Responsum: On Civil Marriage
Solomon Tsvi Schick (Rashban)
1899
I set the Lord before me always. Karcag [Hungary], eve of the holy Sabbath, the week of [the reading of] Koraḥ, 5659 [June, 1899].
Abundant blessings and rejoicings to my dear friend, the eminent rabbi, erudite in the Torah of the Lord of Hosts, exalted and righteous, who busies himself in Torah day and night, honor be to his holy brilliance, our teacher and master Michael Goldberger, rabbi of the holy congregation of Mezőtúr and its provinces.
My soul’s beloved! In your humility, you presented before me your uncertainty in the case of a Jewish woman who lived with a Jewish man according to the country’s laws of civilly contracted marriage. The man died in his wickedness without son or daughter. Now the question is asked whether the woman is obligated [by the laws of levirate marriage] to obtain release [ḥalitzah] from the brother of the deceased.
[According to the argument you presented,] Rabbi Moses Isserles, in [Shulḥan ‘arukh] even ha-‘ezer § 26, writes that in the case of male and female mumarim [those who regularly renege the entire Torah, often used to denote converts] who married in their state of wickedness according to the gentile law, and afterwards returned to the Jewish faith, all their previous contractual arrangements should be considered null and void, and it is as if they had engaged in common fornication. Deduce from this: if in the case of male and female mumarim who married each other according to the laws of faith of another religion it is considered by our holy Torah to be null and void, we should say accordingly that if they married according to civil law it is also null and void. By this argument, the woman is not obligated to obtain release from the brother of the deceased. And [in your letter] you went on expounding this argument at length in intelligent and knowledgeable fashion, and requested to hear my opinion.
Now, my teacher, Maharam [Moses] Schick [1807– 1879] dealt with this law at length in his responsa on Even ha-‘ezer § 21, citing in support the view expressed in Terumat ha-deshen1 § 270, to the effect that in the case of a male and female mumarim, one does not apply the rule: “It is presumed that a man does not intend his sexual intercourse to be mere fornication.”2 It is similarly the case with those who marry according to the marriage laws of the state.
And he further ruled that even if one had sexual intercourse with the intention of contracting betrothal—for this one needs witnesses—there are no witnesses here to the couple being secluded together [for purpose of consummation]. He deduced as a matter of theoretical law, though not necessarily of practice, that this would be considered mere fornication. This is the gist of his words.
And I, for my own part, have maintained from the outset that since by the law of the Torah we are obligated to separate out these wicked people—who disdain and despise the Torah of Moses and live without religious betrothal and marriage—from the congregation of Israel, and since it is the duty of the elders of the generation to draw the line and stand in the breach, it is therefore incumbent on us to proclaim at every occasion and at all times that this action of marrying according to civil law has no sanctity [of marriage] according to the law of the holy Torah. Furthermore, [the halakhah says that] whoever betroths a woman intends to do it on the basis of the consent of the rabbis, and that the rabbis now come and say that even if one performs intercourse with the intention of betrothal, this deed possesses no sanctity [of marriage]. This is all said for the purpose of putting a protective fence around the Torah.
Additionally, just as there is uncertainty in the case of ḥalitzah, so too there is uncertainty if [a Jewish couple married only by civil law] were divorced according to the laws of civil marriage, whether the woman needs a get [Jewish writ of divorce] according to the law of the Torah. Can such a bond be considered stronger than that of a concubine, on which the author of Leḥem mishneh ruled [in his commentary on Chapter 3 of Maimonides’ Melakhim u-milḥamot]3 that a get is not required?! Now, if she does not require a get [as in the case of a dissolution of civil marriage], then she should not require ḥalitzah either [in the case of her husband’s death]. This is my humble opinion.
From your friend and soulmate who loves you and always seek your well-being—
Shlomo Tzvi Schick.
Notes
[Terumat ha-deshen, the major halakhic work of Rabbi Israel Isserlein (Austria, 1390–1460).—Trans.]
[The implication of this rule is similar to that of common law marriage: in the case of otherwise observant Jews who cohabit as man and wife without benefit of clergy—i.e., without traditional Jewish betrothal and marriage—it is presumed that they mean, by living together, for that action itself to be for the purpose of marriage, and they are considered on that basis to be married. For that reason, their union can only be dissolved by formal religious divorce, and they are also subject to the provisions of levirate marriage and ḥalitzah. According to Isserlein (quoted by the elder Rabbi Schick), this rule does not apply to Jews who have abandoned Jewish religious practice altogether.—Trans.]
[Commentary on Maimonides’ Mishneh Torah by Rabbi Abraham de Boton (Salonika, ca. 1550–1588).—Trans.]
Credits
Solomon Tsvi Schick (Rashban), responsum [Responsum on Civil Marriage], in She’elot u-teshuvot Rashban ‘al even ha-‘ezer (Satmar: Adolf Boros, 1905), p. 86.
Published in: The Posen Library of Jewish Culture and Civilization, vol. 7.
