Egalitarian Ketubah

Found In: Sanctifying Intimate Relationships, Weddings & Commitment Ceremonies

Tags: ketubah

By Rabbi Gordon Tucker | Document

On the ______ day of the week, the ______ day of the month_______ in the year 57__, as we are accustomed to reckon it here, in _______,_____ , we hereby testify that the groom_________ said to the bride____________"You are consecrated to me as my wife,with this ring, according to the laws of Moses and Israel", and that the bride__________ said to the groom "You are consecrated to me as my husband with this ring, according to the laws of Moses and Israel". The groom_______ and the bride________ accepted all the conditions of betrothal and marriage as set forth by biblical law and by the rulings of the Sages of blessed memory. The groom and bride further agreed willingly to work for one another, to honor, support, and nurture one another, to live with one another, and to build together a household of integrity as befits members of the Jewish people. The bride accepted a ring from the groom, and the groom accepted a ring from the bride, for the purposes of creating this marriage and to symbolize their love. The groom and bride also accepted full legal responsibility for the obligations herein taken on, as well as for the various property entering the marriage from their respective homes and families, and agreed that the obligations in this Ketubah may be satisfied even from movable property. We have had both the groom and the bride formally acquire these obligations to the other, with an instrument fit for such purposes. Thus all is in order and in force.

 

Signed: _________________ (witness)

Signed: _________________ (witness)

A Brief Commentary to the Above Ketubah

With respect to the omission of the explicit monetary provisions, and sufficing with a reference to the obligations that obtain, one should note that the only elements of the Ketubah which are obligatory are the mohar and the lien which it engenders. The lien (achrayot) is explicitly stated in this text, and the mohar is referenced. Even Haezer 69:1-2,6 make it clear that the obligation is independent of the exact wording of the Ketubah, and since this does nothing to contradict that, there can be no objection on this front.

As for the mutuality of the obligations (I'm not now speaking of the Qiddushin formula itself), it is worth looking at Ze'ev Falk's short note in the Journal of Jewish Studies 1957, pp. 215ff, and Mordecai Friedman's dissertation on the Palestinian Ketubot, pp. 67 and 74. Such mutual wording is not unprecedented, though the existence of some precedent along these lines is not by itself sufficient to compel the adoption of mutual wording today. Contemporary understandings and practices of marriage are far more important in this respect.

Now, the stickiest issue is the Qiddushin formula, though it is not, strictly speaking, a potential problem with the Ketubah. For one thing, this Ketubah could perfectly well be modified so as to eliminate the bride's declaration to the groom, if the couple chooses not to have symmetrical declarations. Moreover, the Ketubah is independent of Qiddushin, and in it the witnesses are merely testifying as to what they heard. But what about the validity of the Qiddushin act itself, under the Huppah, when the bride says harey atah m'kudesh li (behold, you are betrothed to me)? Here, I would call attention to Even Haezer 27. Paragraph 1, for example, makes it clear that one of the important determinants about what counts as a valid Qiddushin formula is what the parties understand by the language used, and what the local usage is. Moreover, paragraphs 6-7 make it further clear that a critical issue is whether the language is active or passive. Active is normative. Passive is invalid. Indeed, the Baraita in Qiddushin 5b does not mention the language harey atah m'kudesh li but rather discusses the case where the woman says hareni m'kudeshet lecha. The problem with that is not necessarily that the woman is saying it, but rather that the language is passive. The Rambam says as much (in Hilchot Ishut 3:1-2), where he notes that the problem is that it is lashon hakna'a i.e. passive language. In that entire chapter, the Rambam never considers the possibility of the woman saying harey atah m'kudesh li. Undoubtedly, it wasn't an issue for the Rambam, or for the Baraita, because that simply wasn't what anyone understood by marriage. This is further underscored by the Tosafot in Qiddushin 4b. There the Tosafot express some consternation that Rashi (in a formulation that differs from our own text of Rashi) would have interpreted the Gemara's disqualification of Qiddushin declared by the woman to mean the hypothetical case of a woman saying harey atah m'kudesh li. According to the Tosafot, that's an impossible understanding of the Gemara because it's absurd. It simply doesn't apply to marriage as they knew it. The Tosafot make the point that the Gemara must have been disqualifying the passive language of harey ani m'kdushet lecha, and then when it is meant as a replacement for the usual declaration of the male. [A further interesting point is that the compilers of the Piskei Tosfot did not list this dismissal of harey atah m'kudesh li as a ruling of law, for it was no such thing. It was merely a critique of Rashi's understanding of the text based on the patent meaninglessness (in the time of the Gemara) of the phrase]. Now our understanding of marriage, a millennium after Rabbenu Gershom, and given the pervasive mutuality in our culture concerning marriage, is such that active language on the part of the woman is anything but absurd, and thus can be part of a marriage formula in which the groom's parallel (and traditional) declaration is not displaced. Given all of this, and the fact that there is no doubt (given that the caterer has been paid, etc.) what everyone is up to (that is, the condition of "speaking with her about matters of kiddushin" is more than met) one can only conclude that this additional active declaration cannot invalidate the marriage. Anyone who feels otherwise should have the burden of proof.

Finally, one might note Even Haezer 27:8 in the Biur Hagra where he quotes the Rosh in order to make an even stronger point about a woman's declaration even in the absence of a man's declaration (which is not what is advocated by this Ketubah). According to the Rosh, a woman making the declaration (here it clearly means the passive one) after the man gives the ring, in the midst of "the act of qiddushin", is a valid marriage because (27:1) he could give the ring and say absolutely nothing in such a circumstance and it would be a valid marriage. Thus, her saying anything at all can't make that worse than saying nothing!

A final note: all of the above is formulated for the benefit of the positivist or one who wishes to satisfy that point of view. Needless to say, given a different jurisprudential perspective, other powerful reasons could be given to support the mutuality of declaration.

Used with the permission of the author. This ketubah may certainly be used, but it should not be published or otherwise distributed without the author's permission. Please also note that it currently has no official status.