Consent of Minor Girls to Marriage

• In Event: Consent, Concubinage, and Women's Autonomy

Abstract

There are several contradictory statements in the Babylonian Talmud concerning the legal ability of minor girls to consent, specifically to marriage arranged by the father or by guardians. According to Deuteronomy 22:16 a father may marry off his daughter to an eligible Jewish man, creating a marriage of biblical validity which can be dissolved only by the death of the husband or his giving a get. He is entitled to the money given from the groom for her betrothal and marriage while she is a minor (prior to 12 years and a day) or in her maidenhood (from 12 years and a day to 12 years six months and a day). The father is entitled to marry her off by money or document from birth (mKetubbot 4:4) and even conditionally before birth (bQiddushin 62a). A girl may be married off by sexual intercourse from the age of three years and a day (mNiddah 5:4). Apparently, the girl’s consent is not necessary if the father marries her off.
According to mYevamot 13:2, a girl married off by a guardian with her knowledge/consent may repudiate the marriage but without her knowledge/consent, there is no need for repudiation. Rabbi Eliezer states “the act of a minor girl is nothing” (i.e., she is not married). There is no agreement on what constitutes consent/knowledge versus understanding and responsibility or even if the girl’s act has legal repercussions. In contrast, in bQiddushin 81b, Rav Aha bar Abba said in the name of Rav (alternatively: Rabbi Elazar), that “it is forbidden for a man to marry off his daughter while she is a minor until she grows up and says I want so-and-so.” Given the contradictions, we must examine whether the latter statement is merely a moral recommendation or is it in legal conflict with the previous statements. This paper will investigate the Bavli’s accounts of reactions of minor girls to marriage and various rabbinic statements to determine if there was an expectation of informed consent by minor girls to marriage, including expectation of sexual relations.

Author

• Tirzah Meacham, University of Toronto