The Rationale of Child Marriage & the Case for Early Marriage

I was sent this question by JVO after the answers had been posted presenting the Reform and Conservative responses. Here I will present the halachic development and explanations for child marriage within Orthodoxy and examine the rationale for early marriage.

A. Child Marriage – Historical, Halachic and Sociological Development

1. Girls Under Age 12: In Talmudic and Medieval times the father had the power of jurisdiction to marry off his young daughter from the day she was born until she reached age 12 (Shulkhan Arukh, Even HaEzer, Laws of Marriage, 37,1). This reflected social concerns necessitating early marriage, such as protecting young girls from minhag hefker, i.e. being taken advantage of by licentious opportunists (Talmud, Yevamot 112b). By the end of her 12^th year a girl is considered an adult (gedolah) and has the right to decide whom to marry (Shulhan Arukh, Even HaEzer, 37,2; 43,1).

The Rambam (Mishneh Torah, Laws of Ishut 3, 19) followed by R. Yosef Caro in the Shulkhan Arukh (Even HaEzer 37,8) both rely upon Kiddushin 41a to prove that a marriage should not be arranged before the daughter is 12.5 years old as before that she does not have the minimal maturity necessary to declare, "I want this fellow". However, in Ashkenazi communities, economic vicissitudes were a significant factor in encouraging early marriages. Tosafot (12^th-13^th century) on Kiddushin 41a writes: We commonly practice marrying off our daughters at a very young age because the hardships of exile grow daily and financial insecurity makes it difficult to know if we can obtain a dowry later, and there is a concrete danger that the daughter will remain a spinster. Similarly, the Ramah (R. Moses Isserles) disagrees with R. Yosef Caro: In practice, in our times, we do marry off our little daughters, because we are in exile and we do not always find it easy to obtain the necessary dowry. Furthermore, we are a Jewish minority in our towns and finding the proper marital match is often difficult (Shulkhan Arukh, Even HaEzer, 37,8).   

2. Boys Age 13: At age 13 a boy is considered an adult (gadol or ish) - (Maimonides, Yad Hazakah, Ishut, 2,10) and only then was he permitted to marry (Even HaEzer, Kiddushin, 43,1).

3. Age 16: As social norms and definitions of "adulthood" changed, the marital age began rising. The National Rabbinical Conference held in Jerusalem in 1950 adopted a takkanah forbidding marriage for girls under age 16, but not nullifying such marriages once they were already made (e.g. with immigrants from Yemen). For further reading: see the entry "Child Marriage" written by Ben-Zion Schereschewsky and Menachem Elon in Encyclopaedia Judaica (Ed. M. Berenbaum and F. Skolnik), vol. 4, 2^nd ed.  Detroit, 2007, pp. 616-617.

4. Ages 16-18: R. Yosef Caro in Beit Yosef, Even HaEzer, 1,3, writes that marriage is a mitzvah incumbent on a male from age 18. He bases himself on the Mishnah (Avot 5, 21), although he notes possible alternative earlier ages of 16 or 17. Age 17 is currently the minimum age for marriage in Israel. Family courts can permit marriage of a girl under 17 to a man by whom she has had a child or is already pregnant, and for 16 year olds when they find "justifiable circumstances". Currently, a legislative lobby is seeking to raise the minimum age to 18 in order to alleviate problems seemingly exacerbated by early marriages.

B. Early Marriage or Late Marriage?

Early marriage is encouraged in many Orthodox circles. One such community is a group of Breslov Hasidim led by Rabbi Eliezer Shlomo Schik in Yavniel in Galilee where marriages even for 16 year olds are encouraged with the intention of ensuring a life of holiness and diminishing the sexual anxieties of bachelorhood.

While marriage of underage minors is a relict of the past, the new problem of today is "belated marriage". While the median age for a first marriage in the US in 1950-1960 was 20.3 for women and 22.8 for men, now it has jumped to 26.1 and 28.2 respectively. Furthermore, 20.4% of men ages 41-44 in 2010 were never married, whereas in 1970, it was merely 4.9%[1].

Late marriage is a factor in the crisis of Jewish continuity. The Jewish population growth world wide from 2000 to 2001 was close to zero - merely 0.3%. Women occupied in successful careers discover a ticking biological clock and lose the advantage of their most fertile years. Men prolong bachelorhood only to find that it too late to have a big family. While the world TFR total fertility rate[2] is just 2.55, American Jews have an incredibly low TFR of only 1.43. Contrast ultra-Orthodox Jews (Haredim) – in just six years from 2000-2006, they increased their share of American Jewry from 7.2% to 9.4%. Similarly, in Israel, the TFR for Jewish women was 2.97 in 2010. But for Ashkenazi Haredim, the TFR in 1996 was 8.51 and for Sephardi/Mizrachi Haredim 6.57. These statistics have profound import for the future of Israel including significant demographic implications[3].

In sum, early marriage reflects the debate about priorities and values. Jewish sources do have something to say about swinging the pendulum back to earlier rather than later marriages. But that is for a separate responsa.

Judaism places great value on marriage: it is as if a person becomes “complete” only through marriage. What is considered suitable age for marriage? Well, it's never too late. But can it be too early.

Let's keep in mind that what is considered marriageable age is determined by sociological, economic and historical factors. Overall, the average age of marriage used to be much earlier in a person’s life – often coinciding when the young man or woman would be of legal age and economically responsible.

In medieval Europe marriages were often entered once men had economic possibility to sustain a family and women once they reached reproductive age.

When is a child considered an adult? According to Jewish law, a boy is considered a minor until he has reached the age of thirteen years and one day.  In order to be considered a man (“ish”) two pubic hairs need to have appeared. If for some reason that hasn’t happened yet, then his change of status to “ish” is delayed until the physical evidence of two pubic hairs have occurred. (Niddah 46a; Maimonides, Mishne Torah, Hil. Ishut 2:10, Shulchan Aruch, Even Ha-ezer 155:12).

For a girl too two pubic hairs need to be visible then at the age of twelve she is considered an adult. (Niddah 46a, Maimonides, Mishne Torah, Ishut 2:1).

So far the formal requirements. But What age is considered a good age? The Talmud in Kiddushin 29b seems to think anyone over the age of 20 and still unmarried is cursed. That would be bad news for the New York Singles community but Torah study is a valid excuse to delay marriage yet nobody should remain unmarried. Celibacy is not a Jewish virtue.

The Talmud debates how early one’s children can marry: on the one hand marrying off a young child before he/she reaches puberty is considered displeasing in the eyes of God. This is also the opinion held in Yevamot 44a where it says “If he, for instance, was young and she old, or if he was old and she was young, he is told, 'What would you with a young woman'? or 'What would you with an old woman'?

But another opinion held that it is meritorious to do so but only if the child is just before the age of puberty. (Sanhedrin 76b).

In the Babylonian Talmud, tractate Sanhedrin 76a it is also discouraged to marry off a young daughter to an old man: “Do not profane your daughter to cause her to be a whore; Rabbi Eliezer said: This refers to marrying one’s (young) daughter to an old man.”

On the other hand, children were often betrothed at a very young age continuing to live in their respective families until they reached majority and then married.

Yet, already in the Middle Ages, rabbinic opinion was strongly opposed to child marriages continuing the concerns already voiced in the Talmud and reflecting the changing sensibilities. Child marriage as such is also prohibited or strictly regulated by law in many countries and Jewish law in such cases falls under the rule of dina d’malkhuta dina “the law of the land is the law”. In the United States the legal age for marriage is governed by marriage laws of the different states, varying from 18 - 19. Marriage where one or both parts are younger need parental and/judicial consent.

I haven’t heard of any rabbi, regardless denomination who would be willing to officiate at the wedding ceremony involving minors and even if the law of the country allows it most rabbis would exercise extreme caution.  

The issue of child-marriage really revolves around the definition of a child. There is the joke about when life begins when a priest, minister and rabbi were speaking. The priest says life begins from the moment of conception. The minister says from the moment of birth. The rabbis says, ‘when the kids move out and the dog dies!’ As with almost all jokes, there is a level of truth here.

 

When is a child no longer a child? In the secular world there are three definitions. First is when they can get their drivers’ license (16-17 years old). Second is when they can vote (18 years old). And third is when they can hold property and legally drink (usually 21 years old). Society determines when a child is no longer a child. Jewishly, biology determines when a child is no longer a child.

 

According to the Talmud, when a child shows a couple of pubic hairs in the genital region, s/he is no longer a child. Simply put, when the body shows the external hormonal signs that it is ready to reproduce, the child is considered an adult. Of course, this happens when the boys are about 13 and the girls about 12. Naturally, Jews created a name for reaching adulthood: bar or bat mitzvah – the age of maturity when a boy or a girl is considered an adult and therefore responsible for fulfilling the mitzvot on their own. (On a side note, I doubt anyone ever considered today’s bar/bat mitzvah celebration as a recognition that their son/daughter has a pubic hair!)

 

Clearly, today we would be foolish to consider a 13-year old an adult. In fact, it appears that our brains do not fully develop until we are late into our 20’s. Perhaps we should change our Jewish definition of adulthood to mean exactly that. After all, our Jewish definition of death has evolved from the death of the body (i.e., the heart stopping) to the death of the brain (i.e., brain death). Maybe in the definition of what is an adult should evolve from body maturation to brain maturation. It would not be unreasonable.

 

13 year olds do not have the capacity for living as a married man or woman. Frankly, it seems to me that anyone who wants their child to marry at 13 is looking for a financial advantage. There are societies today throughout the world who peddle in child marriage. I am sure that in our history as Jews we did the same thing. And it was probably done to continue the family before the child died. After all, 13 years old was about the first third of life and, technically speaking, it was an appropriate time to get married. Families would bargain, dowrys would be set, contracts written and a marriage arranged. I certainly hope that no Jewish families do that today at 13 years old but I am quite sure that arranged marriages to take place at a future date still take place.

 

Child marriage is an idea whose time has passed. It has no place today and those who advocate it have another agenda.