A Question of Jewish Law

January 28, 2016

30 – Father of Many Nations

Filed under: Conversion,Jewish Law,Life Cycle,Marriage and Divorce — chaimweiner @ 10:17 am

Question: What is the proper way to refer to a convert when called to the Torah?

Answer: The use of family names is a late phenomenon.  Since many people share the same name, to avoid confusion the custom is to refer to a person together with the name of their father.  This is the case when a person’s father is a Jew.  A person who converts to Judaism is seen as one who has been born again.  Therefore, we no longer link them back to their biological parents.

The earliest evidence we have for the naming of converts comes from headstones found in ancient cemeteries.  From these we know a large number of names dating from the Second Temple period, including several people who were referred to by the title ‘HaGer’, meaning ‘the convert’. This is also the case in early rabbinic literature. One of the early translations of the Bible to Greek was done by Akilas HaGerYehuda ben Gerim was a student of Rabbi Yohanan.  One of the leaders of the rebels in the Great War against Rome was Shimon Bar Giyora, which derives from the word HaGer.  Even if the use of ‘HaGer’ was not universal it was certainly not uncommon.

The use of the word HaGer continues into the Middle Ages.  However, starting from the 11th century we find converts being referred to as ‘Ben Avraham’ or ‘Ben Avraham Avinu’.  Two different explanations are given. Gershom ben Yakov HaGozer, a Mohel  [13th century, Germany] writes that when naming the child of a convert, the child should be referred to as ‘Ben Avraham’ because Abraham was the first convert to Judaism. Rabeinu  Asher [14 century, Germany and Spain] writes that when recording the name of a convert in a GET he is referred to as ‘Ben Avraham’ because Abraham was blessed by God as the father of many nations.  There are many other halachic authorities who rule that the proper way to refer to a convert is ‘Ben Avraham’.

There are also authorities who say that a convert should be referred to as ‘Ben Avraham Avinu’.  Rabbi Alexander HaKohen, [15th century, Germany] an expert on Gittin, writes that one should refer to a convert by the name of ‘Avraham Avinu’ and not just ‘Avraham’ in order not to mislead.  Joseph Karo in the Shulchan Aruch rules that in a GET, the title ‘Avraham Avinu’ should be used.  The use of Avraham Avinu is prevalent since the 17th century.

In recent years there are those who have opposed the use of a special name for converts, pointing out that it is forbidden to shame a convert by reminding them of their former life.  However, historically the title ‘convert’ was not seen as a derogatory title. No one felt that the need to hide the fact that they had converted.

Following historical precedent, the correct way to refer to a convert is either ‘HaGer’, ‘Ben Avraham’ or ‘Ben Avraham Avinu’.  In communities where both father’s and mother’s names are used, it is appropriate to refer to both Abraham and Sarah.

In the case where a child’s father is Jewish, there is no reason not to refer to his biological father.  Also, an adopted child should be referred to by his adoptive parents’ names.  This follows the halachic principle that a person who raises a child assumes the status of a parent.

Rabbi Chaim Weiner

Shevat 5776

Based on ‘What is the Proper Way to Refer to the Parents of a Convert?’

Responsa in a Moment 10:4  – Rabbi David Golinkin.

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March 14, 2011

Be Betrothed Unto Me …

Filed under: Marriage and Divorce — chaimweiner @ 4:42 pm

Question: A traditional Ketubah indicates the status of the bride – who is described either as a virgin, divorcee, convert or widow. What is the proper way to write the Ketubah of a couple who have lived together before their marriage? What is the proper wording of a Ketubah for a woman who had been previously married to a non-Jew, and is now entering her first Jewish marriage?

Answer: The traditional Ketubah went through many changes before it reached its present form. The Talmud [BT: Ketubot 82b] states:  At first they used to give merely a written undertaking in respect of the kethubah … and consequently they grew old and could not take any wives. It was then ordained … however, when the husband was angry with her he used to tell her, ‘Go to your kethubah’. It was ordained …  Still, whenever the husband had occasion to be angry with his wife he would say to her, ‘Take your kethubah and go’. It was then that Simeon b. Shetah ordained that the husband must insert the pledging clause, ‘All my property is mortgaged to your kethubah’.

The traditional Ketubah states a sum of money the groom is obliged to pay his wife in the case of divorce. This was to guarantee that the wife did not leave the marriage empty-handed. As a young maiden had better prospects of marriage than other women, the prospective husband had to guarantee her higher compensation in the event of divorce. The traditional sum is 200 zuz in the case of a virgin and 100 zuz for any other bride. This is known as the basic Ketubah.

R. Moshe Isserlis [Poland, 16th Century] rules that the Ketubah must also state whether the bride was a divorcee so that it would be known that she was not permitted to marry a Kohen. Other poskim, for similar reasons, have added that the Ketubah should state whether the bride is a widow or convert.. In historical Ketubot there are several other categories that have been used.

The case of a non-virgin bride appears in traditional sources. Maimonides rules that the husband ‘writes her Ketubah like all other young maidens.’ [MT  Na’ara Betulah 1:3] The widespread practice of couples openly living together was unknown in the pre-modern world.  Basing himself on Maimonides, R DZ Hoffman  [Germany, 19th Century] rules that one should not change the traditional wording of the Ketubah, so as not to cause embarrassment. [Melamed Leho’il, EH:23]  It follows that the term virgin in a modern Ketubah simply means ‘previously unmarried’. Thus, in all cases where the bride has not been married before, the term ‘Betulta’ (virgin) is used.

However, where the wife is known in public as a married woman, referring to her as a virgin is inappropriate. In this case, the generic term ittata – literally ‘woman’  – is used. This is what is done in the case of a woman who has children or is a divorcee from a previous civil marriage.

Regarding the sum of the Ketubah, Rabbi Moshe Feinstein  [USA, 20th Century] rules that whenever the term Betulta is used, the sum should be 200 zuz [Igrot Moshe EH Part 1, 101]. There is nothing that prevents the husband  increasing the sum specified in the Ketubah to beyond that demanded by the strict letter of the law, and therefore the Ketubah for a first marriage should be 200 zuz, regardless of whether this is strictly required by law.

Rabbi Chaim Weiner

Based on DZ Hoffman, Melamed Leho’il, EH 23

 

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December 8, 2010

Marriage by Default

Filed under: Marriage and Divorce — chaimweiner @ 2:30 pm

Question: A couple were married in a civil ceremony without a religious wedding. Do they require a GET if they divorce?

Answer: The Mishna [Kiddushin 1:1] states that A woman is acquired in marriage in three ways … by money, by deed, or by intercourse. There are three different ways that a marriage can be contracted in Jewish law. The traditional Jewish wedding has all three of these elements – a ring (money), a Ketuba (contract) and Yichud (time the couple is alone together). Any one of the three is enough to create a Jewish marriage. Therefore, whether there was a Jewish wedding or not, if a couple lives together with the intention of living as man and wife, this is a binding marriage in Jewish law and a GET is required.

This highlights a basic difference between the concept of marriage in Jewish law and civil law. In civil law, marriage is considered an act of the State. Therefore, for a marriage to be valid it needs to be registered with the authorities and it can be dissolved by a court of law. In Jewish law, marriage is a private agreement between two individuals. Therefore it can be contracted by mutual agreement, and can only be dissolved with the consent of both parties.

The complicated part is determining the intention of the couple. While it is likely that a couple choosing a civil marriage wish to be considered man and wife, it is also possible that the fact that they specifically chose not to have a religious wedding indicates that they did not intend to be married under Jewish law. Different halachic authorities have taken different approaches to this. R. Abraham Shag [19th century, Hungary] [Ohel Abvraham, 103] writes that we rely on a Talmudic principle that we always assume that a person had proper intentions when cohabiting. Therefore, lacking any other information, we assume that there was a valid marriage and a GET is required. On the other hand, R. Shlomo Schik [19th century, Hungary]  (Maharam Schik, EH 96) writes that even if in theory such a marriage may be valid, granting validity to such a marriage would undermine the institution of marriage in Jewish law. He therefore rules that such a marriage is automatically void and a GET is not required.

Therefore, there is a doubt as to whether or not a GET is required.  We apply the principle that ‘when there is a doubt about a Torah Law we follow the strict position’. Therefore a GET is required. However, since this was a case of doubt, after the fact – if the couple did not have a GET and subsequently remarried, the children of the second union would not be considered illegitimate and in this case no GET would subsequently be required.

Rabbi Chaim Weiner

Based on R. David Hoffmann Shut Melamed Lehoil. EH 20.

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