דבק — Dabaq
A Field Guide to Marital Reality
In chapter 19 of the Gospel According to Matithiyahu, Yahushua departs from the Galilee and enters Judea, which is ruled by Herod Antipas under Pontius Pilate. Yahuchanon the Immerser had been killed for publicly condemning Herod’s unlawful marriage to Herodias, and there now exists precedence for a political trap. If the Pharisees ask Yahushua to constructively condemn Herod’s marriage to Herodias in the public eye, they can expect Herod to move against Yahushua. Great crowds are following him, and he was teaching as he usually did.
So, the Pharisees approach Yahushua in front of the crowds and ask, “Is it lawful for a man to separate from his woman for any reason at all?”
This was not asked in Torah vacuum, either. By the first century, Jewish discussion surrounding Deuteronomy 24:1’s “uncleanness” qualifier for the divorce (“because he has found in her, ‘ervat devar’”) was under serious debate. The House of Shammai interpreted the phrase narrowly, limiting the qualifying reasons to cases of sexual immorality only. In contrast, the House of Hillel applied a broad interpretation, leading to what is now called the “burnt toast” divorce (“spoiling his dish” per Mishnah Gittin 9:10). The question was asking him to weigh in on an established, public controversy with the ulterior possibility of him offending Herod (Josephus, Antiquities 4.253).
‘Ervah’ is the key phrase, and this has something to do with sexual misconduct or something proximal.
Note this upcoming drift: the then-unborn Rabbi Akiva (c.50-135 A.D.) eventually says, “He may divorce her even if he [merely has] found another woman who is better-looking than her.” Divorce was growing continually more permissive (sound familiar?) in the Second Temple period. Akiva was focusing on the line “finds no favor in his eyes,” and using that as justification. This naturally arises from considering motivations and methods. Regardless as to whether this was exactly Akiva’s motivation, constructively, if a man can simply get upset with a woman, that burden is so low and commonly encountered that a perceived opportunity with a more attractive woman can cause a man to provide that minimal, unjust cause – or fabricate an accusation, if he might be believed improperly – by which he can discard the former for the new.
Josephus himself practiced the new permissive law, writing that being displeased with her behavior is sufficient justification. Of course, if everything is justification, no justification is actually required. That’s the controversy. It was by no means a fringe idea.
It is prudent to point out that neither Hillel nor Shammai were concerned about another woman, whereas Akiva would be. Akiva’s allowance cuts against the command to keep marital duties intact upon the taking of a second wife. A lawyeristic way to circumvent this would be for a man to invoke Hillel or Shammai to first justify the separation, then marry the woman who has caught his eye. This still ends with duties owed to the first woman being improperly denied. This upcoming ruling by Akiva is therefore the most complete and precise target of Jesus’ clarification of marriage law in Matthew 19. What God has joined, a superior beauty, a lack of affection, a ruined meal, or common household strife does not authorize a man to separate.
The resulting controversy from Akiva’s position is that “finds no favor” is used to override the need to determine proper cause (ervat devar), which means that ervar devar is treated as mere surplusage in the statute. Such a move is inexcusable, and the progressive debate itself strongly suggests that this was not the original interpretation of the statute and there is no compelling reason why that burden of justification should cease to control. If mere preference can overrule a burden of justification, there is no burden of justification at all.
This brings us back to the root of the question: (rephrased) “Can a man lawfully separate from his wife for any reason – or no reason – whatsoever?” The expected range of replies ranges from:
Minimal: No desire to keep the woman (motivation to invoke the nominal)
Nominal: She is displeasing to the man (Hlllel)
Maximal: She must commit adultery or something similarly grave (Shammai)
Yahushua cites Genesis 1 and 2 as cause for the question itself, motivation for the institution of marriage, and as a point of legal origin that informs the Torah as given to Moses.
If we assume that every statement in this passage is globally true, meaning we let Yahushua give the full doctrine in compact form, here is what we see:
1) The issue must be answered while standing on Genesis 1, where Yahuwah makes humans male and female, telling them to be fruitful and multiply, filling the earth
2) The foundation also covers the conjugal creation of Eve from Adam
3) The direction of logic is, “for this reason shall a man (generally) forsake his parents (become his own legal head), bond (dabaq) to his woman, and the two shall become bodily-joined (basar echad, or “one flesh”)
4) Due to the above three points, because they are no longer separate, but joined (“no longer two, but one flesh/meat”), what Elohim has joined together, no man is permitted to separate.
The real work is done is point 4, where Yahushua says that marriage is something God accomplishes as a permanent state unchangeable by mankind, at least in terms of legal-moral legitimacy. This echos John’s criticism of King Herod, where he denied the validity of Herodias’s divorce and insisted that she was still married to Phillip, Herod’s still-living brother.
This also establishes directionality of definition:
When a man:
1) Achieves legal majority
2) Bonds to a woman
3) Has intercourse with her
4) No human can separate them because God is presumed to have joined them
Whether true or not, at least as a legitimate procedure of law, no human of any office can separate or invalidate a marriage. Herod was a magistrate, and he still could not validly marry Herodias.
To explain point 3, we need to read 1 Corinthians 6, where t says, “Do you not know that he who is joined (kollao / dabaq) to a prostitute becomes one body (flesh, sarx / basar) with her? For as it is written, ‘the two shall become one flesh.’ But he who is joined (dabaq, throughout the Hebrew scriptures in this context of spiritual joining) to the Lord becomes one spirit with Him?”
So, when Yahushua uses this framework, a more conservative listener might have expected him to say that adultery gives reason to end the marriage. If this is true, why didn’t he say this, and why did his disciples say, “If this is the case between a man and his woman, it is better not to marry?” This should have been expected by anyone who knew his zeal for the Law (we’ll revisit this).
Look at what he said in sum, and we’ll see which types of “sexual immorality” may be proper cause.
Point 4 is unqualified: none may separate. If that is the case, a couple truly joined by God can not get a divorce even for adultery. So, which is it?
The key realizing that porneia (usually translated ‘adultery,’ ‘sexual immorality,’ or ‘fornication’) is not moicheia (‘adultery’). Porneia is a broad category that may or may not include moicheia. We must deduce whether moircheia is a species of porneia using the Biblical texts.
If the bond is truly indissoluble (Point 4), then adultery does not end the bond.
However, we can ask, “Whom does God not join in marriage.”
Well, 1 Corinthians 6 gives us one answer: marriages with prostitutes.
Leviticus 18 and 20 list unlawful degrees of kinship.
Leviticus 20 and Deuteronomy 22 ban adulterous unions.
Leviticus 18 and 20 ban men from marrying or even sleeping with other men.
Exodus 22 and Leviticus 18 and 20 ban bestiality.
Deuteronomy 7 bans marrying foreigners because they were in other religious systems.
We have case law from Ezra 9-10 and Nehemiah 13 that men ought to divorce these foreign and/or idolatrous women. By logical extension, they ought to divorce other disallowed partners, and this would not violate Yahushua’s words, because God’s law delegitimizes these unions. They are not valid marriages.
Yahuwah does not partake in sin; therefore, He does not join what He calls an abomination or to any other degree disallowed. This means we already have many reasons to divorce according to Matthew 19, and assuming that moicheia is part of porneia despite the obvious conflict with “what God has joined, let not man separate,” produces the following contradiction: apparently, moicheia is the means of legitimizing separation of what Jesus says shall not be separated and what Paul says is ended only by the death of the man. In other words, moicheia is neither death nor due process. This tension is cleanly resolved by removing adultery (moicheia) from the assumed umbrella category of fornication (porneia).
The consequences are subsequent in the chapter. Yahushua says, “And I say to you, whoever divorces his woman and marries another, except for porneia (not moicheia), and marries another, commits adultery.” This is a direct callback to Exodus 21:10-11, which reads, “If he takes another woman to himself, he shall not diminish [the first’s] food, clothing, or marital rights; and if he does not do these things for her, she shall go out for nothing.” This is significant because the second woman is not banned, which means God has presumably joined them and we should treat the union as fully valid and protected. It also means that he must refuse obligations to the first to set her free from the house; and she otherwise has no means of separation from that man. Yet, there is no affirmative right to remarry anywhere in the Torah so long as the man lives, which is why Paul writes this in Romans 7: “by the Torah, a married woman is bound to her husband as long as he is alive, but if her husband dies, she is released from the law that binds her to him.”
(It is worth mentioning here that putting one’s wife away necessarily deprives her of provision and intimacy, which is why the reverse is held as grounds to physically separate: the man is already neglecting her, so why should she remain?)
The consequences are subsequent in the chapter. Yahushua says, “And I say to you, whoever separates from his woman and marries another, except for porneia (not moicheia), commits adultery.” This calls us back to Exodus 21:10–11, which reads, “If he takes another woman to himself, he shall not diminish [the first’s] food, clothing, or marital rights; and if he does not do these things for her, she shall go out for nothing.” The second woman is not prohibited; instead, the man’s continuing obligations to the first are expressly protected. Plurality therefore does not itself dissolve the first bond. What can fail is the man’s will to perform the duties created by that bond.
This helps clarify what Yahushua means by hardness of heart. Hardness is not the mere existence of another woman, but rather the refusal to remain faithful to the duties created by the standard covenant — the unwillingness to provide, reconcile, endure, or do what righteousness requires when desire points elsewhere. Mosheh regulated the resulting separation because men with hardened hearts would in fact put women away; he did not thereby establish separation as the good toward which marriage was ordered. How can joining be ordered toward separation, a permanent bond intended for its own dissolution? Neither makes sense. Instead, this is a remedy within a framework of permanence, not a lawful process for ending permanence. Torah itself can even remove a man’s ordinary ability to put a woman away, declaring in a particular case, “He may not separate from her all his days [if he falsely swears that she was not a virgin upon marriage to him]” (Deuteronomy 22:19). Separation is therefore a remedy operating within a damaged situation, not evidence that the original bond was designed to be disposable. However, that remedy does not necessarily involve remarriage, which is an assumption read into the text. These are distinct legal acts and no explicit power to dissolve the marriage is ever given to either the man or the woman. Rather, there are only descriptions of circumstances where remarriage of the woman occurs, which appears to validate this practice, and this controversy is best handled later.
The important point for plurality is consequently not whether a man takes another woman, but whether he thereby violates the rights and duties already owed to the first. Torah condemns the neglect; it does not condemn the plurality. This brings us back to the reaction: If a man has to keep his woman or be at fault for the marriage ending, why would any God-fearing man take that risk and burden?”
The answer: “Not everyone can receive this saying, but only to those to whom it is given; because there are eunuchs who have been made so from birth, eunuchs who have been made eunuchs by men, and there are eunuchs for the sake of the Kingdom of Heaven. Let the one who is able to receive this receive it.”
In other words: “The people who truly receive the words of God can accept this teaching. Be celibate if needed.”
The reaction of the disciples heavily implies an unforeseen answer. Compare this answer to Hilel and Shammai.
Hilel: You can divorce her if she fails or annoys you.
Shammai: You can only divorce her if she commits sexual immorality.
Deduced / proposed answer: You can’t divorce her unless she was never your lawful wife in the first place.
You can see why this would have shocked people. This was outside the normal range of interpretations at that time.
To support this idea, Paul writes in 1 Corinthians 7, “To the married I give this command (not I, but the Lord): A wife must not separate from her husband. But if she does, she must remain unmarried or else be reconciled to her husband. And a husband must not divorce his wife.”
This gives us three categories of post-marriage women while the man is alive:
1) Intactly married
2) Separated but sexually unavailable to anyone else
3) Rightfully divorced because the marriage was unlawful (lawfully annulled)
For a woman in categories 1 and 2, any sexual contact with a man besides her husband is adultery. This brings us back to Deuteronomy 24, the statute many read to permit divorce:
If a man marries a woman who becomes displeasing to him because he finds something indecent about her, and he writes her a certificate of divorce, gives it to her and sends her from his house, and if after she leaves his house she becomes the wife of another man, and her second husband dislikes her and writes her a certificate of divorce, gives it to her and sends her from his house, or if he dies, then her first husband, who divorced her, is not allowed to marry her again after she has been defiled. That would be detestable in the eyes of the Yahuwah.
If divorce were a positive power of the man, why would this be abominable? They would be lawfully dissolving marriages, and this would be a specific imposition that dissolution prevents lawful remarriage, but there is a better fit: the model we deduced from the scriptures.
This is the ‘ervat devar’ passage referenced earlier. The question is, “what unclean thing must a man find about his wife to validate his divorce and her remarriage?”
The answer we built is, “she must have been forbidden for him to marry in the first place.”
Let’s use a few examples.
1) She is another man’s wife.
1. The ervat devar here is that she is unclean to him, and he divorces her to repent of what he has discovered to be adultery.
2. She is freed from the assumed husband.
3. She goes and marries another man.
4. That man provides just cause for the divorce (she is married to yet another, or she is his relative, etc.)
5. The first man takes her back despite her having the same pre-existing disqualification
6. This woman must have been defiled by at least one of the two men. If she belongs third, prior man, the two covered by the statute have each committed adultery with her.
The key here is that marriage is not presumptively valid just because a wedding was witnessed.
2) She is the wife of a man’s father.
1. The ervat devar here is that she is unclean to him, and he divorces her to repent of what he has discovered to be adultery.
2. She is freed from the assumed husband (her stepson)
3. She goes and marries another man.
4. The rightful husband puts her away.
5. The first man (stepson) takes her back despite her having the same pre-existing disqualification
6. This woman still belongs to the original man (the father). Nothing in the sequence has removed the original disqualification: she remains the father's woman. Therefore the first man's taking her back cannot become lawful merely because another purported marriage and separation intervened.
Paul explicitly calls this porneia in 1 Corinthians 5.
3) The man hates her and alleges falsely that she was not pure when they married (Deuteronomy 22)
1. Man 1 hates his woman and falsely alleges that she lacked the required sexual purity when he took her.
2. Contrary to Deuteronomy 22's judgment, he nevertheless puts her away.
3. TShe becomes Man 2's woman.
4. Man 1 attempts to take her back.
5. The original fact remains unchanged: she was lawfully Man 1's woman, and his false accusation never altered that status.
6. Her subsequent nonvirginity cannot establish that either purported marriage was invalid, because intercourse within the first relationship itself explains her nonvirginity.
Note that sexual intercourse cannot, by itself, be identical with lawful marriage; nor can nonvirginity, by itself, establish that a woman is unlawfully joined.
Exodus 22:16–17 is the key:
“If a man seduces a virgin who is not betrothed and sleeps with her, he must pay a dowry for her to be his woman. If her father absolutely refuses to give her to him, he shall pay money equal to the dowry for virgins.”
This disproves the simple claim that sexual intercourse is necessarily marriage. Torah expressly contemplates intercourse with an unmarried virgin followed by her father's refusal to give her to that man (Exodus 22:16–17). She therefore remains marriageable despite no longer being a virgin. Accordingly, nonvirginity alone cannot invalidate a subsequent marriage, or Torah would create a class of women eligible for marriage whom no man could lawfully marry. That would be an absurd result.
Further, because the Law gives no clarification about how to treat these women differently, we have to presume that the same rules apply. In other words, we have no way of knowing that the second man to sleep with her does not trigger the same obligations except that the bride price is only paid for virgins. So, if her father refuses the first, and a second man seduces her and her father does not refuse, she is obligated to be that man’s wife. If this is not the case, scripture does not give us any explicit or implicit instructions to do otherwise.
To be clear, under a general model of law and jurisprudence, if the act of sleeping with an available maiden produces a duty to marry her if she is a virgin, the lack of virginity must be expressly stated to change the procedure for those rescued from its originally-imposed remedies by the father’s ability to annul the obligation.
Due to the lack of clarifying statutes, we cannot reasonably infer that the father's refusal removes all consequences from subsequent intercourse. Such a reading would produce the absurd result that the first man incurs an obligation to take responsibility for her, while every subsequent man may use and abandon her without comparable obligation merely because the first man rendered her nonvirgin. This would effectively create a class of unmarried women whom men could sexually use without the marital consequences imposed upon the first man, contrary to Torah's prohibition against causing a daughter to become a harlot.
In this case, the Deuteronomy 22 statute does not generally apply. It would, however, presumably apply if she falsely presented as a virgin, which would be falsely evidenced by the man paying a duplicative bride price. If she represents herself honestly, no bride price is paid by the man marrying her (it was paid by the first) and the current man has no non-virginity exit claim upon marriage.
The Finding: Marriage is a Paperless Status
By scripture alone, we can not insist on the production of a marriage certificate to prove the legitimacy of a man’s claim to exclusive marital possession of a woman because Yah never gave Moshe such a statute to legislate.
Search the scriptures. You will find divorce certificates, but zero mention, let alone a requirement, to certify or record a marriage, nor does any human being need to witness the marriage, nor is there any requirement of ceremony, notice, process, or proclamation of status.
This begs the question: How do we know that marriage has occurred?
Scripture does give us implicit and explicit routes.
Explicitly, if a man seduces a virgin, he must marry her.
By deduction, this extends to unbetrothed, annulled maidens.
Implicitly, he can simply forgo seduction and propose marriage.
Explicitly, he must consummate the marriage whether or not there was a proper betrothal.
Explicitly, a man can expediently marry a widow by taking her into a tent or other dwelling (David did this at least twice).
The former is because, explicitly, marriage is defined in Genesis 2:24.
For this reason a man shall leave his father and his mother, and be joined to his wife; and they shall become one flesh.
Now, this is the operative principle behind marriage, not the means of creation. A man cannot lawfully leave father and mother, be joined to his sister, and become one flesh with her to override the Mosaic statutes on incest. The law is greater than the man. Therefore, any man who does this has sinned and not formed a marriage. This is fornication, which prevents marriage. God does not join the two.
Back to the paperless component of the status: if there is no paperwork proof to establish that marriage has occurred, we must look at the facts of the woman’s history.
If a woman marries as a non-virgin and the assumed husband keeps her, and another man appears saying that she is his wife, how does he prove his case?
Let’s suppose the following history as verified by multiple witnesses to her life:
1) She is seduced as a virgin and the man refuses to marry her.
2) This happens repeatedly.
3) The tenth man loves her, makes a home with her, and lives with her for years, engaging in sexual activity with her, seeing her as his wife.
4) She leaves that man, goes to another land, and is betrothed to another man.
5) They have an overt, ceremonial marriage.
6) Some time later, that prior man finds her and claims that she is his wife. He has no paperwork.
Whose wife is she?
How do we know?
The claimant cites Genesis 2:24 and adds, “I left my parents’ house, got us our own place to stay, built a life with her, relied on her, and was relied on by her. We planned for the future and enjoyed sex from the beginning of our years together.”
The claimant produces a few witnesses and records of their co-habitancy and communications involving relational details to include longstanding sexual activity and family planning.
How do you think Jesus would judge the matter?
The defendant’s paperwork proves that a ceremony happened.
It does not prove that a lawful marriage occurred, only that it was presumed lawful.
The Torah explicitly allows review of the legitimacy of a marriage. In other words, a marriage presumed lawful in the absence of contrary evidence does not become irrebuttably lawful merely because no one challenged it when it was formed. Its legitimacy remains subject to the underlying facts.
Both claims require adjudication by experts in the Torah.
Men 1–9 demonstrate why sex isn't dispositive.
Man 10 demonstrates why function becomes relevant evidence without itself being dispositive.
Man 11 demonstrates why formal ceremony isn't dispositive.
Marriage is therefore not proven by any single artifact, ceremony, sexual act, or assertion. It is a legal status inferred from historical facts and judged according to Torah. A purported marriage may be presumed lawful where no contrary facts are known, but that presumption cannot survive proof that one of the parties was legally unavailable when the purported marriage was formed.
Whatever the right answer is presumed to be, incentives analysis tells us the consequences of standardizing each answer, while remedy analysis asks which result Torah actually authorizes.
Ruling A: The history of the claimant is sufficient to demonstrate de-facto marriage, and Genesis 2:24 insists that de-facto marriage is, in fact, de-jure marriage.
Ruling B: De-facto is insufficient, and despite there being no explicit requirement for the certification of marriages to render them legally enforceable, the court finds that failure to follow such a process denies standing to assert, by any combination of facts, that the de-facto marriage should be lawfully binding.
Ruling A says that the claimant only erred in not securing a certificate.
Ruling B says that the woman is free to remarry because she avoided the certificate and the defendant may be wholly protected by that paper and not any activity, as only the certificate and its lack thereof are informative.
Ruling C would be that both activity and the certificate are required, but then this is split by whether the claimant can get that certificate the retroactively apply to his activities. In other words:
Ruling C1: The claimant can certify the marriage either himself or by successful suit.
Ruling C2: The claimant cannot obtain a certificate for marriage to that woman because her marriage is already fully recognized.
If Ruling B or C2 are applied as general rule, either by precedence or legislation, the marriage process is reduced to the obtainment of paperwork and perhaps attached statutory solemnization.
If Ruling A is applied, accountability to activities is held in priority.
If Ruling C1 is applied, either the man can use A and his own signature to solve the problem, or he at least has grounds to sue for recognition.
Let’s flip the script the show the other side.
Suppose that Man 10 lived with her for the same time, and the woman wanted the relationship to last, but the man said, “Actually, I never certified this marriage. Therefore, you were never my woman. I have no marital obligations toward you. Get out.”
If Ruling B is true, her claim can fail for precisely the same reason his did.
If Ruling A is true, neither party can escape the marital status merely by denying it after having established it through marital conduct.
Formalism without a Scriptural formality doesn't protect marriage. It creates a means of escaping marriage.
Marital conduct creates enforceable status and duties. It is imperative that we properly define its formation. The same conduct can produce different legal consequences depending upon the preexisting status of the parties. Therefore, before determining whether subsequent conduct formed a marriage, we must know both what conduct establishes marriage and whether the parties were legally available to one another when that conduct occurred.
Now, for the thesis of this whole work:
If Relationship A and Relationship B are materially identical in everything Scripture associates with marital life — lawful availability when formed, sexual activity, common household, intended or presumed permanence, reciprocal reliance and duties — but somebody says A is not binding because the church/state did not solemnize or certify it and B is binding because the church/state did, then the legally dispositive variable is not the relationship. It is institutional recognition.
This begs the question: in this model, does God join, or does an institution join?
Another way of asking this is, “Is it about two becoming one by flesh, or by document?”
If the answer is document, then the institution has acquired a power that Genesis attributes to Elohim. If the answer is flesh, the document can still perform an important evidentiary function in that it can witness, memorialize, and help prove the status, but it cannot be what creates the status.
This is analogous to Matthew 21:24, where Jesus asks, “The baptism of Yahuchanan was from what source, from heaven or from men?”
The Baptism of John was authorized by heaven. Therefore, no ecclesiastical source or validation was needed for him to begin that practice. Likewise, if marriage is authorized, executed, and recognized by our Father in Heaven, there need not be an ecclesiastical or secular origin of its formation.
If God is, indeed, the One who joins a man and a woman, the document cannot be dispositive of its execution. Indeed, a document of earthly origin cannot simultaneously be of divine origin. That is, no earthly agent can supply the divine act that it purports to certify, nor can anyone directly witness that divine act as a fact. Rather, we can only establish the underlying facts from which Scripture tells us that Elohim has joined them, and scripture supplies no standard of documentation.
Order of Operations
Careful attention must be paid to the exact, ordered definition of marriage given in Genesis 2:24.
It reads,
1) For this reason (Adam’s proclamation that Eve was bone of his bone, flesh of this flesh)
2) Shall a man (or men generally) forsake his mother and father
3) [He then shall] be joined to his wife
4) [And then] they shall become one flesh
These are presented in Chronological order.
Whatever dabaq means in part 3, it is separate from and comes before the basar echad part of the operation. Given what was already unpacked about this term, we can tell that dabaq is about a bond that presumably pre-exists sex, or at least definitely pre-exists ordered sex.
We see a form of this in betrothal. The two are not yet one flesh, but the woman is unavailable to anyone else. Therefore, virginity itself is not dispositive of general marital-sexual availability. Conjugately, sex is not dispositive of marriage.
Revisiting 1 Corinthians 6, we see Paul describe sex with a prostitute as becoming one flesh (some translations use “one body”) with her, yet no one believes Paul was saying that marriages are formed with each client. Such a thing would not be possible, as discussed above.
This also drags in the history of clandestine marriage. Before the Council of Trent (1545-1563), western canon law could recognize clandestine marriages by consent of the parties rather than the subsequently-required ecclesiastical form, meaning that the controversy of exactly what made a marriage stood for over 1500 years since the Ascension, and it was only resolved by adding a standard that the Church could not find in the Torah or early church history; otherwise, the issue would have been resolved in the earlier centuries. This is not to say that the Catholic Church has a controlling interpretation on the Torah – it does not – but this history does show how ambiguous the situation is given a lack of statute while simultaneously discounting any cultural practice is dispositive of the union. If those practices were sufficient, the Council would have said so. Instead, they resolved the controversy with a new uniform process, risking, of course, the very real consequences of denying those previous, more natural forms moving forward for the sake of a traceable process. For better and worse, their process is overt and reviewable.
In contrast to this, the Torah does hold that if a virgin is seduced and her father does not absolutely refuse the suitor, she is to be married to that man. This tells us that the truth of the standard is closer to this practice than reliance on overt ecclesiastical – let alone secular – process at the cost of recognizing the Torah cases or, to a lesser extent, the more natural informal cases of pair-bonding.
There exists between these models and methods a sliding scale of formality that should be weighed toward what the text provides, and we can test various positions by scriptural deductions.
At one end is pure natural/formal minimalism: relational bonding and sex are enough. But Sha'ul destroys the crude version of that in 1 Corinthians 6 because basar echad can occur with a prostitute without thereby making each sexual encounter a lawful marriage.
At the other end is institutional formalism: some authorized human procedure makes the marriage. But then you immediately have the authority problem you've already developed: where did Yahuwah give the institution the power to make its procedure constitutive?
Between these, and heavily toward the natural/minimalist side is one way to read Genesis 2:24 that prescribes order:
1) A man desires a woman
2) He should be a functional adult
3) He should have developed a bond with her
4) Then, the relationship can be consummated in an ordered way if the marriage would be lawful
Point 3 is effectively betrothal, either exactly or the cause of betrothal (“what God has joined”)
Point 4 is the undeniably marriage obligation threshold, pending annulment, as consummating a betrothal forms a marriage. This is the post-joining one-flesh (sexual) union.
It is also worth nothing that “one flesh” also carries a connotation of being united in body as well as in kin. Family formation comes from childbirth and extended family social function alike. If a man is spending holidays with the family of the woman he loves, the safe assumption is that she is maritally unavailable, especially given how likely sexual contact is once this becomes a routine occurrence.
In Matthew 19, if Jesus was speaking in Hebrew, it would have been most natural for him to use that same root to describe God’s joining: ”asher hidbiq Elohim.” The Greek makes this uncertain, but even the Greek uses a more similar concept to dabaq than basar echad, the point being that bonding is evidence of a God-joined pair, not the sex. In other words, what God has joined is known by something pre-sexual in a couple. This matches the statute of seducing a betrothed virgin, which renders it equal to normal adultery. This is because the pre-ceremonial state of bondedness that correlates with betrothal is already a God-joined state. Whether that bond causes betrothal in more a romantic formation or the betrothal exists to facilitate bonding in an arranged marriage, the betrothal is the legal mechanism that makes the man equally secure in the woman’s fidelity by providing the same protections to include the same punishment for her infidelity as though they were fully married. This correlation makes betrothal evidentiary but not constitutive of the dabaq step of the process, and this bonded status is what makes her unavailable to other men.
The legally operative pre-sexual relationship state following betrothal doesn't necessarily prove that Elohim has joined them, but the status gives legal evidence that a relationship exists which Torah protects as though the man's exclusive claim has already attached. In other words, there exists a point in a relationship where it should be presumed to have the same protections as a fully-ceremonialized, witnessed, notarized marriage. In effect, given modern western norms, if a ring could come out of the man’s pocket any given day, the woman is off-limits to other men.
The categories to consider are:
De jure/formal betrothal: “I am betrothed to this woman.” The status is overtly declared and therefore easy to prove.
De facto/informal betrothal: the relationship has substantially acquired the characteristics that formal betrothal ordinarily recognizes — exclusive commitment, intended permanence, established pair-bond, mutual understanding that they are proceeding toward marriage — even though nobody performed the conventional act announcing it.
The need to recognize informal betrothal follows from the same underlying principle expressed by verba de futuro: a sufficiently established mutual commitment concerning future marriage creates reliance and can acquire legal significance before consummation or ceremonial marriage. The commitment may be proved by words, but where no formal declaration was preserved, it may also be inferred from sufficiently unequivocal conduct.
More importantly: If formal betrothal and this relationship differ only in the formal announcement, where does Torah say that announcement is the legally dispositive variable?
Formal betrothal may establish the presumption of a protected bond immediately; informal betrothal requires the bond to be established from evidence. The difference is therefore principally epistemic rather than necessarily substantive.
There are four categories of betrothal:
1) Express and readily provable: “I will marry you.” Written message, public announcement, witnesses, recorded conversation, etc.
2) Express but difficult to prove: the same promise was privately spoken, but neither party can produce independent evidence.
3) Implied but provable: “When we're married, we'll live here.” “When we have children…” “Once we're married, you can stay home with them.” Repeated future planning whose ordinary meaning presupposes a continuing marital future.
4) Implied through conduct: years of exclusivity, household planning, financial decisions, family integration, turning down other opportunities or suitors, and other conduct intelligible only — or most naturally — as reliance upon an intended permanent union.
These categories differ by proof, but not necessarily by the bulk of the history of the relationship.
The lawyeristic escape hatch of, “I never promised,” is not substantially different from, “we never signed the marriage certificate.” If this defense succeeds as a general rule, the incentives become grotesque and damaging; people will be incentivized to make promises informally, implicitly, or secretly, accept the benefits of the other person’s reliance, and reserve the right to exist by carefully avoiding a statutory minimum crafted to be “safely” too high to “accidentally trap” people. The formula would exist so that people could invoke its absence as a defense – and now nobody needs to wonder, “why didn’t Moses tell us to record our betrothals or get marriage certificates?”
Absence of a prescribed form does not mean absence of a standard. It means the court must adjudicate substance from evidence rather than substituting an invented form for the substance.
Paperless does not mean lawless. Indeed, paperless marriage may be the most lawful way to handle the problem. Paper-based systems can create lawlessness except for the legal fiction that compliance with the prescribed process makes the resulting status lawful. Such systems depend upon the hope that the legal fiction will correlate with the underlying truth, while overlooking—or simply accepting—that people can use the process itself to obscure, escape, or deny that truth. A paperless system is therefore potentially the more honest and accountable system, provided adjudication remains accessible to the injured party. This is precisely what Mosheh’s Torah appears to construct: taken as a whole, its statutes make paperless marriage functionally lawful without ever prescribing a document that creates the marriage. In the end, a paperless marriage system, more so than any formal system, may be more likely to provide justice, ascertainable truth, and accountability than any system of what is essentially voluntary self-report – and thereby elective and legally forceful denial – of observable fact.
Application
Marriage, betrothal, and other qualifying bonded statuses are ascertainable, but there needs to be a uniform method – however non-uniform the many instances may be.
