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If a same-sex couple divorce, do they need a get?

Rabbi, I have a problem

    Question: I have some friends who would like to get married in a same-sex ceremony in a synagogue. But they wonder if the marriage failed, would they have to obtain a get?

    Rabbi Naftali Brawer

    Naftali Brawer is the CEO of the Spiritual Capital Foundation.

    The answer is that no get is required. To understand the function of a get one must first appreciate the status of what is known as kiddushin, betrothal. Kiddushin comes from the root k-d-s-h from which we get the word kadosh meaning sacred. Sacred is something particular that is set apart from the whole.

    God uses the term kadosh when describing the children of Israel as a sacred nation (goy kadosh), highlighting their separateness from other nations, and the prophet Isaiah hears celestial angels describing God as the ultimate kadosh as he is utterly Other.

    In the context of marriage, this separating or "othering" occurs when the groom places a ring on his bride's finger. With this act he declares that she is mekudeshet, often translated as consecrated, to him and to him alone.

    Prior to that moment, the bride is free to choose whomever she desires to marry but with the gift of the ring the husband acquires, as it were, her freedom.

    From that point on, she is legally separated from other men with whom she may not cohabit. Practically, the husband is also prohibited from cohabiting with other women, but that prohibition is the result of a later, rabbinic enactment.

    Biblically speaking, the husband is free to practise polygamy as is evident from the marriages described in the bible. Polyandry is never permitted in the Bible.

    As unpalatable as this may be for those of us who believe in equality as the basis for marriage, there is no getting away from the technical halachic reality, which is that with kiddushin a husband acquires his wife's freedom, at least in so far as it extends to cohabiting with other men.

    And since it is the husband alone who has acquired her freedom, it is only the husband who can return her freedom by giving her a get.

    This inherent imbalance of power can unfortunately give rise to terrible abuses where a recalcitrant husband withholds a get as a bargaining chip in a divorce settlement or out of sheer malice and cruelty.

    However, since the Torah does not recognise same-sex marriage, there is from a halachic point of view no kiddushin.

    Neither party can be said to have acquired the freedom of the other. No one is halachically bound in such a relationship and so there is no need for a get to release them.

    Rabbi Jonathan Romain

    Jonathan Romain is rabbi at Maidenhead (Reform) Synagogue.

    Whereas some questions to this column ask about issues that could have been raised 50 years ago - such as about circumcision or kashrut - this one would have been inconceivable until very recently. It reflects both the fast-changing social trends and the need for religious thinking to respond in a way that is both principled and sensitive.

    There is no doubt, of course, that the Bible condemns homosexual sex as an abomination. For those who take the Bible literally, this may be the final word, but for Progressive Jews there are two ways of dealing with those verses that mean a different interpretation is possible.

    One is to remain within the integrity of the text and say that it refers not to those who are homosexual, for whom sex is permissible, but to heterosexuals who engage in homosexual activity and therefore go against their own nature.

    The other is to admit that the Bible is a mix of divine revelation and human perception and it is our task to distinguish between the parts that are eternal and those that are time-bound.

    Whereas the biblical writers viewed homosexuality as perverse, we now know it is natural to people who are born with that sexual orientation. In religious terms, they are created homosexual by God and being gay is divinely sanctioned.

    Once this has been accepted, there is no reason why two homosexuals should not fall in love and wish to establish a marital union. In this case, Judaism should applaud those who wish to make a public commitment and establish a stable loving home, just as it does for heterosexual couples.

    This should then be given the same documentation (a ketubah) and ceremony (eg chupah) as with any other marriage. There are those who may feel uncomfortable with this because they are not used to it, but emotional reactions should not be allowed to cloud logical conclusions.

    It follows equally that if a marriage has been made both civilly and Jewishly, then if it ends, it should be unmade both civilly and Jewishly. Thus a get is needed to undo the ketubah, whoever the couple.

    It may be that some of the wording has to change slightly. The ketubah will refer to the two partners by name, rather than describe them as bride and groom, but the principle remains: a Jewish marriage needs a Jewish divorce.

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