I want to be with you – I’m just not sure I want to marry: Rethinking the Wedding Contract!

Rachel S. Harris
May 10, 2013
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Me: Why are we getting married? Actually married and not just cohabiting on a permanent basis?
Mr Perfect: For tax purposes!
Me: Really? That’s the only reason?
Mr Perfect: Because it is the socially sanctioned contractual arrangement, encoding normative gender roles and property rights, that provides legitimation and financial advantages within American legal and economic frameworks.
Me: Huh?
Mr Perfect: People will think we are adults.
Me: Oh, you mean if you die I get your pension, and in the meantime we’ll get wedding gifts which we won’t get if we just live together.

Despite roughly 50% of all marriages in the US ending in divorce, under every possible indicator my intended marriage is likely to last at least 20 years (according to every statistical model there is). I’m thirty-five entering my first marriage (and so is he) meaning that my potential divorce rate drops to 5.6%. I am without children, I have a high educational level, and both my parents and my future spouse’s parents are still married (and hold hands).

Yet despite this potential good news – I’m not sure that ‘marrying’ rather than cohabiting necessarily makes sense. By Jewish law my children will be Jewish whether or not I have a ketubah (Jewish marriage contract). Since my groom is also Jewish as long as we stay together (and don’t start complicating things with additional children from other unions) our children are still pretty much covered for any kind of Jewish needs they may have at a later date (including attending Jewish day schools, going on birthright, and getting married with a ketubah!).

At a time when gay marriage is hotly debated, questions of what marriage means legally currently face center stage. (Hey, whether or not you agree with it, discriminating against a gay union through taxation disadvantages, death duties and pension benefits is just morally wrong). It is in this spirit that my acute sensitivity to the contract and its wording are part of the larger debate about the nature of modern marriage.

For the more traditional (first world) form of marriage (one man + one woman) there seems to be two responses that really exemplify the parameters by which society is responding to this seismic transformation in the long-term viability of marital unions. On one hand I present the State of Louisiana (well Mr Perfect is from there!). In 1997 a Law was introduced that made it possible for couples to choose a “covenantal marriage” as opposed to just “marriage”. While that language may seem a little ridiculous, since technically all marriages are covenantal, let’s role with it for a moment. In registering for a “covenantal marriage” applicants must demonstrate that they have received extensive pre-marital counseling that prepares them for this union and formally swear “We understand the nature, purpose, and responsibilities of marriage. We have read the Covenant Marriage Act, and we understand that a Covenant Marriage is for life. If we experience marital difficulties, we commit ourselves to take all reasonable efforts to preserve our marriage, including marital counseling.” Unlike a no-fault divorce where any party may invoke the right of divorce, under this category, couples can only get divorced when one party has behaved in a negative way prescribed by law including committing adultery, sexual or physical abuse, conviction for a felony that results in a death sentence (or hard labor), or to have lived apart for an extended period of time. The spirit of this law is to encourage couples to understand the commitment that they are entering into (beforehand) and to be deterred from leaving it once bound by its legal status. (I’m currently having visions of 1930s divorces with one spouse hiding in a motel in a staged scene with a second semi-clad party and the door bursting open with a camera flash….. )

By contrast to the Louisiana model which hopes to keep couples married, I offer you the transformation within the ketubah. Certainly Jewish law recommends some premarital counseling and encourages couples to stay together, but recognizing that marriages do fail, Jewish rabbinical courts have devised several solutions by introducing clauses to the ketubah, which are intended to make getting divorced easier. These different additions (including pecuniary punishment, and submitting to the Law of the Beit Din) are intended to prevent women from finding themselves unable to get a religious divorce (get) whereby they might become mesarvot-get (women denied a divorce) – sometimes incorrectly called Agunot (women whose husbands have gone missing) which would prevent them from remarrying. Given that divorce statistics are so high, Jewish law is attempting to make the process easier than it might otherwise be. After all in Jewish law, marriage is a legal contract about the distribution of property and financial obligations (and conjugal ones to!) but it is not actually about love (despite what Jacob may have said to Rachel).

And here we come to my biggest problem with marriage contracts and their confusion with popular marriage vows (what Mr Perfect calls the schmaltz). The expectation to “love, honor and obey” or worse “to become one” are filling me with horror. Yes I can be romantic, but I’m not sure that I want a legally binding contract to be filled with romance (and its wishy-washy terminology). Looking online for our own ketubah wording I have come across myriad options. Consider this traditional Orthodox ketubah:

“I will work for, esteem, feed and support you as is the custom of Jewish men who work for, esteem, feed and support their wives faithfully. And I will give you __Some pre-agreed financial amount___ and I will provide you food and clothing and necessities and your conjugal rights according to accepted custom.”

Now contrast it with this contemporary rendition (and note this is the ‘standard’ version, just imagine the other more romantic possibilities):

“Our lives are now forever intertwined. We will celebrate all of the passages of life together with joy and reverence. In times of happiness we will cherish each other, and in times of trouble we will protect each other. Our home will be a place filled with warmth and light, shared freely with all who dwell there. We willingly enter into this covenant of companionship and love: from this day forward, we are as one.”

I think that the burdens and expectations of financial provisions outlined in the traditional contract are a reasonable demand from the relationship but are also (at least to a practical degree) quantifiable. I’m not sure that one can measure the amount of warmth and light, or the share of love – and I strongly suspect that when married you don’t feel in love with your spouse every minute of every day, however that doesn’t negate your responsibility to provide for the person with whom you may share a dwelling and even a family. I recognize the gendered nature and the one-sided expectation of the older contract, but even in an egalitarian form it serves to provide a technical blueprint. In constructing the more idealistic and romanticized notions of marriage, promising as one model put it “The greatest gift any of us can give to our family and the world is to be truly authentic to ourselves, and to follow our hearts wherever they may lead us. Our hearts have led us to each other, and have bound us together as one” are we in fact sowing the seeds for later dissatisfaction? – What exactly happens when following your heart leads you elsewhere? What happens when becoming ‘one’ feels a little suffocating?

Ultimately, Mr Perfect and I will get married rather than cohabit, because I’m not going to fight the entire federal (and social) system. We will tweak the language of our ketubah (so that I’m happy and the Rabbi won’t be insulted). But I hope that in thinking about the legal contract that binds us through a powerful covenant, our formal and legalized union will be a reflection not only of our love (which I don’t feel the need to prove publicly) but of the obligations and commitments we owe to one another, whether or not we are feeling loving; and it is a reflection of the fact that marriage offers excellent tax breaks; and finally because in the end I really want new towels and some nice dishes – though I draw the line at a Kitchen Aid (there is only so much social conforming that I can manage).

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Rachel S. Harris is Assistant Professor of Israeli Literature and Culture in Comparative &World Literature and the Program in Jewish Culture & Society at the University of Illinois, Urbana-Champaign. She has published on contemporary Israeli literature and culture in the journals Israel Studies, Shofar, and Modern Jewish Studies. She has written on suicide in Israeli literature, and more recently on women in Israeli film. Her co-edited volume bringing together articles on a range of subjects “Narratives of Dissent: War in Israeli Culture and Arts” will be published in the Fall through Wayne State Press. She is also the series editor for the Dalkey Archive Press “Hebrew Literature in Translation Series” and the Hebrew editor of “The Levant Notebook” an online literary magazine bringing together Middle Eastern fiction and poetry in English translation, along with reviews, and opinion pieces on the state of culture.

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