The Case
Lost and Found
Debbie and Joey were married less than a year when they realized that their ketuba was lost. Since Debbie did not remember ever storing her ketuba for safekeeping, the couple decided to review their wedding video to determine who was entrusted with the ketuba. The video indicated that Debbie’s mother had placed the ketuba on a small table at the time of the ceremony and it is very likely that it was left there unattended and was disposed of after the wedding. Although the ketuba was lost, a much more disturbing find was discovered upon study of the video. One of the witnesses of their kiddushin was Joey’s close relative. At this point it was evident that the young rabbi who officiated their wedding was incompetent, as the video showed that he never carefully chose valid witnesses prior to the marriage, but rather randomly picked two people to witness the marriage. Our Bet Din reached out to the rabbi, who admitted that since the witnesses did not object to the appointed role, he assumed that they were not related. With a very embarrassing situation at hand, the couple confidentially reached out to our Bet Din seeking a remedy for their problem. Do they need to remarry? If so, can it be done without a formal ceremony? Are the wedding blessings to be said all over again? Which date is to be written on the new ketuba, the day of their mistaken ceremony or today’s date?
How Should the Bet Din Rule and Why?
Torah Law
According to the ruling of the Shulhan Aruch a man is required to provide his wife with a ketuba at the time of their marriage. The ketuba is a document which details the primary duties a husband is obligated to his wife. It includes a monetary commitment from the husband to be paid to his wife in the event he passes on or in case of divorce. As with all legal documents, it is mandatory that a ketuba is dated accurately. The ketuba is given to the bride, and she customarily transfers it to her mother for safekeeping. If the ketuba is lost, the couple is required to obtain a replacement ketuba prepared by a competent halachic authority.
By Torah law, a man can only effectively betroth a woman in the presence of two valid witnesses. If, however, both witnesses are legally invalid, the marriage is rendered null and void. The overall requirement of a witness is that he may not be a relative of the bride or groom, and the two witnesses may not be related to each other. Additionally, a witness is considered invalid if he is a non-observant Jew. Generally,
all other males of age qualify; however, some restrictions may apply. Since many laws govern the type of family relation that disqualifies a witness, and likewise, what constitutes a non-observant Jew, only a competent halachic authority is to choose the witnesses for a wedding ceremony.
A rabbi officiating a wedding is required to designate two valid witnesses at the time of a betrothal, in order to deliberately exclude all relatives present that are seemingly potential witnesses. In instances in which a rabbi mistakenly designates a witness who is invalid, many halachic authorities disqualify the ceremony. Since two witnesses were already designated, albeit one is invalid, any potential valid witnesses present in the audience are no longer eligible as they were already excluded, and the marriage is rendered null and void. This view is widely accepted and is very effectively used to nullify a marriage in case an illegitimate child is conceived by a woman while she is supposedly married. After retroactively nullifying the marriage on account of an invalid witness, the child conceived from another man during the marriage interim, is not halachically viewed as illegitimate. Hence, the child is permitted to marry within the Jewish community.
Although the above view is widely accepted, nevertheless, numerous halachic authorities differ. Although two witnesses were already designated, since one or more were invalid, their designation is viewed as illegal and unacceptable. Hence, the valid witnesses in the audience that viewed the betrothal can effectively consecrate the marriage. Furthermore, in instances in which the rabbi initiated the appointment of the invalid witnesses and not the groom, some halachic authorities rule that it is not within the rabbi’s jurisdiction to effectively disqualify other potential valid witnesses that are present.
Although witnesses from the audience are not always able to view the transfer of the ring from the groom to the bride as required, nevertheless, the marriage is not necessarily disqualified. Since the ring is seen on the bride’s finger immediately after the groom gave it to her, some view this as sufficient testimony, and the marriage is binding.
In all instances in which a halachic debate exists whether a wedding ceremony was valid, when preforming the ceremony a second time the blessings are not recited. In addition, numerous considerations that are not within the scope of this article restrict reciting the blessings a second time.
In the event an original wedding ceremony is undisputedly disqualified, and a completely new ceremony is performed later, a new ketuba is also required. However, in instances in which an original wedding ceremony’s validity is questionable, legally, a new ketuba need not be written. Even so, it is still preferable to write a new ketuba. This ruling is applicable only if the witnesses that signed the ketuba are valid, otherwise, a new ketuba is always required.
While it is required by law to formally conduct a wedding ceremony in the presence of ten men, it nevertheless suffices to conduct a second ceremony in the presence of two valid witnesses.
Endnotes: Shulhan Aruch Eben Haezer 66:1, 3, Ibid 42:2, Shulhan Aruch Hoshen Mishpat 33, 34, Pithei Teshuva Eben Haezer 42:11, 12, Yabia Omer Eben Haezer 8:3:3-7, Rama Eben Haezer 42 end of 2, Mishpat HaKetuba vol. 7 pg. 524, Shulhan Aruch Eben Haezer 34:4 see Mishpat HaKetuba vol.7 pg. 523.
VERDICT: Newlyweds!!!
Our Bet Din conducted a private wedding ceremony for Debbie and Joey. Since one of the witnesses at their original wedding was invalid, a new betrothal was required. Nevertheless, since according to some halachic authorities their original wedding was satisfactory, we did not recite any blessings at the ceremony we conducted. Although a wedding ceremony typically requires ten men present to partake in the event, in this instance two witnesses present was sufficient. A new ketuba was written with the present date, since the original was signed by the invalid witness and is null and void.
Note: Halachic authorities from over a century ago implemented a system known as a duplicate ketuba. This system is practiced by many prominent Syrian communities worldwide and is used as well by the Chief Rabbinate of Israel. It is also being offered to our community by the Sephardic Heritage Museum and is under our Bet Din’s supervision. For further details, refer to the letter of endorsement in this edition of the magazine.
YOU BE THE JUDGE
Our Big Brother
Alan was the founder and 80 percent shareholder of a successful wholesale corporation. His two younger brothers Stan and Steve were each granted by Alan 10 percent of the company shares, on account of their years of hard work and dedication to the business. After decades of successful partnership, unfortunately, Alan suddenly passed on, and he left his assets and total net worth to his wife and children. Stan and
Steve, now in charge of the company’s financials, reviewed the accounting and detected a withdrawal of one million eight hundred thousand dollars back in 2017. The 1.8-million-dollar withdrawal was recorded by the company’s accounting as a distribution of profits to all respective shareholders. The funds were used to purchase a residential property in a suburban area. Much to the two brothers’ surprise they were listed as 2 percent partners for that purchase, as opposed to their respective 10 percent share. Stan and Steve notified Alan’s wife and children of the obvious error and requested them to correct the paperwork. When Alan’s wife refused to comply, Stan and Steve reached out to our Bet Din. They claimed they each owned an additional 8 percent of the property, as well as its present appreciated value according to their respective shares.
Are the brothers entitled to an additional 8 percent? Are they each eligible to 10 percent of the profits generated from the value appreciated?
How should the Bet Din rule and why?