly, there was a push for a pluralistic conception of family law “which treats and designs marriage and cohabitation as two equally respected options and yet distinguishes their regulation” [83]. The benefits of cohabitation as a legitimate alternative on a menu of options force a discussion between parties, and thus the decision to choose marriage becomes a more powerful signal [84]. And while this paper is in full-hearted agreement with the conclusions, their arguments fell short. There was an assumption that: While marriage law retains its emphasis on role-based commitment as a source of obligation, the marriage contract has become more variable. Marriage partners may now individually negotiate with respect to their property rights and, to a lesser but still significant extent, their support obligations. A handful of jurisdictions have even empowered prospective marriage partners to vary the grounds for divorce. These developments do not diminish marriage law's emphasis on commitment as a source of obligation but instead enhance it; today, one spouse's marital commitment may represent an exchange for the other's willingness to forgo the typical benefits of marriage or, conversely, to assume enhanced marital obligations [85]. It is hard to understand why this is true. A willingness to forgo rights and responsibilities in no way signals a commitment to a particular role. Rather it undermines the role. The distinction between marriage and cohabitation cannot simply be a label decided by the involved parties. To return to the restaurant analogy: if I order a steak and the waiter brings out salmon, I did not get what I ordered. Even if we both agree that what I was served was a steak, mutual consent is not enough to change the reality—I was not served a steak. To accept the salmon as a steak is a mistake and a subversion of that title. So too, to call a relationship lacking long-term commitment marriage is as much of a subversion of the institution of marriage.

In a truly pluralistic menu of options like that suggested by Lifshitz, it is fair to ask the value of such a distinction. If substantial rights and protections are afforded to both contracts, should parties even care if they enter into a marriage or cohabitation? Dagan and French suggest that a distinct character of marriage is important for facilitative and expressive purposes. Dagan and French simply suggest a restructuring of default rules but the same logic should apply, arguably to a greater extent, in the case of contract menus [86]. Firstly, when faced with a choice between marriage as typically conceived or explicitly contracting an alternative contract type, parties are forced to clarify the conception of their relationship. For parties to choose cohabitation over traditional marriage requires both parties' mutual consent to opt out. There is no room for confusion as to the nature of the relationship [87]. Additionally, the legal structure of marriage cannot be considered neutral in terms of the ideals expressed. As Dagan and French put it, “the material consequences of marriage reflect the lessons the law is trying to teach” [88]. There is a broader question as to Law’s influence on culture. However, it is clear that if the law is to ever take a stance on culture, marriage as a center of public awareness is as good of a place as any [89].

Conclusion

American marriage has undergone a massive upheaval in the past century, both legally and culturally. As illustrated by the agunah problem, this development cannot be viewed as a purely positive sense of progress or an entirely negative decay. It is a change that must be grappled with. The rabbinic model will help do such.

However, if the readers are looking for a proposal that will “save” the institution of marriage, they must be sorely disappointed. Law will not and cannot be the sole driver of societal change. Change must come in the classroom and around the dinner table. That is not to say that legal change is trivial or unnecessary. If a single lesson is to be taken from rabbinic Judaism in this context, it is that law is a most powerful teacher. In fact, according to Maimonides each and every law “serves to inculcate some truth, to remove some erroneous opinion, to establish proper relations in society, to diminish evil, to train in good manners or to warn against bad habits” [90]. Thus, a legal system that treats marriage as a mere contract will encourage its citizens to treat marriage as a mere contract. People will dream of marriage in the same way they dream of the cable contract. That is to say not at all. Contracts are pragmatic relationships of quid pro quo—marriages will soon become the same if they are not already. Conversely, elevating marriage to a unique type of contract highlights its unique character. It is, in fact, something different from any type of transactional relationship. It is a relation of commitment and must be treated as such.

Sources:

[1] Halley, Janet E., Behind the Law of Marriage (I): From Status/Contract to the Marriage System, 6 Unbound: Harvard Journal of the Legal Left, 2 (2010).

[2] Ibid

[3] Judith C. Areen, Uncovering the Reformation Roots of American Marriage and Divorce Law, 26 YJLF, 30, 54 (2014).

[4] Ibid, 63.

[5] Maynard v. Hill, 125 U.S. 190 (1888).

[6] Section 30-108, District of Columbia Code 1967 Ed: Cumulative supplement

[7] Graham v. Graham, 33 F. Supp. 936 (E.D. Mich. 1940).

[8] Broyde, Michael J. “” Essay. In Marriage, Divorce, and the Abandoned Wife in Jewish Law: A Conceptual Understanding of the Agunah Problems in America. Hoboken, NJ: KTAV, 2001. Citing American Jurisprudence

[9] Rabbi Bezalel Ashkenazi, Shitah Mekubetzet, Ketubot 3a.

[10] Jimmy Carter, An Hour before Daylight (New York: Simon & Schuster, 2001), 252-253.

[11] Sir William Blackstone, Commentaries on the Laws of England, Book the First: Chapter the Fifteenth: Of Husband and Wife. 4 vols (Oxford: Printed at the Clarendon Press, 1765–1769).

[12] Hazem Alshaikhmubarak, R. Richard Geddes, Shoshana Amyra Grossbard; Single Motherhood and the Abolition of Coverture in the United States, CESifo Working Paper No. 6471, 5 (2017).

[13] Peter T. Leeson, Joshua Pierson; Prenups, 45 JLS, 367 (2016).

[14] Robin Bradley Kar, Against Marriage Essentialism: A Legal Grounding for Obergefell and Same-Sex Marriage, 2016 University of Illinois Law Review 1581, 1587 (2016).

[15] Shaakirrah R. Sanders, The Cyclical Nature of Divorce, 50 Loyola Law Rev., 407, 413-415 (2004).

[16] Judith C. Areen, Uncovering the Reformation Roots of American Marriage and Divorce Law, 26 YJLF, 29, 67 (2014).

[17] Goodheart, Adam. “Divorce, Antebellum Style.” The New York Times, March 18, 2011. https://archive.nytimes.com/opinionator.blogs.nytimes.com/2011/03/18/divorce-antebellum-style/.

[18] Stanton, Elizabeth Cady. Elizabeth Cady Stanton Papers: Speeches and Writings, -1902; Speeches; 1861; 8 Feb., address on divorce bill before the Judiciary Committee, New York State Senate. 1861. Manuscript/Mixed Material.

[19] Ann Laquer Estin, Family Law Federalism, 16 Wm. & Mary Bill Rts. J, 381, 404 (2007).

[20] Ibid.

[21] Eliza K. Pavalko and Glen H. Elder, Jr; World War II and Divorce: A Life-Course Perspective, 95 Am. J. Sociol., 1213, 1214 (1990).

[22] Wilcox, W. Bradford. “The Evolution of Divorce.” National Affairs, 2009.

[23] Ibid.

[24] Loving v. Virginia, 388 U.S. 1 (1967)

[25] Ibid.

[26] Bostic v. Schaefer, No. 14-1167 (4th Cir. 2014).

[27] Obergefell v. Hodges, 576 U.S. 644 (2015).

[28] Ibid.

[29] Yerís Mayol-García, Benjamin Gurrentz, and Rose M. Kreider; Number, Timing, and Duration of Marriages and Divorces: 2016, U.S. Census Bureau, 2 (2021).

[30] David C. Ribar, Why Marriage Matters for Child Wellbeing, 25 The Future of Children Princeton-Brookings, 11-29, 11 (2015).

[31] Rabbi Haim Jachter, A Stunning Statistic About the Orthodox Community, The Jewish Link (2017)

[32] It should be noted that the role of witnesses in marriage is somewhat distinct from a typical witness in contract law. In addition to their role in confirming the fact of agreement, they also establish the contract. Without witnesses, no marriage agreement could ever exist.

[33] Gittin 90a.

[34] Ibid.

[35] Maimonides, Mishneh Torah, Laws of Divorce 11:14.

[36] It should be noted that there are several slightly more permissive reads of Beis Shammai but nonetheless there is a consensus that divorce is only proper when the marriage has been directly undermined.

[37] Rashi, Gittin 90a.

[38] Rabbi Yaakov ben Raash, Tur, Even HaEzer 119.

[39] Rabbi Hezekiah da Silva, Pri Hadash on Even HaEzer 119.

[40] Deuteronomy 24:1.

[41] Gittin 90a.

[42] Rabbi Jacob Joshua Falk, Penei Yehoshua on Gittin 90a.

[43] Eruvin 13b.

[44] Kiddushin 41a.

[45] See Rabbi Chaim Jachter, Gray Matter, Marital Finances in Light of Contemporary Arrangements who quoting the Chazon Ish (Likuttim C.M. 16:1) “the law of the land determines the intentions” and according to Rabbi Dichovsky this principle is extended to change the status of financial partnerships in marriage. Thus, the default rules depend on societal custom, but individuals have the authority to stipulate otherwise.

[46] Rabbi Yosef Kairo, Shulchan Aruch, Even Ha'ezer 42:1.

[47] See Rabbi Chaim Jachter, Gray Matter, Non Orthodox Marriages, The Halachic Status of Civil Marriages for a more in-depth discussion of the status of civil marriages in Jewish law.

[48] Kiddushin 2a.

[49] Gittin 81a.

[50] Ibid.

[51] Ibid.

[52] Rabbi Isaac ben Sheshet, Teshuvot HaRivash #6. This ruling is then accepted by the Shulchan Aruch (Even Ha'ezer 149:6) and the Rama (E.H. 26:1)

[53] Rav Moshe Feinstein, Teshuvot Igrot Moshe, Even Ha'ezer #75.

[54] Rabbi Yosef Eliyahu Henkin, Perushei Ibra, Chapters 3-5.

[55] The pascal offering can only be brought in the Beis haMikdash.

[56] Gittin 29b.

[57] Maimonides, Mishneh Torah, Hilchot Ishut, 14:8.

[58] Broyde, Michael J. “Chapter Two: Paradigms for Marriage as Grounds for Divorce in the Jewish Law Tradition: An Historical Review.” Essay. In Marriage, Divorce, and the Abandoned Wife in Jewish Law: A Conceptual Understanding of the Agunah Problems in America. Hoboken, NJ: KTAV, 2001. Citing Tosafot, Ketubot 63a s.v. aval; Shulchan Aruch.

[59] Ibid. Citing Shulchan Aruch, Even ha-Ezer 77:2.

[60] Ibid. Citing The Rema on Shulchan Aruch, Even ha-Ezer 77:2

[61] Ketubot 56a.

[62] Moses Maimonides, Mishneh Torah, Hilchot Ishut 10:7.

[63] Moses Maimonides, Mishneh Torah, Introduction.

[64] Moses Maimonides, Sefer Hamitzvot, Negative Commandments, Mitzvah 355.

[65] Moses Maimonides, Mishneh Torah, Hilchot Ishut 1:4.

[66] Moses Maimonides, Mishneh Torah, Hilchot Ishut 10:9.

[67] Rabbi Moses Schreiber, Hasam Sofer, Ketubot 10a.

[68] Kahn, Yair. “The Biblical or Rabbinic Origins of Ketuba.” The Biblical or Rabbinic Origins of Ketuba | Yeshivat Har Etzion, January 29, 2015. https://etzion.org.il/en/talmud/seder-nashim/massekhet-ketubot/biblical-or-rabbinic-origins-ketuba.

[69] Maimonides twice states in his Misneh Torah that one should not marry a woman with intent to divorce (once in Hilchot Gerushin 10:21 and again in Hilchot Issurei Biah 22:28). However in Hilchot Issurei Biah there is an added qualification that “If he notifies her at the outset that he is marrying her only for a limited time, it is permitted.” Based on the teachings of Rabbi Menachem Mendel Schneerson, Sholom Wineberg makes a fundamental distinction between the two teachings. The prohibition in Hilchot Issurei Biah is a prohibition against deception. Consent is a necessary aspect of contracting. Thus, deception in contracting is prohibited and prevents the marriage from taking place. Under this framework, an explicit carve-out is effectual. However, Hilchot Gerushin allows for no such carve-out because it is not addressing the prohibition of deception. In fact, it is not addressing a formal prohibition whatsoever. The language of “forbidden to marry” found is Hilchot Issurei Biah is replaced with “Do not marry” in Hilchot Gerushin. The unqualified rule of Hilchot Gerushin is simply one of good advice; Even with full consent, a temporary marriage is still flawed. Although temporary marriages meet the formal definitions of commitment, it is certainly not an ideal form of commitment. The formal law is simply the floor of what is necessary for marriage, yet Maimonides still codifies in Hilchot Gerushin the aspiration view of what marriage should be. Seemingly the formal law is not enough. In addition to the formal law, society must be oriented to strive for extralegal aspirations. (See Sholom B. Wineberg, The Jewish Home Volume 2 - Married Life, Shalom Bayis, Divorce of Husband and Wife (2014) for further discussion).

[70] Moshe Zucker, Al Tirgum Rasag La-Torah: Parshanut Halakha U-Politika Be-Tirgum Ha-Torah Shel Rabbi Sadya Gaon: Te’udot U-Mehkarim {On the commentary of Saadya Gaon to the Torah] 477–78 (1959). For source of translation, see note 72.

[71] Yoma 18b, Yevamot 37b

[72] Yehezkel Margalit, Temporary Marriage, 33 J.L. & Relig., 89, 103-106 (2018).

[73] Ibid.

[74] Ibid.

[75] Davis v. Jacoby, 1 Cal.2d 370, 34 P.2d 1026 (Cal. 1934).

[76] Ibid.

[77] Corbin, Arthur, The Formation of a Unilateral Contract, 27 Yale L. J. 362, 365 (1918).

[78] Although notably he recognizes that this formulation may be “a further step in the development away from contract back to status” (79) Ayres, Ian, Menus Matter, 73 The University of Chicago Law Review, 3 (2006).

[80] Elizabeth S. Scott & Robert E. Scott, Marriage as Relational Contract, 84 VA. L. REV. 1225 (1998).

[81] Elizabeth S. Scott, Marriage, Cohabitation and Collective Responsibility for Dependency, U. CHI. LEGAL F. 225, 258-61 (2004).

[82] Marsha Garrison, Is Consent Necessary? An Evaluation of the Emerging Law of Cohabitant Obligation, 52 UCLA L. REV. 815, 815 (2005).

[83] Shahar Lifshitz, Married Against Their Will? Toward a Pluralist Regulation of Spousal Relationships, 66 WASH. & LEE L. REV 1565, 1590 (2009).

[84] Ibid.

[85] See Garrison, supra note 87, at 825.

[86] Ayres, Ian, Menus Matter, 73 The University of Chicago Law Review, 3 (2006).

[87] Carolynj Frantz and Hanoch Dagan, Properties of Marriage, 104 Colum. L. Rev., 76, 96-98 (2004).

[88] Ibid.

[89] Ibid.

[90] Moses Maimonides, Guide for the Perplexed, 3:31.