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“The books, the compositions, and the commentaries are our teachers, and all is according to the understanding of the intellect and reason.” R. Sh’muel ben Moshe di Modina

Monday, September 30, 2013

Haven't I Been Telling you NOT to Register your Civil Marriage (which took place abroad, of course)?

If you've been following my blog, you should have caught on to the fact that I recommend against registering a civil marriage (which had to have taken place outside of Israel, since Israel does not have civil marriage) in Misrad HaPnim (Office of the Interior).  I'm sure I mentioned it several times (for example, here).  And, of course, that means that you might as well not bother with a civil marriage in, say, Cyprus.  I've explained that once a couple registers as married in Misrad HaPnim,  dissolution of the marriage would still be in the hands of the batei din.  The whole point of a civil marriage is, I would think, to manage your personal life without the intervention of the religious establishment in Israel.

In this post I will demonstrate my point by writing about a case that came before the Beit Din HaGadol (the highest rabbinic court in Israel) in Jerusalem earlier this year.  The decision for the case, 891549/1, is dated March 5, 2013.  What was before the Beit Din HaGadol was an appeal (by the woman) against a previous decision by the regional beit din in Tel Aviv from approximately a year earlier.  In that earlier decision the beit din ruled that within thirty days the woman must accept a get l'humra (גט לחומרה out of concern for the more stringent opinion), but if she does not accept the get within thirty days, considering that the couple was married civilly, but had no (Orthodox) religious wedding, the marriage would be released, which basically means that Misrad HaPnim would receive direction from the beit din to change the status of the two parties to single.

The couple was married in a civil marriage in China in 1987.  They each arrived in Israel in different years in the 1990s and each one converted, also at different times.  They lived together as a couple in Israel prior to completion of the conversions.  Though during the conversion process they declared that they wanted to marry according to Jewish law, they never did.

It was the man who sued for divorce.  At the outset, the beit din ruled that there should be a get l'humra.  The woman agreed to accept a divorce, once the matters of property and child support were decided in the (civil) family court.  However, she did not appear on the designated date for the divorce proceedings.  The woman changed her mind and said that she wants her husband to prove cause for divorce in the beit din.  A whole lot of back-and-forth, which I won't bother to summarize.  The result was as I stated above:  the woman was ordered to accept a get.  If she did not within thirty days, the marriage would be released.

However, the woman apparently decided she wanted to retain her  married status and remain married to this man.  Therefore, the appeal.  She did not want a divorce, nor did she want the single status that would be imposed upon her by the beit din even if she did not accept the get.  She did not want to lose whatever benefits or value she had from this relationship.  She wanted shalom bayit.  (Go figure - I never understand someone who insists that a relationship isn't over when one person so clearly wants "out" - and in this case the marriage was in such a shambles that, at some point in the series of appearances before the beit din, she requested that the husband be tested for STDs and AIDS before she would take him back!!)

The pesak din is rather long (28 pages), and most of it consists of a discussion of the reasons for being stringent in requiring a get to end a civil (or non-Jewish) marriage.  All this is pretty theoretical, and has nothing to do with the fact that the woman does not want the marriage ended in any manner - l'humra or otherwise.  The dayyanim appear to be using this pesak as a platform to reiterate their standing on terminating a civil marriage.  

This particular case has the added matter of the civil marriage taking place when both partners were not yet Jewish.  The simple ruling is found in the Rm"a (R. Moshe Isserles' glosses on the Shulhan Arukh), Even HaEzer 26:

עכו"ם שנשא עכו"ם, וכן מומר שנשא מומרת לעבודת כוכבים בנימוסיהן, ונתגיירו אח"כ, אין כאן חשש קידושין כלל ומותרת לצאת ממנו בלא גט, אף על פי ששהה עמה כמה שנים אינו אלא כזנות בעלמא.

[In the situation of] a gentile who married a gentile, and similarly an apostate who married an apostate, such that they were living in accordance with a gentile religion, but who then converted [to Judaism] after they married [according to gentile custom - there was no civil marriage in the Rm"a's time], there is no concern that there was qiddushin at all, and [the woman] is permitted to be released from him without a get.  Even though he lived with her for several years, [the relationship] is not anything more than promiscuity.

If such is the Rm"a's ruling, why does the beit din prefer a get l'humra, and why do they need to write so many pages?  It is because there are dissenting views, cited in the pesak din, but which I will not include here, to keep the length of this post reasonable.  The dissenting views raise the possibility that this was not promiscuous, that the intimate relationship (following the conversions, in the case of this couple) was for the purpose of qiddushin, in which case a get would be necessary to end the marriage. (Check the first mishna in Qiddushin about the three ways to acquire a wife: by giving her something of monetary value, by a contract, or by sexual relations.)  The Sages were not very enthusiastic about qiddushin enacted by sexual relations, but it is a halakhic possibility, nonetheless, and it persists in being of concern in all discussions of dissolution of a non-halakhic marriage.

For this reason, every pesak din that deals with dissolving a civil marriage (regardless of whether or not partners were born Jewish) will go through the litany and quote all of the rishonim and aharonim who had anything to say about the intent of each of the parties when s/he engaged in sex with the other, and whether or not it was for the purpose of qiddushin or was a promiscuous relationship.  Never mind that many, many halakhic experts have already declared that in these modern times when a couple could easily have opted to marry according to Jewish law, but didn't, that clearly their intent was not for qiddushin.  Never mind that R. Moshe Feinstein did not require a get in cases of civil marriage, because he knew that by doing so it could increase the numbers of mamzerim; in the U.S., couples could get a civil divorce and ignore his ruling, if he were to insist on a get.

In Israel, couples have no such other option.  If the batei din would follow R. Feinstein's approach (and that of all the other authorities who provide reasons to be lenient) and rule a general decision that couples who do not have a halakhic wedding do not need a get, then the rabbinate would lose control over divorce in Israel.  The civil law would then have to provide a means for a couple who did not have a halakhic religious ceremony to change their status in the Misrad HaPnim without the intervention of the rabbinate.  Of course, if that were to happen, perhaps the batei din would have some time freed up to do more important things than deal with couples who don't really need a divorce, anyway.  But practical benefits should never interfere with power games, should they?    

So we get a lengthy discourse that includes all of the reasons to be lenient and all of the reasons to be stringent, including various analyses of the thinking behind the sexual relations of a couple who didn't marry halakhically.  Portions of the discussion are not particularly flattering to such a couple, to put it mildly.  Much of the cited material, being from centuries ago, is quite out of touch with reality (and then some rather modern stuff is also out of touch with reality).  And then the general conclusion, presented before getting to the case at hand:

לרוב ככל הפוסקים, אין לחשוש לקידושי ביאה בנישואין אזרחיים. אך גם החוששים לכך, זה רק כאשר בני הזוג יהודים נישאו בנישואין אזרחיים דאיכא הטעמים הנ"ל להחמיר, אבל כאשר בני זוג נישאו אזרחית בעודם גויים והתגיירו, ליכא לכל הני טעמי להחמיר.

According to just about all of the authorities there is no reason to be concerned about qiddushin by sexual relations in the case of a civil marriage.  But even those who are concerned [and therefore would obligate a get], it is only in the case when both partners are Jews who married in a civil marriage, because of the reasons given above to be stringent.  But when the partners married civilly while they were still gentile, and then converted, those reasons to be stringent are not relevant.

None of this really matters in the case of this particular couple.  What is important is that the appeal is dismissed because the wife did agree to divorce several times (and apparently changed her mind).  In fact, the higher beit din questions why the regional beit din required a get at all, given the lengthy discourse that was just provided by one of the dayyanim and its conclusion!  Therefore, even without a get, the marriage is to be dissolved.  I'd like to point out that this lenient attitude is specifically because the couple married civilly when they were not be Jewish.  Had it been a case of two people who were born Jewish, in spite of the fact that, as we saw in the conclusion, overwhelmingly the authorities are not concerned about qiddushin with a civil marriage, the batei din in Israel require a get l'humra.  (However, they will not consider a child born to a woman who was married in a civil marriage and did not receive a get a mamzer.)

What are my readers to get out of this?  That even in a case of a marriage that is in shambles and should be terminated swiftly, without mudslinging, without long drawn out proceedings in the beit din, once the marriage is registered in Misrad HaPnim, there is no escaping the batei din, even when a get is not halakhically required.  In this case, it appears that the correct result was eventually achieved.  But at what cost - to the two estranged parties who paid lawyers for all of the appearances in the beit din over the course of several years, to the taxpayers for the services of the dayyanim, to the other citizens whom the dayyanim could have served instead - for more pressing needs?  And, let's not forget the guy who first sued for divorce approximately 2 1/2 years before the final decision from the highest beit din.  I have no idea who was really at fault in the marital breakdown.  I don't care.  Remember, I support no-fault divorce.  Two and a half years is way too long a process if someone wants to move on with his or her life.  


  1. .אאל"ט כנראה הב"ד חוששין לדברי הרב הנקין זצ"ל ומה"ט חששו לגט לחומרא

  2. One of the big problems that you allude to here, but people need to be aware of, is that there is no consistency in the batei din. As long as the batei din have power, we have a problem even when they "do the right thing". Let's say a contemporary beit din today relies on the majority of poskim to allow a woman out of a marriage without a get l'chumra, where there is a minority who would have required one. 20+ years down the line when her child from her next marriage wants to get married, there is nothing to guarantee that the beit din then will accept the earlier decision. A more extreme group may take control of the beit din by then and decide he/she is a mamzer. The only solution is the permanent removal of the beit din from control over our marriage status.

    1. Thank you for emphasizing this very important point (and giving added support to my opinion that the monopoly of the batei din needs to be stopped). It is not highly likely that even a more stringent beit din would declare someone a mamzer so many years later in such a case, but on the other hand, I understand that even the batei din today keep "black lists" of adulterers that are known from divorce proceedings, and there is a website that I saw once that "exposes" mamzerim - in total opposition to what Jewish law always said and practiced in past generations.

  3. I feel like there is a nuance here that I'm missing: if a woman who's been married civilly, divorces without a get (in the US, let's say), and has a child from a second marriage how is that child not a mamzer, halachically? Why the insistence on a get/why should the woman bother getting one? Is there something that we can take from the laws/loopholes that allow for this and apply it to marriage in general?

    1. Thank you for your question. This is an important point. If a woman has been married civilly, but NOT with qiddushin, then she is not an eshet-ish (a married woman, halakhic ally). From a halakhic point of view, she is a single woman who had sexual relations, not considered a wonderful thing in the eyes of Jewish law, but not a married women. Therefore, a second (civil) marriage does not result in a mamzer. There is a stringent view that she should have a "get l'humra" - a get, sort of, "just in case", to be stringent. The stringency is explained by using the general idea that "en adam o-se b'ilato b'ilat z'nu" (a man does not have a promiscuous sexual relationship - oh no?! - meaning, that his intent was to betroth her by sexual encounter, b'a). In Israel, the batei din prefer to go this route. But whenever there already is a child from the subsequent relationship, they will not dare to label that child a mamzer. They will always say that the civil marriage was not qiddushin, that the sexual relationship did not serve as qiddushin by bi'a (sexual encounter, one of the methods that a man can betroth a woman), that it was not their intent to do so, because they had the option for a proper Jewish wedding and rejected it. The approach of R. Moshe Feinstein was not to require such a get (l'humra). He declared that all Reform marriages are not qiddushin and therefore do not require a get (and the same for a civil marriage). He did this because otherwise he'd be raising concern that the children of subsequent marriages to women divorced in the Reform movement are mamzerim, something that would have been quite damaging to the Jewish community, and, in any event, the get l'humra is just that - something to be more stringent. In Israel, it is a way to control people, in particular women. Requiring it (when there are no children) means that to be registered as divorced in the Ministry of the Interior one still has to undergo a procedure in the Beit din. I hope this explains the matter, but if you want further clarification, let me know.


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