As we approach the end of Seder Nashim we conclude our discussion of the various obligations and responsibilities involved in the marital relationship with the rules and regulations relating to the act of marriage itself. Massekhet Kiddushin focuses mainly on the crucial moment when the marital relationship is formed. That is to say, it clarifies how two distinct individuals become husband and wife; how they form a new entity, that of a family. A family is not created simply by having a man and a woman live together, or even if they have children together. Such relationships certainly have significance, but they do not create the singular relationship of marriage. The close relationship of marriage creates family even without any shared blood lines or genetic material, a relationship that is, in some ways, even closer than that – in the words of the Bible they have become basar ehad – one flesh, a single entity (see Bereshit 2:24). The relationship of marriage comes about by means of a formal, legal act called kiddushin.
From the perspective of halakha, kiddushin is a positive commandment whose fulfillment is dependent on the existence of the appropriate opportunity. When a man decides to marry a woman – which he must do in order to fulfill the commandment of peru u’revu (to be fruitful and multiply) – he must do so by means of kiddushin. Massekhet Kiddushin does not focus of the mitzva involved, nor on the marriage ceremony, rather on the legal ramifications of this union.
The relationship of kiddushin does not complete the marriage, since a second ceremony, called nissu’in, is what actually allows the couple to begin their lives as a married couple. Nevertheless, the kiddushin is what establishes the basic relationships and responsibilities between the husband and wife.
The details of kiddushin are not spelled out in the Torah, and they appear in the Gemara as oral traditions or are derived from a close reading of biblical passages. Although there are disagreements about details, most of the basic issues are agreed upon. There are four fundamental components of marriage according to Jewish law:
- An appropriate act of marriage – kiddushin
- The agreement and expressed desire of the man and woman to marry
- Two witnesses who are present at the moment of kiddushin
- The man and woman must be people who can marry one-another
According to the Mishna, there are three methods that can be used to create kiddushin:
- Kesef – The man offers the woman money or an object of value, stating that it is for the purpose of marriage
- Shetar – The man gives a document to the woman that indicates that he is marrying her with this paper
- Bi’ah – An act of sexual intercourse that is performed for the express purpose of consummating marriage.
As stated, both husband and wife must enter into the relationship of marriage by their own free will. It is therefore essential that the parties must be intelligent and aware at the time of the marriage. (One exception is a case where the wife is a minor, where the Torah allows the woman’s father to arrange a marriage on her behalf.)
The role of the witnesses at a wedding is not merely to testify that the marriage took place, rather they are essential to the act of marriage itself. Without witnesses the marriage has no meaning, even if both parties attest to the fact that they exchanged vows or presents with the intention of marrying.
Finally, the husband and wife must be people who can marry each other. Marriage of a Jew and a non-Jew, for example, has no significance according to Jewish law. Similarly, if they are close relatives – arayot – the act of marriage has no meaning, although if they are merely forbidden to each other, even because of a Torah law (e.g. a kohen marrying a divorcee), the kiddushin will take effect, even though the couple will not be allowed to live together.