According to halacha, a marriage (kiddushin) may be solemnized in one of three ways: by money, by contract, or by marital relations.1 As a general rule, one must have the intention to marry when performing any of these three acts in order for the marriage to be legitimate. They must also take place in the presence (or, in the third case, with the knowledge) of two kosher witnesses.2
Given these facts, does civil marriage have any halachic legitimacy?
The Talmud discusses a case of a divorced couple who spent the night together in a hotel room.3 According to one opinion, that of Beit Hillel, the couple are considered to be married, as it is assumed that marital relations took place. Although there may be no witnesses who actually saw marital relations take place, the Gemara teaches that “hein hein eidei yichud hein hein eidei biah,” meaning that once a couple are seen or known to have entered a room alone together, it is assumed that marital relations also took place. Furthermore, it is generally assumed that observant Jews do not engage in casual intimacy – a concept known as “ein adam oseh b’ilato b’ilat zenut.” It is thus assumed that the couple engaged in marital relations for the purpose of marriage.4 Therefore, according to Beit Hillel at least, their stay in the hotel was actually intended to be an act of kiddushin, a form of remarriage for the couple.
Based on this precedent, contemporary halachic authorities grapple with the halachic status of civil marriage. Although a secular ceremony has no halachic validity whatsoever, there is much discussion as to whether living together in the same home, in full public view, constitutes an act of kiddushin similar to the Talmud’s case of the couple in the hotel room.
Addressing this issue, Rav Moshe Feinstein concludes that civil marriage and, by extension, a couple who choose to live together, is not halachically binding. He argues that the fact that a couple chose to forgo a Jewish ceremony demonstrates that they have no desire to be married according to Jewish law. Nevertheless, he rules that an otherwise halachically observant couple who married only in a civil ceremony are required to divorce by means of a get due to the rule of “ein adam oseh b’ilato b’ilat zenut,” should they decide to separate. He also encourages non-observant couples who were married in a civil ceremony to divorce by means of a get as well. This is a precautionary measure to ensure beyond a shadow of a doubt that any future children are legitimate. If, for whatever reason however, it is not possible for such a couple to divorce by means of a get, then one need not ascribe any validity to their civil marriage.5 According to this approach, it would ultimately be permitted to marry in accordance with halacha immediately after separating from one’s “civil spouse,” even without a get.
Rav Yosef Eliyahu Henkin strongly opposes the position taken by Rav Feinstein. He argues that if the intention of a couple is to be married, and they are known to the public as a married couple, then they are married by virtue of the marital relations that are assumed to have taken place. Rav Henkin considers the principle of “hein hein eidei yichud hein hein eidei biah” as binding, and therefore any couple who are known to have lived together are considered to be halachically married. According to this approach, if a couple intend to be “married” and conduct themselves as married couples do, then they are married and a get is absolutely essential should they decide to divorce.6 Any subsequent remarriage is considered to be an act of adultery, and any children born from this union would be mamzerim.
It seems that most contemporary halachic authorities rule in accordance with the position of Rav Moshe Feinstein, although it is unanimous that compliance with Rav Henkin’s position is to be preferred.7 Nevertheless, it appears that the Shulchan Aruch does not require compliance with Rav Henkin’s view.8
It must be noted, however, that the case for not requiring a get following a civil marriage is also largely based on a famous ruling of the Rivash. The Rivash ruled that a get is not needed for a couple married in a Christian ceremony.9 He writes that when a couple decides to marry according to the requirement of another religion, they are clearly demonstrating that they are not interested in being married according to Torah law. This being the case, there is no reason to require a get. It might just be, however, that when marrying in a completely secular manner, as with a civil ceremony, or even merely living together, there is more reason to rule strictly, in accordance with Rav Henkin. This is especially true in a place where marrying according to Jewish law is forbidden by civil law.10
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- Kiddushin 2a.
- Rashi, ibid., in EH 33:1.
- Gittin 81a.
- Rambam, Hilchot Ishut 7:23.
- Igrot Moshe 1:75. See also Seridei Eish 1:108.
- Peirushei Ibra, chapters 3-5. See also Otzar Haposkim 26.
- Kol Mevasser 22; Achiezer 4:50; Melamed L’hoil 3:20; Minchat Yitzchak 3:125, Seridei Eish 3:22; Yabia Omer 6:1; Minchat Elazar 3:12; Darkei Noam 75; Yaskil Avdi 2:6, 6:101; Shema Shlomo 1:15; Minchat Shlomo 3:100. See also Techumin 7:284, where it says, “In a case of igun, all batei din in Israel permit a woman married only in a civil ceremony to remarry without a get. Nevertheless, the accepted practice is to try to arrange a get, if possible, even if only a civil ceremony took place.”
- EH 149:6; Rema, EH 26:1.
- Teshuvot Rivash 6. See also Terumat Hadeshen 209.
- Teshuvot Mishpetei Uziel, EH 29.
