(2012/5772)

The State of Israel recognizes only Orthodox marriages for its Jewish residents. While nearly all observant and traditional Jews (who together probably constitute a majority of Israel’s Jewish citizens) are content with the status quo, some secular Jews are disturbed by it. They would like the Jewish State to offer the option of civil marriages and divorces. While religious Jews have traditionally opposed this introduction, a surprising proponent of this change emerged in the mid-2000s. None other than Rav Eliyahu Bakshi-Doron, the former Sephardic Chief Rabbi of Israel presents his support for the introduction of civil marriage to Israel, in volume twenty five of Techumin, the leading Halacha journal of the Religious-Zionist community in Israel. We shall present Rav Bakshi-Doron’s Halachic and public policy concerns as well as the reasoning of the overwhelming majority of rabbinic authorities who support maintaining the status quo in religion in Israel that has prevailed since the founding of the State in 1948.

Halachic Evaluation of Civil Marriage

Before discussing public policy issues we must review the Halachic status of civil marriages. Rav Bakshi-Doron records the protocol of Batei Din (rabbinic courts) to require a get even if the couple was married only civilly. However, when a Get (Jewish divorce) is difficult to obtain, the woman or man is permitted to remarry without having executed a Get. A child is not considered a Mamzeir (illegitimate) if his/her mother remarried without having obtained a Get if she was married only in a civil ceremony.

Talmudic Background

The Mishnah (Kiddushin 2a) teaches that a Jewish marriage, Kiddushin, can be created through “money, written contract, or relations.” Civil marriage ceremonies almost always lack religious substance, form, and intent so their Halachic validity could come only from the couple’s subsequent cohabitation.

The Mishnah (Gittin 81a) speaks of a divorced couple that secludes themselves in an inn. Beit Hillel believes that the couple is remarried by virtue of the cohabitation. The Gemara explains that Beit Hillel's opinion is predicated on two key principles. First, although no one saw an intimate act, we view the witnesses who saw the couple enter the room as if they saw such an act (Hein Hein Eidei Yichud Hein Hein Eidei Bi'ah). Upon establishing that the couple engaged in relations, Beit Hillel applies the rule of Ein Adam Oseh Be'ilato Be'ilat Zenut (one does not normally engage in intimate activity outside of marriage). The man thus wants his encounter in the inn to constitute an act of Kiddushin, lest it be deemed illicit. The Halachic issue concerning civil marriage depends on whether the principles of Ein Adam Oseh Be'ilato Be'ilat Zenut and Hein Hein Eidei Yichud Hein Hein Eidei Bi'ah apply to a civilly married couple.

Rishonim and Shulchan Aruch - Catholic Weddings

The question of civil marriage did not emerge until the nineteenth century, as the institution did not exist until then. However, Rishonim dealt with a similar problem, the Halachic status of Jews who married in a Catholic ceremony and lived together. The Rivash (Teshuvot 6) wrote a landmark responsum on this issue, presenting two major arguments why Jews married in a Catholic ceremony are not married according to Halacha. He notes that a couple that chooses to marry in a Catholic ceremony demonstrates that it does not wish to be married according to Torah law. Furthermore, the Rivash asserts that the Talmudic rule of Ein Adam Oseh Be'ilato Be'ilat Zenut does not apply to those who do not observe the laws of family purity. If a man and woman engage in relations when she is a Nidah (a sin punishable by Kareit, spiritual excision), they undoubtedly do not object to intimate contact outside the context of marriage (a less severe prohibition). The Terumat HaDeshen (209), Radbaz (1:351), and Mishneh LaMelech (Hilchot Geirushin 10:18) agree with the Rivash. Indeed, the Rambam (Hilchot Ishut 7:23) writes that the rule of Ein Adam Oseh Be'ilato Be'ilat Zenut only applies to those who are "kosher" (proper) among the people of Israel.

Both the Shulchan Aruch (Even HaEzer 149:6) and the Rama (E.H. 26:1) accept the Rivash's lenient ruling. The Shulchan Aruch writes, "[Regarding] a man and woman who were forcibly converted and later married in a Catholic ceremony, even though everyone [Jewish] sees them entering their home alone . . . no Kiddushin exist between this man and woman."

Twentieth Century Rulings

These rulings serve as precedents for the overwhelming majority of authorities, who rule that civil marriages are not Halachically binding. Rav Moshe Feinstein (Teshuvot Igrot Moshe, Even Ha'Ezer 75) articulates this view:

If the people who had only civil marriage are Halachically observant, the couple requires a Get because of the rule Ein Adam Oseh Be'ilato Be'ilat Zenut. If it is possible, one should obtain a Get even for those couples who are not Halachically observant, as is the generally accepted rabbinical practice. However, if it is impossible to obtain a get and the woman would otherwise remain an Agunah, one may rely on the lenient ruling of the Rivash.

The main proponent of the dissenting view is Rav Yosef Eliyahu Henkin (Perushei Ibra, Chapters 3-5). He argues that if the couple intends to be married, then every intimate act should be viewed as an act of Kiddushin. Rav Henkin vigorously argues that a couple need not intend to marry according to Jewish law for Kiddushin to take effect. The Halachah considers Kiddushin to be created when a couple engages in relations and intends to have a permanent monogamous relationship.

The overwhelming majority of Halachic authorities reject Rav Henkin's position. Rav Meshulam Roth (Teshuvot Kol Mevaser 22) writes, "Virtually all of the great Halachic authorities of the previous generation agree that a couple which was married only in a civil ceremony essentially does not require a Get."

Rav Avraham Shapiro (Teshuvot Devar Avraham 3:29) vigorously disputes Rav Henkin's arguments. He notes that the rulings of the Rivash, Terumat HaDeshen, Radbaz, Shulchan Aruch, and Rama seem to contradict Rav Henkin's assertions. Furthermore, a couple is not Halachically married if the man and woman do not intend to marry according to Torah law.

This argument revolves around the question of what creates Kiddushin. Is it intent for a permanent monogamous relationship or for marriage according to Jewish law? Indeed, many of those espousing the lenient view refer to the Shaagat Aryeh's opinion (cited in Teshuvot Beit Ephraim, E.H. 42) that the rule of Hein Hein Eidei Yichud Hein Hein Eidei Bi'ah does not apply to unlearned people who are unaware that Kiddushin can be created through marital relations. We apparently do not consider the couple's general interest in a marriage relationship Halachically significant as long as there is no interest in marrying according to Halacha. This assertion is echoed by Rav Yitzchak Herzog (Teshuvot Heichal Yitzchak E.H. 2:31:3-4), who further notes that the intimate relations of a couple who mistakenly believes it had a Halachic ceremony do not effect a marriage (Ketubot 73b). Why, he argues, should a secular couple who mistakenly believes that it does not need a religious ceremony be treated any differently?

Exceptions

There are some possible exceptions to the consensus regarding civil marriage. One is the case discussed by Israel's late Sephardic Chief Rabbi, Rav Ben-Zion Uzziel (Teshuvot Mishpetei Uzziel, E.H. 29). Rav Uzziel writes that if a couple lived in a co.

0untry where Jewish wedding rituals were forbidden, we should be concerned that the rule of Ein Adam Oseh Be'ilato Be'ilat Zenut applies. After all, it could well be that the couple desired a Halachic marriage, so, in the absence of any other ceremony, it had relations for the purpose of marriage.

Another possible exception is a non-observant couple who married civilly and later became more observant. Although the couple initially did not marry according to Halacha, one could argue that once the couple increasingly observes Mitzvot, it wants to be Halachically married. Its continued relations effect this marriage based on the principle of Ein Adam Oseh Be'ilato Be'ilat Zenut. If a previously non-Orthodox couple finds itself in such a situation and wishes to ensure that it is married Halachically, a competent rabbi must be consulted.

Conclusion

The overwhelming majority of Halachic authorities believe that civil marriages are not Halachically binding. They include Rav Chaim Ozer Grodzinski (Teshuvot Achiezer 4:50), Rav David Tzvi Hoffman (Teshuvot Melameid LeHo’il 3:20), Rav Yechiel Yaakov Weinberg (Teshuvot Seridei Eish 3:22), Rav Yitzchak Isaac Herzog (Teshuvot Heichal Yitzchak, E.H. 2:30-31), Rav Yaakov Breisch (Teshuvot Chelkat Yaakov 1:1), Rav Shlomo Zalman Auerbach (Teshuvot Minchat Shlomo 3:100) and Dayan Y.Y. Weisz (Teshuvot Minchat Yitzchak 3:125). Furthermore, today there may be yet another reason to rule that civil marriages are not Halachically valid. Rav Henkin based his stringent view on Ein Adam Oseh Be'ilato Be'ilat Zenut. Rav Chaim David HaLevi argues that, unfortunately, this principle no longer holds true in many Western countries (Aseih Lecha Rav 8:72). In practice, Rav Shiloh Raphael writes (Techumin 7:284), "In case of Igun, all Batei Din in Israel permit the woman [married only in a civil ceremony] to remarry without a get. Nevertheless, the accepted practice is to try to arrange a get, if at all possible, even if only a civil ceremony took place." Remarriage after being married only in a civil ceremony certainly does not result in Mamzeirut if the mother did not receive a Get. Thus, having tens of thousands of Jewish couples which married without the benefit of a religious ceremony divorce without a Get, does not create a disaster of Mamzeirut. The question remains, though, whether creating such an alternative track constitutes prudent Torah public policy.