Thinking Outside the Chains: Better Jewish Ways to Enter Committed Relationships in Marriage:

Alternatives to kinyan and kiddushin, applied from other areas of rabbinic law:

--Rabbi Dr. Rachel Adler: Brit Ahuvim: A Lovers’ Covenant

Kinyan Trouble: The Lore of the Rings

Kinyan, or symbolic acquisition of the partnership, is the third traditional element of partnership law embodied in the b’rit ahuvim, and it is fraught with difficulties. For reasons I will explain presently, it is essential to demonstrate that the couple intends to form a b’rit ahuvim and not to contract kiddushin. Hence it is necessary to be particularly clear about the language and gestures surrounding the transaction that establishes the relationship. Two classic tokens of kinyan in particular are sufficiently identified with kiddushin that their use in ratifying the b’rit transaction could create confusion about the nature of the relationship. The most troubling of these is the giving of the wedding ring, a universal symbol of espousal in Western cultures. In kiddushin, the woman’s acceptance of a ring from the man signifies that she consents to be purchased symbolically from herself by him. There is reason to be concerned, therefore, that giving and accepting a ring in the context of a wedding ceremony could be taken as evidence that, despite the lack of any supporting declaration, the couple actually intended kiddushin.

The wedding ring is not just a minor detail of the ceremony; metonymically, it represents the whole affair. Is a ceremony without rings likely to be as convincing as a performative ritual should be? Will the participants feel married? Will the wedding guests leap up and shout “mazel tov!” or will they shrug and remind one another that it’s a free country? The wedding ring’s power as a signifier is a good example of the points discussed in Chapter 3: ritual is profoundly conservative, and it is compelling in ways that cold reason can neither account for nor refute. It seems unlikely that most people will relinquish the ritual of giving wedding rings. Is there a way to include rings while avoiding both the possible confusion with classical kiddushin and the tit-for-tat commodification implicit in double-ring adaptations of kiddushin? I will propose several possible solutions to this problem shortly.

The other indicator of kinyan I have rejected is kinyan sudar, the exchange of the handkerchief. Although it became the common mode of ratification in later partnership law, kinyan sudar is also the means by which the bridegroom acquires the ketubbah from the officiant of the wedding. Even though in traditional ceremonies the bride does not engage in kinyan sudar, I have ruled out adapting this ritual for both partners in the b’rit ahuvim, lest this ritual’s traditional associations with the ketubbah mislead anyone into mistaking the b’rit document for a “creative” ketubbah that both the bride and groom are acquiring. The distinction between these two documents is crucial. The b’rit document is one of the elements that effectuates a partnership of equals.

A ketubbah, on the other hand, does not effectuate kiddushin. That is accomplished by the husband’s statement “Behold you are sanctified to me” (exclusively acquired by me) and by his giving and her accepting the ring. Only then does the wife acquire the ketubbah, for its function is to moderate the husband’s power over his acquisition. The content of the ketubbah thus details entitlements and duties, protects the wife’s position in the household by making it expensive for the husband to divorce her, and ensures her some degree of economic security in the event of his demise or her divorce.

Even if kinyan sudar did not leave the b’rit document open to misinterpretation, it would still be unacceptable because it is aesthetically unappealing. It smells of the marketplace. Among Orthodox Jews, it remains to this day a common means of ratifying all sorts of financial transactions.

There is, however, as I have said, a form of kinyan that was used in ancient times exclusively for partnership acquisition: symbolically pooling resources in a bag and lifting it together. This gesture could not possibly be mistaken for an acquisition of kiddushin. Moreover, like the b’rit document and its stipulations, this ritual for acquiring pooled resources is another adaptable, expressive element of the ceremony: After the b’rit document has been read aloud and signed by the partners and by two witnesses, each partner places an object of some value in a bag provided for this purpose, perhaps specially designed or decorated. These may be objects that are especially eloquent of their owners’ personalities: a musical instrument, a much-consulted book, a legacy from a beloved relative or teacher. Partners may choose to explain the objects’ significance and the particular contribution to the relationship they represent. This ritual can also provide a solution to the ring dilemma. Along with these chosen objects, or instead of them, each partner may put the other’s wedding ring into the bag. In this way, the rings are acquired specifically as tokens of partnership. When the partners lift the bag together, they make a blessing, using their preferred berakhah formula as discussed in Chapter 3: “Blessed are you…who remember your covenant and is faithful to your covenant and keeps your word.” This is the traditional blessing upon seeing a rainbow, and its content seems particularly appropriate to express the hope that a trustworthy covenant has been sealed. […]

Dissolving the B’rit Ahuvim

The b’rit ahuvim reflects but does not duplicate the divine covenant-marriage. Neither of its participants is the divine partner who can heal the wounds of history. For human marriage, some wounds are fatal. Marriage begins with the celebration of humanity’s divine image in the bridal blessings. It is appropriate that it end by honoring that divine image in the ways that the partners are helped to dissolve the partnership justly and generously.

The ancient Jewish community of Elephantine made divorce a public matter. The man or woman first had to announce before the congregation his or her intent to divorce. In contrast, halakhic divorces exclude the community; they usually occur in a rabbi’s study with only the rabbinical court and its designated witnesses and scribe in attendance. These participants are technicians, expert in the mechanics of divorce. The couple’s spiritual condition is not of concern to them because it does not affect the legal validity of the divorce. But the dissolution of b’rit ahuvim should be different. It should reflect that a covenant, not merely a contract, has failed. The community must not distance itself from those who have experienced this catastrophe. Representatives from the couple’s religious environment, or perhaps a minyan similar to a shivah minyan, should be present to comfort the separating partners, much as a shivah minyan bears witness to a death and comforts the bereaved. Similarly, the dissolution of b’rit might even be followed by a day of mourning, at which friends and family can support and console the two partners as shivah visitors do, listening to the mourner or just being quiet together.

Like the business partnerships that provide its contractual structure, the b’rit ahuvim may be dissolved at the initiative of either partner. This procedure should be conducted by a court of three learned Jews. If the couple has difficulty dividing their material assets or coming to agreements about custody, support, visitation, and education of children, they should resolve these matters before the final dissolution with the help of a professional mediator or a lay arbitration court of three, one arbitrator chosen by each partner and the third chosen by agreement of the other two. At the dissolution proceeding itself, the court should draw up a document in Hebrew, also translated into the vernacular, attesting to the termination of the b’rit ahuvim, the distribution of its assets, and arrangements for any continuing obligations. The document should be signed by two witnesses.

B’rit ahuvim, then, both is and is not a marriage. On the one hand, it formalizes a relationship between two lovers pledged to fidelity. Like any marriage agreement, it may be licensed and registered and thus recognized by the state, although at this writing that option is not yet available to gay and lesbian couples. But b’rit ahuvim does not meet the requirements for marriage under classical halakhah, because one party does not acquire the other in the ceremony, nor is the couple’s subsequent sexual intercourse meant to effect the woman’s acquisition. While the b’rit contractors intend an enduring, monogamous relationship, they reject the power imbalance that characterizes kiddushin in favor of shared power and consensual decision making about all aspects of the relationship, including its inauguration and, if required, its termination. This point is essential to establish because, as I will show, there are some halakhists who would classify any lasting intimate relationship as a de facto kiddushin. And because any kiddushin requires a get, a halakhic divorce, for its termination, it is important to establish that b’rit ahuvim is not equivalent to kiddushin. For if b’rit ahuvim is not a halakhic marriage, then it can be dissolved without a get. […]

B’rit Ahuvim Lovers’ Covenant

On _____ (day of week) the _____ day of _____ (month), 57 _____, according to Jewish reckoning (_____ month _____ day _____year, according to secular reckoning), in the city of _____, (state or region), _____ (country), _____ (Hebrew name) daughter/son of _____ and _____ whose surname is _____ and _____ (Hebrew name) daughter/son of _____ and _____ whose surname is _____ confirm in the presence of witnesses a lovers’ covenant between them and declare a partnership to establish a household among the people of Israel.

The agreement into which _____ and _____ are entering is a holy covenant like the ancient covenants of our people, made in faithfulness and peace to stand forever. It is a covenant of protection and hope like the covenant God swore to Noah and his descendants, saying

“When the bow is in the clouds, I will see it and remember the everlasting covenant between God and all living creatures, all flesh that is on earth. That,” God said to Noah, “shall be the sign of the covenant that I have established between me and all flesh” (Gen. 9:16–17).

It is a covenant of distinction, like the covenant God made with Israel, saying

You shall be My people, and I shall be your God (Jer. 30:22).

It is a covenant of devotion, joining hearts like the covenant David and Jonathan made, as it is said,

And Jonathan’s soul was bound up with the soul of David. Jonathan made a covenant with David because he loved him as himself (1 Sam. 18:1–3).

It is a covenant of mutual lovingkindness like the wedding covenant between God and Zion, as it is said,

I will espouse you forever. I will espouse you with righteousness and justice and lovingkindness and compassion. I will espouse you in faithfulness and you shall know God (Hos. 2:21–22).

Provisions of the Covenant

The following are the provisions of the lovers’ covenant into which _____ (Hebrew name) daughter/son of _____ and _____ and _____ (Hebrew name) daughter/son of _____ and _____ now enter:

1. _____ and _____ declare that they have chosen each other as companions, as our rabbis teach:

Get yourself a companion. This teaches that a person should get a companion, to eat with, to drink with, to study Bible with, to study Mishnah with, to sleep with, to confide all one’s secrets, secrets of Torah and secrets of worldly things. (Avot D’Rabbi Natan 8)

2. _____ and _____ declare that they are setting themselves apart for each other and will take no other lover.

3. _____ and _____ hereby assume all the rights and obligations that apply to family members: to attend, care, and provide for one another [and for any children with which they may be blessed] [and for _____ _____ child/children of _____].

4. _____ and _____ commit themselves to a life of kindness and righteousness as a Jewish family and to work together toward the communal task of mending the world.

5. _____ and _____ pledge that one will help the other at the time of dying, by carrying out the last rational requests of the dying partner, protecting him/her from indignity or abandonment and by tender, faithful presence with the beloved until the end, fulfilling what has been written:

Set me as a seal upon your arm, for love is stronger than death. (Song of Songs 8:6)

To this covenant we affix our signatures.

The partners:

__________________________________________________________________________________

Witnessed this day the _____ day of Parashat _____ (Hebrew date).

The witnesses: