Responsum: On Civil Marriage

Question: Whether in those marriages contracted under civil marriage law—without betrothal according to the rite of Moses and Israel—the woman can leave without a get [Jewish religious writ of divorce], or whether she needs a get according to the rite of Moses and Israel. This field has been thoroughly picked over. Our master the Maharam [Moses] Schick [1807–1879] (in Responsum 21) argued that by the letter of the law one could permit her to do so without a get, but whether this applies in practice requires further research. Subsequently, our master R. Abraham Karpeles discussed the matter in his book of responsa Ohel Avraham § 103, writing that since the prohibition on intercourse with a married woman is so severe, one should take the stringent line about civil marriage [i.e., recognize it as marriage, requiring a get in order for one to wed another] because of the presumption that a man does not intend his sexual intercourse to be mere fornication. Even in the case where a gentile couple married in accord with their [non-Jewish religious] law, afterwards converted to Judaism, and were seen by witnesses to be secluded [as a couple], one should exercise caution, as we may infer from the view of the Rashbatz [R. Simeon ben Tsemaḥ Duran] as cited in the Bet Yosef even ha-‘ezer at the end of Article 27. He refers there to the end of Chapter 9 of m. Ketubbot [9:9]. [ . . . ] He criticizes the arguments of Maharam Schick, who argued that one should not accept the view that the man’s intercourse was for the intention of matrimony.

Furthermore, Maharam Schick, in his responsa on Even ha-‘ezer § 96, wrote that it is obligatory on us to announce that the act of civil marriage possesses no sanctity according to the law of our holy Torah. The legal presumption says that any Jew who betroths a woman intends to do it on the basis of the consent of the rabbis [which is obviously absent in this case]. We must therefore say that if one performs intercourse with the intention of betrothal, this act possesses no sanctity, yet we have to recognize it as marriage for reasons of fences and safeguards [i.e., an additional prohibition enacted by the rabbis in order to minimize the possibility of transgression]. He therefore ruled that [one who marries by civil law] requires neither get nor ḥalitzah [a ceremony of exemption from levirate marriage].

In my humble view, the claim that the rabbis of our time can uproot the traditional Jewish law that intercourse with the intention of betrothal [on the basis of halakhah] constitutes betrothal—even if they do this as a fence and safeguard—is problematic. What shall we answer to the rabbis of France, if they should say that when insolent men deceive their wives, take their money, and abandon them to their misery, that the betrothal was invalid? Furthermore, there are times when a person does not hire a rabbi for a marriage on account of poverty, and is content with civil marriage. However, he does not do it due to principled objection [to religious marriage], but rather as an act of convenience;¹ and therefore if he knows that he can achieve religious wedlock by performing intercourse with the intention of betrothal with witnesses to the act of seclusion, he does so. And if one were to decide that in all cases of civil marriage, a get is superfluous [for divorce], it might be that we would allow a married woman to marry another man!² What would we do if afterwards the husband were to come and testify that he had performed intercourse for the intention of betrothal, and were to bring the witnesses to the act of seclusion? How could we investigate in each case what was the reason for which they were content with civil marriage? It therefore seems to me we must require a get [in all cases of civil marriage] to remove doubt. It would be best, however, to proclaim that the get is being required only on account of doubt lest the man performed intercourse for the sake of betrothal.