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Extramarital Relationships

(EH 26:1)

Question:
Is it permissible for a single man and a single woman to establish a long-term sexual relationship outside of the framework of betrothal and marriage (erussin and kiddushin) as defined by Jewish law?

Responsum:
In the State of Israel, extramarital sexual relationships (henceforth: EMR) are often justified by the consenting couple as:

1. A relationship of convenience without the “limiting aspects of a formal marriage”.

2. A trial period prior to formal marriage.

3. An act of opposition to the religious ceremony imposed on secular Jews by the religious establishment of the State.

A thorough investigation of the halakhic sources leads us to the following conclusions:

1. Jewish law prohibits all forms of EMR outside of the framework of betrothal and marriage.

2. A Jewish bill of divorce (get) is not required to dissolve such a relationship since it has no halakhic validity from its inception.

Now let us examine the six major issues related to our topic:

1. EMR with a penuyah or unmarried woman: EMR are not explicitly mentioned among the Biblical prohibitions regarding sexual relations. Nevertheless, Rabbinic literature beginning with Tosefta Kiddushin (1:4), derives this prohibition from Leviticus 19:29: “Do not degrade your daughter making her a harlot lest… the land be filled with depravity”. Rashi, Maimonides and other authorities therefore equate EMR with harlotry. Maimonides adds that the verse “No daughter of Israel shall be a kedeisha” (Deutoronomy 23:18) refers to a woman who engages in EMR. On the other hand, it is clear that since there was no kiddushin, there is no need for a get. Therefore, the couple that engages in EMR has transgressed a negative commandment but do not require a get.

2. The prohibition of Yihud or private meetings between men and women: The prohibition of a man being alone with a woman (yihud) was decreed by the rabbis (Mishnah Kiddushin 4:12-14; but cf. Sanhedrin 21a-b) and was observed by pious Jews throughout Jewish history as an essential part of modesty. Those laws, however, were in keeping with a society in which segregation between men and women was common and accepted. In our day, given the fact that men and women work together in all walks of life, the laws of yihud are no longer workable or applicable. Therefore, there is little point in applying this prohibition to EMR.

3. The pilegesh or concubine: The institution of pilagshut or concubinage existed at certain periods in Jewish history. Yet it would be strange to use pilagshut as a precedent for EMR since a pilegesh was a woman taken by a married man in addition to his wife and her legal and social status was always below that of the wife. Furthermore, most medieval authorities (with the notable exception of Nachmanides) do not accept the halakhic validity of pilagshut. Rabbi Ya’akov Emden (d. 1776; Responsa Ya’avetz, Part 2, no. 15) allowed a Jewish man to take a pilegesh in order to prevent more serious offenses such as affairs with non-Jewish women, but his view was rejected by most subsequent authorities. Thus, pilagshut cannot be used as a precedent for EMR because a) it is rejected by most halakhic authorities and b) pilagshut was in addition to marriage, not instead of marriage.

4. The Common Law spouse in Israeli law: Some say we should recognize the halakhic validity of EMR because Israeli law acknowledges such relationships. This argument is specious. Such “recognition” is limited to the economic sphere in order to protect mutual partnership commitments and joint property. In no way does such protection given by the State to the Common Law spouse imply recognition of their marital status (Menashe Shawah, Personal Law in Israel, Tel Aviv, 1983, pp. 203-221).

5. EMR lack three of the essential conditions of Jewish marriage:

a) EMR lack proper kiddushin (kiddushin kara-uy) which include the betrothal by a ring, with the understanding and consent of both partners, in the presence of two valid witnesses.

b) EMR lack the essential element of a ceremony conducted for the express purpose of marriage (lesheim kiddushin).

c) Lastly, the Jewish marriage ceremony includes the groom’s commitment and obligation to the bride as expressed in the ketubah.

Since EMR do not meet these three essential requirements, there is no reason to assume that kiddushin have taken place.

6. “There is a presumption (hazakah) that one does not treat his sexual relations as an act of harlotry” (Gittin 81b and Ketubot 73a): At first glance, this statement might be utilized to claim that sexual intercourse is an indication of a valid marriage and hence requires a get. The halakhah, however, only uses this legal presumption when there are indications that kiddushin did indeed take place accompanied by elements of doubt with regard to the conditions and process of the alleged kiddushin (Gittin and Ketubot ibid.). In the case of EMR, there is no such doubt. On the contrary, kiddushin as defined by halakhah is clearly denied by the couple so this halakhic principle cannot apply.

In conclusion, halakhah forbids a man to have sexual relations with an unmarried woman. Furthermore, EMR lack three of the essential elements of kiddushin: proper kiddushin, a ceremony for the purpose of kiddushin and a ketubah. Lastly, attempts to justify EMR on the basis of pilagshut, Israeli law and “the presumption” etc. were shown to be unconvincing.

In an age in which the Jewish family is threatened, we must more than ever defend the central pillars of the Jewish family – erussin and kiddushin – that have sanctified the Jewish people for thousands of years. We must influence the young couple through gentle persuasion to become sanctified by our sacred tradition so “that Zion may rejoice in her children.”

Rabbi Pesach Schindler
Approved Unanimously 5751

* “Extramarital in this abstract means “outside the bonds of marriage” as defined in the World Book and Oxford dictionaries.

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