Civil Marriage

views updated

CIVIL MARRIAGE

CIVIL MARRIAGE , a marriage ceremony between Jews, celebrated in accordance with the secular, and not the Jewish law.

The Problem in Jewish Law

Since in Jewish law a woman is not considered a wife (eshet ish) unless she has been married "properly," i.e., in one of the ways recognized by Jewish law (Yad, Ishut 1:3; Tur, eh 26; Sh. Ar., eh 26:1), any marriage celebrated according to the secular law and not intended to be in accordance with the "Law of Moses and Israel" should prima facie not be a "proper" one in the above-mentioned sense. The authorities nevertheless discuss the question whether, according to Jewish law, the consequences of marriage may apply to a civil marriage. This question arises from the fact that the parties are living together with the intention to live as husband and wife and not licentiously, and also from the halakhic presumption – the application of which is subject to differences of opinions (see below) – that "a Jew does not live licentiously when he is able to live according to the mitzvah" (Yad, Ishut 7:23). Therefore, in the absence of evidence to the contrary, a Jewish couple living together as husband and wife are presumed to be doing so for the purpose of marriage to be constituted by their intercourse (kiddushei bi'ah – see *Marriage), and such a marriage is to be regarded valid when there is no other impediment (Git. 81b; Ket. 73a; Yad, loc. cit. and Gerushin 10:17, 19; Sh. Ar., eh 149:1, 2). The question accordingly is whether a couple married in a civil ceremony only and living together with the intention to live as husband and wife, and regarded as such by the public, are to be considered as being married to each other according to halakhah by way of kiddushei bi'ah, which would necessitate a get (*divorce in accordance with law) if they should want to marry other parties. The civil (or un-Jewish) ceremony may indicate that the parties do not want to be married according to Jewish law and the situation would thus be worse than if no ceremony at all had taken place.

Difference of Opinions of the Posekim

The above question, in all its implications, first arose at the end of the 15^th century with regard to the *anusim of the expulsion from Spain (1492) who were prevented from openly practicing the Jewish faith and thus compelled to marry not in accordance with the "Law of Moses and Israel" but in accordance with the customs of the Catholic Church only. The opinions of the posekim were divided on the matter and have remained unreconciled.

One view was that on the basis of halakhah no significance is to be attached to non-Jewish marriages and that cohabitation by virtue thereof does not amount to kiddushei bi'ah, inasmuch as the latter means sexual relations between the parties for the sake of kiddushin, in this manner to create between themselves the legal tie of husband and wife according to Jewish law – whereas cohabitation between the parties by virtue of a civil marriage takes place not in order to thereby establish the marriage but rather on the basis of a marriage already celebrated. Moreover, their very marriage in a civil ceremony is an indication that they specifically desire to have the marital status not in accordance with the Law of Moses and Israel but in accordance with secular law. Hence, according to this view, a woman married in a civil ceremony could at most be considered a *concubine and therefore without the legal status in relation to the man which emanates from marriage according to the Law of Moses and Israel: "Having started with marriage in accordance with the laws of the gentiles, they are to be considered as if having declared explicitly their intention not to be married in accordance with the law of Moses and Israel but in the ways of the gentiles who are not subject to gittin and kiddushin and, if so, she is not as a wife to him but like a concubine without ketubbah and kiddushin" (Resp. Ribash nos. 5 and 6; see also Beit Yosef, eh 149 (concl.); Sh. Ar. eh 33:1; 149:6).

According to this view, the legal result of such cohabitation cannot be more favorable than if the man, even for the purpose of kiddushin in accordance with law, recites toward the woman words which, according to the halakhah, are incapable of bringing about their marriage; in a civil marriage, moreover, the words he recites not only are not intended for kiddushin according to the Law of Moses and of Israel but have as their express object marriage in accordance with the secular law (Resp. Ridbaz, cited in Freimann, Seder Kiddushin…, 365). Thus, there is also no room for applying here the presumption against "licentious living" (see above), since that presumption only applies to "good" Jews (kesherim) – i.e., not to the licentious, such as those who willingly deny the Jewish faith (Resp. Ribash no. 6; see also Yad, Gerushin 10:19, Maggid Mishneh thereto and to Naḥalot 4:6; Tur, eh 149; Sh. Ar., eh 149:5; Resp. Radbaz no. 351; Kol Mevasser, pt. 1, no. 22). According to this opinion, a civil marriage creates no rights or change of status, neither concerning family law nor the law of inheritance, and thus there is no need for divorce or for prior permission in order to enable the parties to marry other persons. This view rejects also the legal reasoning which would require the said parties – in order to obtain permission to remarry – to obtain a get mi-ḥumra (i.e., out of strictness), lest the public, being unaware of the true position and considering them to be husband and wife in accordance with Jewish law, conclude that any such husband and wife could each enter into a marriage contract with another party without first having been divorced from each other; on the contrary, the requirement of a get mi-ḥumrah may create the mistaken impression that a civil marriage creates a matrimonial tie – since a get is only possible in respect of an existing marriage – and therefore even a get mi-ḥumra is to be refrained from. Accordingly, the problem of an *agunah can also not arise in respect to a woman married in a civil ceremony only (see Freimann, op. cit., and sources there quoted, pp. 358–60, 364; Mishpetei Uzi'el,eh no. 59).

According to another opinion, upholding the requirement of get mi-ḥumra for parties married in a civil ceremony only, as a precondition to the marriage of either of them to another party in accordance with Jewish law, emphasizes the danger that the public be led astray and believe that husband and wife, although properly married, are permitted to enter into a marriage contract with others before being divorced from each other (see Freimann, op. cit, 367, 370–5). This view is supported in various additional ways. Some scholars hold that a civil marriage may, possibly, be regarded as a form of kiddushei shetar (marriage by deed – see *Marriage), since in connection with civil marriage the parties to it generally sign in a governmental marriage register, and on the strength of such marriage take upon themselves, by virtue of law, certain obligations resembling those imposed on husband and wife married in accordance with Jewish law (Freimann, 370–1). Nevertheless, the first opinion sees a fundamental difference between a marriage by shetar and the said signing of the register, to wit: in the former case the man delivers the shetar to the woman for the purpose of thereby bringing about the marriage – i.e., the delivery of the shetar concurrently with his recital of the words, "Behold, you are consecrated unto me by this shetar according to the Law of Moses and of Israel," creates the matrimonial status between the parties – whereas signing the register in connection with a civil marriage is no more than proof that their marriage has already taken place.

Another reason advanced in upholding the requirement of get mi-ḥumrah in the circumstances outlined above is that cohabitation following upon a civil marriage may possibly be seen as having an element of kiddushei bi'ah, since the parties live together not for the purpose of prostitution but because they regard themselves as married (although only by virtue of civil marriage) and are so regarded by the public. According to this opinion, to such parties the above-mentioned presumption against licentious living may possibly be applied (Ḥelkat Meḥokek 26, n. 3; and see Freimann, 360). Other posekim see an element of kiddushei kesef ("marriage by money" – see *Marriage) in a civil marriage, at all events when celebrated in countries where the groom, in accordance with local custom, hands a wedding ring to his bride even though he does so in pursuance of the civil marriage and not for the sake of kiddushin in terms of Jewish law (see Freimann, 371ff.).

The Halakhah in Practice

The above dispute stems essentially from the fact that on the one hand a civil marriage is a prima facie indication by the parties of their disinterest in marriage according to Jewish law; yet on the other hand, the surrounding circumstances may sometimes leave room for doubt as to whether the requirements of a Jewish marriage had not been fulfilled nevertheless. Hence, the legal status of the parties requires determination according to the circumstances of each case, with particular regard to the legal system, social background, and degree of freedom pertaining to the celebration of marriages prevailing in the country concerned. In countries with no restriction on the celebration of marriages in accordance with Jewish law, whether recognized – or allowed – by the state without or only after a civil marriage, the absence of the Jewish ceremony can be considered a clear expression of the parties' intention to be married only in accordance with the secular law, and therefore they are not to be considered married under Jewish law. Consequently, neither Jewish family law or law of inheritance will be applicable to the parties, nor any branch of Jewish law whose operation is dependent upon the existence of a valid Jewish marriage between them. In contrast, however, in countries where the celebration of a Jewish marriage is likely to bring the parties into danger – as may be the case in some communist states – and it can be assumed that, but for the danger, the parties would have celebrated their marriage according to Jewish law, there may be room for assuming, by virtue of the presumption against "licentious living" (see above), that a valid kiddushin has taken place between them. In this event the parties will require a get mi-ḥumrah before either is permitted to enter into another marriage (Terumat ha-Deshen no. 209; Sh. Ar., eh 26:1 and Rema thereto; Ḥelkat Meḥokek 26, n. 3; Mishpetei Uzi'el,eh no. 59 and cf. nos. 54–57). It follows that even in such countries no element of kiddushin is recognized as attaching to the relationship between parties entering into a civil marriage if they are non-observant Jews who completely deny Jewish law (Kol Mevasser, pt. 1, no. 22).

It is accepted, however, that in cases where there would be danger of the woman becoming an agunah, the circumstances that gave rise to the need of a get mi-ḥumrah will not be considered sufficient grounds to bar her from remarrying and she will be granted permission to do so without a get (Kol Mevasser, pt. 1, no. 22; Melammed Leho'il, eh 20). Either party to a civil marriage will be entitled from the start to demand that the bet din oblige the other party to grant or accept a get because the doubt arising from such a marriage entails a risk, as above-mentioned, for the claimant and there is no justification for the defending party to be permitted to prolong this situation of risk and all it entails for the claimant (Keneset Gedolah, eh 1, Beit Yosef 24; pdr 3:369, 373–80).

Where a get mi-humra is granted, there is a difference of opinion among rabbinic authorities as to whether or not the divorced woman may remarry a kohen, who is generally proscribed from marrying a divorcee. The general consensus among Sephardi authorities is to allow the woman to remarry a kohen since a get mi-humra is the result of stringency and not absolutely required. Many Ashkenazi rabbis, however, do not permit a woman who has received a get mi-humra to marry a kohen (Rema, eh 6:1; Yabi'a Omer, pt. 6, eh 1; Shemesh u-Magen, pt. 3, eh 14–15, 75; Seridei Esh, pt. 3, no. 51; Ẓiẓ Eliezer, pt. 11, no. 81, ch. 2).

The claim by a wife for alimony cannot be entertained against her husband on the strength of their civil marriage alone, since such a claim must be founded on a marriage contract in accordance with Jewish law. She cannot do any more than offer facts giving rise to doubt only of the existence of kiddushin, a doubt which does not suffice to entitle the plaintiff to obtain a monetary judgment against the defendant (pdr 3:378f.; a decision of a local rabbinical court in Israel may be noted, however, in which it was held, in the case of a Jewish couple seeking a divorce after being married in 1942 in a civil ceremony in Russia, that, on the basis of an assumed agreement, their common property was to be divided in accordance with the lex loci celebrationis with reference to the division of property in such circumstances; pdr, 5:124–8 and see *Conflict of Laws).

The Approach of the Courts in the State of Israel

Marriage and divorce in Israel between Jews can only take place in accordance with Jewish Law (sec. 2 of the "Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713–1953") and, thus, no civil marriage between Jews can be contracted in Israel. In the case of a Jewish couple married abroad in a civil ceremony, the Israeli Supreme Court has yet to rule definitively on the validity of such a marriage. Instead, it has adopted an approach whereby the legal consequences of the civil marriage are determined under civil contract law and the doctrine of "Good Faith." Thus, a civil court may decide on the financial ramifications of the civil marriage, such as alimony and division of assets, including property, based upon the intent of the parties and principles of good faith, even without necessarily addressing the legal issue of the couple's marital status.

bibliography:

A.Ch. Freimann, Seder Kiddushin ve-Nissu'in… (1945), 346–84; A.A. Rudner, Mishpetei Ishut (1949), 132–42; E.L. Globus, in: Ha-Peraklit, 8 (1951/52), 52–62, 344–51; Z. Domb, in: No'am, 2 (1959), 235–40; Ch.S. Harlap, ibid., 241–5; M. Schreibmann, ibid., 246f.; M. Silberg, Ha-Ma'amad ha-Ishi be-Yisrael (1965⁴), 222–51; B. Schereschewsky, Dinei Mishpaḥah (1967²), 83–95; M. Elon, Ḥakikah Datit (1968), 77–79, 169–72. add. bibliography: S. Dichovsky, in: Tehumin, 2 (1981), 252–66; M. Shava, in: Tel Aviv University Studies in Law, 9 (1989), 311–46; B. Schereschewsky, Dinei Mishpaḥah (1993⁴), 75–87; N.E. Frimer and D.I. Frimer, in: N.E. Frimer, A Jewish Quest for Jewish Meaning (1993), 144–83; M. Shava, Ha-Din ha-Ishi be-Yisrael, 1 (2001⁴), 539–74.