A Question of Jewish Law

December 8, 2010

Marriage by Default

Filed under: Marriage and Divorce — chaimweiner @ 2:30 pm

Question: A couple were married in a civil ceremony without a religious wedding. Do they require a GET if they divorce?

Answer: The Mishna [Kiddushin 1:1] states that A woman is acquired in marriage in three ways … by money, by deed, or by intercourse. There are three different ways that a marriage can be contracted in Jewish law. The traditional Jewish wedding has all three of these elements – a ring (money), a Ketuba (contract) and Yichud (time the couple is alone together). Any one of the three is enough to create a Jewish marriage. Therefore, whether there was a Jewish wedding or not, if a couple lives together with the intention of living as man and wife, this is a binding marriage in Jewish law and a GET is required.

This highlights a basic difference between the concept of marriage in Jewish law and civil law. In civil law, marriage is considered an act of the State. Therefore, for a marriage to be valid it needs to be registered with the authorities and it can be dissolved by a court of law. In Jewish law, marriage is a private agreement between two individuals. Therefore it can be contracted by mutual agreement, and can only be dissolved with the consent of both parties.

The complicated part is determining the intention of the couple. While it is likely that a couple choosing a civil marriage wish to be considered man and wife, it is also possible that the fact that they specifically chose not to have a religious wedding indicates that they did not intend to be married under Jewish law. Different halachic authorities have taken different approaches to this. R. Abraham Shag [19th century, Hungary] [Ohel Abvraham, 103] writes that we rely on a Talmudic principle that we always assume that a person had proper intentions when cohabiting. Therefore, lacking any other information, we assume that there was a valid marriage and a GET is required. On the other hand, R. Shlomo Schik [19th century, Hungary]  (Maharam Schik, EH 96) writes that even if in theory such a marriage may be valid, granting validity to such a marriage would undermine the institution of marriage in Jewish law. He therefore rules that such a marriage is automatically void and a GET is not required.

Therefore, there is a doubt as to whether or not a GET is required.  We apply the principle that ‘when there is a doubt about a Torah Law we follow the strict position’. Therefore a GET is required. However, since this was a case of doubt, after the fact – if the couple did not have a GET and subsequently remarried, the children of the second union would not be considered illegitimate and in this case no GET would subsequently be required.

Rabbi Chaim Weiner

Based on R. David Hoffmann Shut Melamed Lehoil. EH 20.

This study sheet is sponsored by Jewish Journeys Ltd: Currently booking trips to Tunisia (Tunis and the Magical Island of Djerba).

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    Comment by Horace — January 26, 2013 @ 12:53 am | Reply

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