Does Halacha recognize civil marriage?

Anyone legally betrothed must undergo a religious divorce process before he or she may marry someone else.

By SHLOMO BRODY
December 30, 2011 16:27
4 minute read.
Alternative wedding, Tel Aviv

Alternative wedding, Tel Aviv_311. (photo credit: Reuters)

The impact of civil marriage on personal status under Jewish law has engaged scholars since the French Revolution. This discussion has broad ramifications since, according to Halacha, anyone legally betrothed must undergo a religious divorce process before he or she may marry someone else. Until then a “second marriage“ would be adulterous, with the offspring deemed illegitimate children (mamzerim).

Ideally, a competent authority should supervise Jewish weddings to ensure that all procedures, documents and blessings are performed correctly. Yet unlike in other societies in which the official has power “vested” in him by the state or by God, officiating rabbis serve as mere assistants to the couple to ensure that their nuptials are performed appropriately. At its core, Jewish marriage remains simply a contractual agreement between two parties.

The Jewish marital process involves two stages, kiddushin (betrothal) and nissuin (nuptials), which are usually combined today in one ceremony. Nissuin is accomplished when the couple comes under the wedding canopy together and/or when they enter into a room or into their home in seclusion, thereby indicating their shared domicile. This was the method of legal marriage before the Jews received the Torah at Mount Sinai (Hilchot Ishut 1:1), and it remains the manner in which the Torah recognizes marital bonds between non-Jews, whom it also forbids from adultery and other illicit relations (Sanhedrin 57b).

THE FORMAL betrothal ceremony, which initiates the legal relationship and requires two lawful witnesses, may be accomplished in any of three different ways. The first method entails the man giving the woman an object of monetary value, and is almost universally performed today with a wedding band. Yet the betrothal may also be enacted through a written document or through sexual relations (Kiddushin 2a). The latter method which, when performed in one’s own home might combine both kiddushin and nissuin (EH 33:1), is deemed unseemly by the Sages (Kiddushin 12b). Nonetheless, such betrothals might remain in force, leaving open the possibility that those who entirely forgo a Jewish wedding ceremony remain legally married once they live together with the intent of being husband and wife.

This question was initially discussed in medieval times regarding a female Jewish apostate who married another apostate under Christian or Islamic law and then sought to return to the Jewish community. The Talmud declares that people do not want their sexual relations to be deemed licentious and therefore we assume that they have acted accordingly to make them licit (Gittin 81b). Some commentators conclude that we therefore assume that two singles who engage in sexual intercourse intend to wed and become legally married. Maimonides deems this interpretation preposterous and limits the Talmudic assumption to a few circumstances in which a quasi-relationship had already been established (Gerushin 10:19) or when dealing with righteous people (Nahalot 4:6). In his mind, non-marital intercourse remains as such unless explicitly stated otherwise.

Based on this opinion, Rabbis Isaac Perfet (Shu”t Rivash 6) and Israel Isserlain (Trumat Hadeshen 209) declared that weddings under non-Jewish religious auspices have no legal impact since we assume that the choice of venue was a declaration by the couple that they were not being wed according to Jewish law. Especially since such a couple is unlikely to observe family purity laws, which carry severe punishment, we deem their current relationship as illicit and non-marital, thereby allowing the woman to remarry without a hard-to-receive divorce document (EH 26:1).

Not all scholars, however, agree with this opinion regarding to civil marriage. Some believe that elements of a civil wedding (such as the ring ceremony or a marriage certificate) might suffice to create a recognized union (Otzar Haposkim 26). Rabbi Yosef Rosen contends that the methods declared at Sinai to create Jewish marriages did not fully nullify the old method, which entailed simply living together for the sake of marriage (Shu”t Tzafnat Paneah 26). Rabbi Yosef Henkin more compellingly argues that people who declare their intent to marry and then consummate that marriage by way of cohabitation have fulfilled the basic requirements of Jewish marriage even if they did not specifically intend to wed under Jewish law (Perush Ivra 3-5).



The majority of scholars, however, contend that civil marriage does not create a halachic marriage. They note that the ceremonial elements of a civil ceremony are declarative but not constitutive and that sexual relations do not serve as a method for betrothal today (Helkat Ya’acov 1:1). More importantly, Rabbi Moshe Feinstein contends that the choice to avoid a halachic Jewish ceremony reflects the couple’s desire not to be married under Jewish law (Igrot Moshe EH 1:74). Based on these considerations, Rabbis Ovadiah Yosef (Yabia Omer EH 6:1) and Meshulam Roth (Kol Mevaser 22) have indicated that no divorce procedure is necessary after a civil marriage. However, most scholars, including Rabbi Yehiel Weinberg (Seridei Esh 1:108), believe that when possible in such a situation, the woman should be formally divorced according to Halacha. If this is unfeasible, she remains free to wed as her heart desires.

The writer, online editor of Tradition and its blog, Text & Texture (text.rcarabbis.org), teaches at Yeshivat Hakotel. JPostRabbi@yahoo.com


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