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Child Marriage

CHILD MARRIAGE

CHILD MARRIAGE , a marriage to which either or both the parties are legal minors. A male is legally a minor (katan) until the end of his 13th year; thereafter he is considered an adult (gadol or ish; Maim. Yad, Ishut, 2:10). A female is legally a minor (ketannah) until the end of her 12th year; thereafter she is considered an adult (gedolah) – but with one additional distinction: for the first six months after her 12th birthday she is called a na'arah and from the age of 12½ plus one day she is called a bogeret (Maim. Yad, Ishut 2:1–2). A child marriage involves two considerations: first, the capacity of a minor to change his personal status by marriage contracted as his own independent act; and secondly, whether others – such as parents – may validly give a minor in marriage and the resulting effect on the minor's personal status.

Marriage of a Minor Acting by Himself

The rule is that "an act of marriage [kiddushin] by a minor is – as everyone knows – nugatory" (Kid. 50b) and thus no divorce is required for the dissolution (Yev. 112b; Sh. Ar., eh 43:1, Ḥelkat Meḥokek, ibid. 1). This is also the rule regarding a ketannah (Kid. 44b; Sh. Ar., eh 37:4, 11). After she has reached her 12th birthday, subject to her father being no longer alive, she may contract a marriage which is valid under biblical law (Yev. 109b and 110a; bb 156a; Maim. Yad, Ishut, 2:6; Gerushin 11:6). If her father is still alive and she is a na'arah, she requires her father's prior consent to her marriage (Kid. 79a; Sh. Ar., eh 37:1,2). Males and females, on reaching the age of 13 years and a day and 12 years and a day respectively – unless they do not show signs of physical maturity (i.e., puberty: Maim. Hil. Ishut, 2:1–20) – may contract a marriage which is valid in all respects.

Marriage of a Minor, Contracted by Parents

The rule in the case of a minor male is that neither his father nor anyone else may contract a marriage on his behalf, and the rabbis did not enact a special rule permitting such marriage as they did in the case of a female minor, since the reason in the latter case (namely, so that people should not treat her licentiously – minhag hefker) is not considered applicable to a male minor (Yev. 112b; Sh. Ar., eh 43:1). A talmudic statement commending a parent who gives his children in marriage when they are close to the age of puberty (samukh lefirkan; Sanh. 76b; Yev. 62b) was interpreted as meaning that a father may give his son in marriage even before the age of 13 (Rashi and Tos. ibid.; Bah, eh 1; Taz eh 1, m.3). However, the halakhah rejected this and the statement was interpreted to mean that, in the case of a boy, samukh le-firko meant just after his reaching the full age of 13. Giving him in marriage before that age was tantamount to prostitution and forbidden (Sh. Ar. eh 1:3 and Commentaries, ibid. 43:1; Oẓar ha-Posekim eh 1:14). Although it is a mitzvah to marry in order to be able to observe the mitzvah of procreation and generally one is obliged to observe the mitzvot from the age of 13 – this particular mitzvah of procreation only devolves on the male from the age of 18 (Beit Yosef,eh 1:3).

In the case of a girl, however, a different rule prevails. A father is entitled to arrange the kiddushin of his daughter, whether she is a ketannah or a na'arah, without her consent (Kid. 44b and Sh. Ar., eh 37:1 & 3). Accordingly, if a father effects kiddushin for his daughter by, e.g., accepting kesef-kiddushin for her (see *Marriage), she is considered a married woman and cannot remarry until the death of her husband or her divorce from him (Kid. 44b and Rashi; Tur and Beit Yosef, eh 37; Sh. Ar. eh 37:1, 3). However, by talmudic times some of the sages were opposed to child marriages of this kind and opined that "it is forbidden for a father to give his minor daughter in marriage until she has grown up and can say: 'l want so-and-so'" (Kid. 41a). In later times, the uncertainties of life in the Diaspora made parents reluctant to delay their daughters' marriages until they had grown up. The prohibition was therefore not accepted as halakhah (Tos., Kid. ibid.; Sh. Ar., eh 37:8) – its observance was seen as a mitzvah (Maim., Ishut, 3:19; Sh. Ar. eh 37:8).

On the other hand, if a father has, on the strength of the aforesaid halakhah, given his minor daughter in marriage she passes permanently out of his guardianship, and in order to give valid effect to any divorce she must receive the bill of divorce (get) herself. Her father is no longer authorized to contract another marriage for her, even if she has not reached her majority (Sh. Ar., eh 37:3). But, being a minor, she is prohibited by biblical law from contracting a marriage by herself – in the same way as if she were an orphan (Sh. Ar. eh 155:1). Thus, a ketannah who has become a widow or divorced is regarded as an "orphan in her father's lifetime" (Yev. 109a). However, because of the fear that nobody would take care of her or that she might be treated licentiously, a rabbincal takkanah permitted her – provided she understood the meaning and implications of marriage – to contract another marriage, either by herself, or, with her consent, through her mother or brothers (Yev. 107b; 112b and Rashi; Kid. 44b and Rashi; Maim.; Ishut, 11:6; Sh. Ar., eh 155:1,2). According to one opinion, her father is also empowered by this takkanah to contract another marriage for his daughter, with her consent, although he is no longer competent to do so under biblical law (commentaries to Sh. Ar., ibid.).

Me'un (Declaration of "Refusal" or Protest)

Since, according to biblical law, a marriage by a ketannah has no validity but is based only on a rabbinical takkanah, a formal divorce is not required if the girl subsequently refuses to live with her husband (see *Divorce). Such refusal can be expressed by an informal declaration before the court (and, in retrospect, it is sufficient if the declaration was made before two witnesses) – not necessarily in her husband's presence – to the effect that she no longer wishes to live with her husband. If she made no such declaration and she is subsequently widowed, she may make a similar declaration with regard to her levir (see *Levirate Marriage). This declaration is called me'un and the girl making it is called mema'enet – meaning that she refuses to continue to be the wife or levirate widow of the man she married, on the strength of which she is granted a bill of divorce by me'un, i.e., a certification of her "refusal" (Yev. 107b and 108a; Sh. Ar., eh 155:1, 3,4,5,7). The effect of me'un is not divorce, i.e., dissolution of the marriage thence-forward, but annulment of the marriage ab initio, as if it had never taken place. Accordingly, me'un does not have the legal consequences of divorce and, thus, among other things, the relatives of one party are not the prohibited kin of the other party; nor is she prohibited to a kohen; and if, after me'un, she contracts a second marriage which is subsequently dissolved, she may thereafter remarry her first "husband." Nor has she to wait 90 days after me'un before remarrying (Yev. 108a, eh 155:10; and see Prohibited *Marriages).

The marriage of a female minor, as mentioned above, is not effective unless she understands the implications of the marriage and consents thereto. In the absence of either of these conditions at the time of the marriage, therefore, even me'un is not required to annul the "marriage" (Sh. Ar., eh 155:1). On the other hand, she is entitled to declare her "refusal" as long as she is a ketannah, i.e., until the age of 12 years and a day (unless she showed no signs of puberty and had not had sexual intercourse with her husband). Her failure to do so until then is regarded as a form of consent, as an adult, to the marriage – which is thereafter binding on her and can only be dissolved by divorce or the death of her husband (Nid. 52a, Sh. Ar., eh 155:12; 19; 20; 21).

State of Israel

In the State of Israel steps have been taken by both the legislature (Knesset) and the chief rabbinate to prevent child marriages. By a takkanah adopted by the National Rabbinical Conference held in Jerusalem in 1950, a man is forbidden to contract a marriage with a girl under the age of 16, nor may her father give her in marriage (see Schereschewsky, bibl. pp. 431f.). However, this prohibition does not nullify a marriage that has nonetheless been celebrated in defiance of it, since in Jewish law such a marriage may be valid. Under the Marriage Age Law, 5710 – 1950, as amended in 5720 – 1960, it is an offense punishable by imprisonment or fine or both for any person to marry a girl under the age of 17 or to celebrate or to assist in the celebration of such a marriage in any capacity (e.g., as rabbi or cantor) or for a father, guardian, or relative to give the girl away in marriage. However, the district courts have jurisdiction to permit the marriage of a girl under the prescribed age in two cases: (1) regardless of her age, her marriage may be permitted to a man by whom she has had a child or is already pregnant; and (2) if in the discretion of the court there are special circumstances which justify such permission being granted, provided in this case that the girl is not under 16.

Until 1998 there was no minimum age for marriage in the case of males. The law provides that the celebration of a marriage in contravention of the law is grounds for the dissolution or annulment of the marriage in any legal manner – in accordance with the law applicable to matters of personal status with reference to the parties concerned. The law applicable in the case of Jews (citizens and residents of Israel) is Jewish law (Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713 – 1953 – sections 1, 2). Thus, if a marriage is valid according to the law governing the personal status of the parties, the mere fact that the marriage was celebrated in breach of the state law cited is not, of itself, grounds for divorce or annulment – if such a course would not be justified under the personal status law.

Generally speaking, child marriages do not occur in Israel – although there have been cases, among immigrants, of child marriages contracted in their countries of origin, notably in Yemen. Such cases have been the subject of discussion in proceedings before the rabbinical courts (see pdr vol. 1, p. 33ff.; vol. 3, p. 3; vol. 4, p. 244ff.).

[Ben-Zion (Benno) Schereschewsky]

The Marriage Age Law was amended in 1998, and today there is one statutory prohibition on child marriage, applying equally to boys and girls. The list of exceptional cases enumerated above, in which the court has jurisdiction to permit child marriages, is supplemented by an additional case – where a boy wishes to marry a girl who is pregnant by him.

[Menachem Elon (2nd ed.)]

bibliography:

A. Gulak, Ozar, 88f.; et, 1 (1951), 5f., 344; 3 (1951), 159; 5 (1953), 138f.; 12 (1967), 51; B. Scherschewsky, Dinei Mishpahah (1967), 44–51, 431f. M. Elon, in ilr 4 (1969), 115f. add. bibliography: M. Elon, Ha-Mishpat ha-Ivri (1988), I:416, 524, 675, 688, 1339, 1386f.; idem., Jewish Law (1994), 2:508f., 638f., 833, 849; 4:1599, 1654f.; M. Elon and B. Lifshitz, Mafte'aḥ ha She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah, 2 (1986), 393–94; B. Lifshitz and E. Shochman, Mafte'aḥ ha She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefat ve-Italyah (1997), 290.

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