Marriage and divorce customs in Yemen and Eretz Israel.

Until the Yemenites' mass immigration to Israel in the years before and immediately after the establishment of the State, Yemenite Jewry preserved several marriage and divorce customs based on the rulings of the Talmud and of Maimonides that had been abandoned by other Jewish communities. These customs included the marriage of minor girls, levirate marriage (yibum), polygamy, divorce against the wife's will, and compelling a husband to divorce a wife who could not bear to live with him. Economic and social factors also influenced marriage practices in Yemen. Thus, underage girls were often betrothed in order to ensure them a good match, or, if they were orphans, to save them from forced conversion to Islam. Similar factors contributed to polygamy, which was less prevalent in Yemen than is commonly thought. Yemenite scholars were flexible in their rulings regarding yibum and considerate of the interests of the childless widow (yevamah).

In Israel, most of these customs have disappeared because of the different social conditions prevailing there and the ordinances of the Chief Rabbinate, which forbid the betrothal of girls under the age of 16 and enforce the "ban of Rabbeinu Gershom" regarding polygamy and divorce without the wife's consent.

INTRODUCTION: WOMAN AND THE FAMILY IN YEMENITE JEWRY

In Yemen, life was organized around the extended family. The married woman lived in her father-in-law's house, as was usual in the Talmudic period. (1) The household chores were usually overseen by the paternal grandmother, and every woman in the extended family knew her duty. This social framework provided the young bride with considerable support in raising her children. (2) The impressions of visitors from abroad regarding family life in Yemen are instructive in this regard. The Alliance representative Yom Tov Semach, who visited Yemen in 1910, wrote:

 
   The Jewish family is very much united. The master gives orders 
   sweetly and in pleasant speech, without shouting and without 
   complaining. And everyone complies with his orders with awe and 
   respect. Sometimes arguments break out within the group, but they 
   are very rare. In most cases many women live in one house: the 
   mother, the grandmother, the motherin-law, the aunts, the 
   daughters, the widows, the divorcees, and the granddaughters. They 
   all live together in peace and quiet with complete agreement 
   among them. Their whole life is a life of work. They don't have 
   free time to look at each other, to criticize each other, or to 
   quarrel. (3) 

Shemuel Yavne'eli, the Zionist emissary who visited Yemen in 1911-1912, portrayed family life in the places he visited along similar lines:

 
   The Yemenite family is a miniature sanctuary. Love, quiet, and 
   work reign there. I had no occasion to hear quarrels and 
   shouting in a Yemenite home between man and wife in everyday 
   life. The Yemenite is devoted to his wife and children, and the 
   wife is devoted to her husband without challenge, but in great 
   love.... 
 
      As the angel of peace, so is the Yemenite wife at home. She is 
   never heard to shout at the children or the husband. This is the 
   patience which has given these people a heart of flesh instead of 
   a heart of stone. And who knows how easy this trait has made it 
   for the Yemenite in his meeting with the haughty gentiles? (4) 

Yavne'eli's description, in turn, is echoed by Shlomo Dov Goitein, who met and studied the Yemenite immigrants soon after their arrival in Israel:

 
   The Yemenite woman (say, for the moment, the city woman) is 
   one of the most cultured types whom I have met in my life. If 
   culture is inner wholesomeness; that is, confidence, almost 
   without knowledge, in the ethical decision and the esthetic 
   judgment, then the Yemenite woman is very close to this 
   ideal.... 
 
      The educational separation of roles in the Yemenite home can 
   easily be read from the faces of the parents: While the face of 
   the Yemenite man is usually thin and shows an expression of 
   worry and seriousness, the face of the Yemenite mother usually 
   radiates a smile, or even a sweet giggle, revealing a content 
   heart and the blessing of common sense. (5) 

The impression of these writers is that although her status was inferior, and, like women throughout the Muslim world, she lacked basic rights, the Jewish woman in Yemen tried to manage her life in cooperation with her husband in such a way as to be content with her lot.

In this study I shall examine central issues in the marriage and divorce customs of Yemenite Jewry as they were observed in Yemen, and the changes that took place with the community's immigration to Israel in the twentieth century. The study of these topics enhances scholarly understanding of the status of Yemenite women within the domain of the family and the changes that occurred in it in the wake of the mass immigration from Yemen to Israel. The discussion will be based on documents from the last 250 years, as there is no known documentary evidence from before this period, and even this material is fragmentary. I have endeavored to include all the known sources, including the impressions of visitors and emissaries to Yemen and responsa of scholars in Yemen and (Eretz) Israel, some of which have not yet been published. I shall also draw upon documents from the Cairo Genizah as a basis for comparing the customs of medieval Jewish society with those of the Jews in Yemen.

MARRIAGE OF MINOR AND IMMATURE GIRLS

A woman is halakhically defined as a minor until she is 12 years old, as an adolescent between the ages of 12 and 12 1/2 (for a period of 6 months), and thereafter as an adult. (6) A minor girl cannot herself receive the money by which betrothal (kidushin) is accomplished, but a father has the authority to betroth his minor or adolescent daughter to anyone he wishes, and the betrothal is considered binding by law of the Torah (de'oraita, the highest and most absolute degree of religious authority). (7) If the girl's father has died, her mother and brothers may betroth her as a minor only with her agreement, and the betrothal is binding by rabbinic law (derabanan, considered a slightly lower degree). (8) When she reaches adulthood, she comes under her own authority (as long as she is unmarried) and may be betrothed only with her consent. The same is true if she is widowed or divorced while still a minor--she comes under her own authority only when she reaches majority. (9) Even though a minor girl could be betrothed, there were rabbinic scholars who did not look favorably upon this and preferred to wait until the girl grew up and said whom she wished. (10)

In the mishnaic and talmudic periods, marriages of minor, sexually immature girls were common in Jewish society. (11) Goitein and Mordechai Akiva Friedman, relying on their examination of Genizah documents, concluded that this was not the case in Egypt and its surroundings from the ninth to the thirteenth centuries. (12) On the other hand, Avraham Grossman, based on his examination of works by Jewish scholars from around the same period, reached the conclusion that marriage of minor and immature girls was common in Jewish society in both Muslim and Christian countries. (13)

In this section I shall discuss the factors that led to an increase in this phenomenon and appraise the prevalence of marriage of minor and immature girls among Jews in Yemen in modern times, based on the testimony of both outside visitors and Yemenite scholars.

Reasons for Marriage to Minors

Marriage of minor and immature girls was frequent in other Jewish communities as well. There were several reasons for this, including the wish of the parents to see their children building their own families and to minimize their sexual tensions at adolescence, as well as economic motivations. (14) There was also the desire to protect the daughter, following the Talmud's recommendation "that people should not do with her as they wished" (BT Yevamot 112b). (15) In not a few cases, the marriages were with extended family relations; once the parents had found what they considered a proper match, they betrothed the girl while she was still a minor to forestall the possibility that someone else might marry her. The Orphans' Decree in Yemen, which ordained that children who had lost both parents before reaching maturity were to be taken forcibly and raised as Muslims, (16) also increased the tendency to marry children, perhaps even males, as minors, since Islamic law regards married persons as adults and so forbids their forcible conversion. (17) Life in a Muslim milieu that likewise practiced marriage of minors (18) also helped preserve this ancient custom among the Yemenite Jews, as noted by Avraham Hayim Freiman: "For their custom is to marry the daughters while still minors, or immediately upon their maturity, as in the days of the Talmud and the Geonim." (19)

The Situation in Yemen

R. Yosef Kafih wrote that most of the girls in San'a were married between the ages of 11 and 15, and in isolated instances even younger. (20) In Haban in southeast Yemen it was customary for parents to marry off their daughters from the age of 7 and up, (21) and in many places it was usual to marry them between the ages of 9 and 13. (22) R. Yitzhak Shaul, who served as Chief Rabbi in Yemen, is said to have tried to prevent the marriage of minors. (23) It was said of R. Hayim Korah, an eminent nineteenth-century Yemenite scholar, that:

 
   Among the greatest of his principles was that one should not delay 
   [marrying] his adult daughter, but any time there is a worthy 
   match, even if he is poor and it is unworthy of him, he should 
   not decline [the suitor], according to what the Sages said: "When 
   servant and give her to him (BT Pesahim 113a)." (24) 

The rabbinic emissary R. Ya'aqov Sapir, who visited Yemen in 1859, recorded the following impression:

 
   It is still their custom (most of the time) to betroth their 
   fiancees when the match is concluded. But the marriage is put 
   off until the time and date when the two sides can manage their 
   needs. And if she does not find favor in his eyes before the 
   marriage, he releases her with a get of the betrothed [a bill 
   of divorce; see below] as required by [Jewish] law. And the 
   father has the authority to do with his daughter as he wishes. 
   He may sell her, betroth her, even when she is still a minor, and 
   may receive her get; but she may refuse if she has no father, and 
   if she is an orphan without even a mother, she is under the 
   authority of her brother who receives the inheritance.... But the 
   daughters are betrothed while they are still young and even below 
   the age of the young men, so that no one else may come first [and 
   marry her], and her father receives her betrothal money (and her 
   get) according to law; and the fiance waits for her until she 
   can cohabit with a man (at the age of 12), and then they hold 
   the wedding. (25) 

It is evident from R. Sapir's description that marriage of minor girls did occur under the auspices of their fathers, but that there was a lapse of time between the betrothal and the consummation of the marriage. The custom of separating the betrothal and the wedding was observed in the time of the Talmud and was continued in many places in Yemen throughout the history of the Jewish community there. (26) In the first half of the twentieth century, however, the custom in San'a and other places in Yemen was to hold the wedding the day after the betrothal ceremony, which took place in the evening. (27) Even then, there were still those who observed a longer separation between the betrothal and the wedding. (28)

Yavne'eli described the situation as he found it around 1911:

 
   We see the custom of marriage of immature girls in almost all of 
   Yemen. While she is still 12 or 13, the adolescent girl, the poor 
   and soft creature, starts to live her full life. Like a thread 
   immersed in oil which burns slowly, so is her little strength 
   consumed by the fires of passion and storm. The pregnancy and 
   birth afterwards do not tarry.... In some homes in several places 
   I happened to visit, it was sometimes hard for me to distinguish 
   between the father's wife and his daughter or daughter-in-law. (29) 

Yavne'eli is here portraying the marriage of "minors" in the modern sense; that is, of girls who had reached halakhic majority but were still under 16. He gives a list of couples from which we learn of marriage of immature girls in the Dhamar community. (30) Coming from a modern perspective, Yavne'eli did not conceal his disapproval of the phenomenon, while Sapir recognized in it the ancient Jewish tradition of marrying the girls while they were young and separating the betrothal from the wedding. (31)

Opinions of Yemenite Scholars

The most comprehensive book of responsa written in Yemen is Pe'ulat tzadik by R. Yihye Salih (c. 1715-1805; known as the Maharitz), Chief Rabbi in San'a in the eighteenth century and the most eminent Yemenite scholar of modern times. (32) In several cases, he and other scholars were asked to give opinions relating to the marriage of minors.

A Male Minor Who Betrothed a Female Minor

According to halakhah, males are defined as minors until the age of 13. A male minor may not betroth a woman, and if he does, the betrothal is invalid. (33) In 1778, Salih issued a responsum regarding a 12-year-old male who had betrothed a female minor on the condition that the betrothal would be valid only if he desired her when the time came. In the end he did not desire her and so did not marry her, but later on he sought to marry the girl's divorced sister. Had his earlier betrothal been considered valid, the second woman would have been considered his ex-wife's sister and so forbidden to him by a prohibition of the Torah. Salih concurred that his betrothal while a minor was not valid, and the marriage was permitted. (34)

In 1928, R. Yihye Yitzhak Halevi, Chief Rabbi of Yemen, gave his opinion in a case in which the betrothal of two minors was economically motivated, so as to keep the girl's inheritance within the family. Here is the text of the query and the responsum:

 
   I hope for Your salvation, O God. May the glory of the generation 
   and splendor of excellence teach us, regarding someone who brought 
   his niece after the death of her father before the rabbinical 
   court, while she was still a minor, and said that he wishes to 
   marry her to his minor son, in order that no one else may come 
   first [and marry her], and his brother's inheritance pass to 
   another tribe [cf. Num. 36:9]. And afterwards his minor son 
   betrothed his cousin with [betrothal money of] only the value of a 
   peruta, in the presence of valid witnesses, in the presence of the …