One of the most serious problems confronting American Jewry as a community is the possible validity of non-Orthodox marriages.1For summaries of the halachic status of civil marriages see Techumin (2:255-263), Otzar Haposkim (vol. 10, 26:6:3-5) and Rav Gedaliah Felder's Nachalat Tzvi (2:296-328). As a practicing dayan on the Beth Din of Elizabeth, this author has encountered numerous situations in which this issue came to the fore. It is protocol among all batei din to require a get even if the couple was married only civilly. However, when certain situations arise, a get is either difficult to obtain or insufficient. One example is when a man refuses to grant a get to his wife even after the couple has received a civil divorce. If it can be determined that the couple's marriage lacked halachic validity, the woman is permitted to remarry without a get. Another regrettably common situation is mamzeirut, where a woman conceived a child before she received a get from her former husband. A child conceived during a halachically adulterous relationship is a mamzeir and may not marry a natural-born Jew (see Shulchan Aruch, Even Ha'ezer 4).2Even if the woman were to receive a get from her first husband, it would not help the children who were already conceived through an extramarital relationship (see Minchat Shlomo 1:76). In these situations, we cannot simply "play it safe" and assume the validity of the civil marriage at the agunah's or mamzeir's expense, so the marriage's halachic status must be determined.
Talmudic Background
The Mishnah (Kiddushin 2a) teaches that a Jewish marriage, kiddushin, can be created through "money, written contract, or sexual relations." Civil marriage ceremonies lack religious significance, so their halachic validity could come only from the couple’s subsequent cohabitation.
The Mishnah (Gittin 81a) speaks of a divorced couple who sleeps alone in an inn. Beit Hillel believes that the couple is remarried by virtue of the cohabitation. The Gemara explains that Beit Hillel's opinion is predicated on two key principles. First, although no one saw a sexual act, we view the witnesses who saw the couple enter the room as if they saw such an act (hein hein eidei yichud hein hein eidei bi'ah). Upon establishing that the couple engaged in sexual relations, Beit Hillel applies the rule of ein adam oseh be'ilato be'ilat zenut (one does not normally engage in sexual activity outside of marriage). The man thus wants his encounter in the inn to constitute an act of kiddushin, lest it be deemed illicit. The halachic issue concerning civil marriage depends on whether the principles of ein adam odeh be'ilato be'ilat zenut and hein hein eidei yichud hein hein eidei bi'ah apply to a civilly married couple.
Rishonim and Shulchan Aruch - Catholic Weddings
The question of civil marriage did not emerge until the nineteenth century, as the institution did not exist until then. However, Rishonim dealt with a similar problem, the halachic status of Jews who married in a Catholic ceremony and lived together. The Rivash (Teshuvot 6) wrote a landmark responsum on this issue, presenting two major arguments why Jews married in a Catholic ceremony are not married according to Halachah. He notes that a couple who chooses to marry in a Catholic ceremony demonstrates that it does not wish to be married according to Torah law. Furthermore, the Rivash asserts that the Talmudic rule of ein adam oseh be'ilato be'ilat zenut does not apply to those who do not observe the laws of family purity. If a man and woman engage in sexual relations when she is a nidah (a sin punishable by kareit, spiritual excision), they undoubtedly do not object to sexual contact outside the context of marriage (a weaker prohibition).3Rav Yitzchak Herzog (Teshuvot Heichal Yizchak E.H. 2:31:3) notes that this assumption is not always true. While halachically sensitive Jews recognize that having relations with a nidah is more severe than engaging in sexual relations outside of marriage, this may not always be true of secular Jews. As Rav Herzog writes, a secular Jew may be unable to imagine the severity and importance of family purity, yet he will realize that living together out of wedlock is a "corruption of serious human morality." Nevertheless, Rav Herzog himself rules that civil marriages are not halachically binding, for reasons that we shall see later in this chapter. Regrettably, it is doubtful that Rav Herzog's assessment of the secular Jews of his time applies to non- Orthodox Jews today, when much of Western society no longer views premarital sex as corrupt and amoral (see Aseih Lecha Rav 8:72). The Terumat Hadeshen (209), Radbaz (1:351), and Mishneh Lamelech (Hilchot Geirushin 10:18) agree with the Rivash. Indeed, the Rambam (Hilchot Ishut 7:23) writes that the rule of ein adam oseh be'ilato be'ilat zenut only applies to those who are "kosher" (proper) among the people of Israel.
Both the Shulchan Aruch (Even Ha'ezer 149:6) and the Rama (E.H. 26:1) accept the Rivash's lenient ruling. The Shulchan Aruch writes, "[Regarding] a man and woman who were forcibly converted and later married in a Catholic ceremony, even though everyone [Jewish] sees them entering their home alone… no kiddushin exist between this man and woman."
Contemporary Rulings
These rulings serve as precedents for the overwhelming majority of authorities, who rule that civil marriages are not halachically binding. Rav Moshe Feinstein (Teshuvot Igrot Moshe, Even Ha'ezer 75) articulates this view:
If the people who had only civil marriage are halachically observant, the couple requires a get because of the rule ein adam oseh be'ilato be'ilat zenut. If it is possible, one should obtain a get even for those couples who are not halachically observant, as is the generally accepted rabbinical practice. However, if it is impossible to obtain a get and the woman would otherwise remain an agunah, one may rely on the lenient ruling of the Rivash.
The main proponent of the dissenting view is Rav Yosef Eliyahu Henkin (Perushei Ibra, Chapters 3-5). He argues that if the couple intends to be married, then every sexual act should be viewed as an act of kiddushin. Rav Henkin vigorously argues that a couple need not intend to marry according to Jewish law for kiddushin to take effect. The Halachah considers kiddushin to be created when a couple engages in marital relations and intends to have a permanent monogamous relationship.
The overwhelming majority of halachic authorities reject Rav Henkin's position. Rav Meshulam Roth (Teshuvot Kol Mevaser 22) writes, "Virtually all of the great halachic authorities of the previous generation agree that a couple which was married only in a civil ceremony essentially does not require a get."
Rav Avraham Shapiro (Teshuvot Devar Avraham 3:29) vigorously disputes Rav Henkin's arguments. He notes that the rulings of the Rivash, Terumat Hadeshen, Radbaz, Shulchan Aruch, and Rama seem to contradict Rav Henkin's assertions. Furthermore, a couple is not halachically married if the man and woman do not intend to marry according to Torah law.
This argument revolves around the question of what creates kiddushin. Is it intent for a permanent monogamous relationship or for marriage according to Jewish law? Indeed, many of those espousing the lenient view refer to the Shaagat Aryeh's opinion (cited in Teshuvot Beit Ephraim, E.H. 42) that the rule of hein hein eidei yichud hein hein eidei bi'ah does not apply to unlearned people4It appears from the responsum that the witnesses must know that marital relations can contract a marriage, although it is not entirely clear if he requires them or the couple to know this. who are unaware that kiddushin can be created through marital relations. We apparently do not consider the couple's general interest in a marriage relationship halachically significant as long as there is no interest in marrying according to Halachah.5See, however, Teshuvot Or Samei'ach (Likutei Teshuvot 10). This assertion is echoed by Rav Yitzchak Herzog (Teshuvot Heichal Yitzchak E.H. 2:31:3-4), who further notes that the sexual relations of a couple who mistakenly believes it had a halachic ceremony do not effect a marriage (Ketubot 73b). Why, he argues, should a secular couple who mistakenly believes that it does not need a religious ceremony be treated any differently?
Exceptions
There are a couple of possible exceptions to the consensus regarding civil marriage. One is the case discussed by Israel's late Sephardic Chief Rabbi, Rav Ben-Zion Uzziel (Teshuvot Mishpetei Uzziel, E.H. 29). Rav Uzziel writes that if a couple lived in a country where Jewish wedding rituals were forbidden, we should be concerned that the rule of ein adam oseh be'ilato be'ilat zenut applies. After all, it could well be that the couple desired a halachic marriage, so, in the absence of any other ceremony, it had sexual relations for the purpose of marriage.
Another possible exception is a non-observant couple who married civilly and later became more observant. Although the couple initially did not marry according to Halachah, one could argue that once the couple increasingly observes mitzvot, it wants to be halachically married. Its continued sexual relations effect this marriage based on the principle of ein adam oseh be'ilato be'ilat zenut. If a previously non-Orthodox couple finds itself in such a situation and wishes to ensure that it is married halachically, a competent rabbi must be consulted.
Conclusion
The overwhelming majority of halachic authorities believe that civil marriages are not halachically binding. They include Rav Chaim Ozer Grodzinski (Teshuvot Achiezer 4:50), Rav David Tzvi Hoffman (Teshuvot Melameid Leho’il 3:20), Rav Yechiel Yaakov Weinberg (Teshuvot Seridei Eish 3:22), Rav Yitzchak Isaac Herzog (Teshuvot Heichal Yitzchak, E.H. 2:30-31), Rav Yaakov Breisch (Teshuvot Chelkat Yaakov 1:1), Rav Shlomo Zalman Auerbach (Teshuvot Minchat Shlomo 3:100) and Dayan Y.Y. Weisz (Teshuvot Minchat Yitzchak 3:125). Furthermore, today there may be yet another reason to rule that civil marriages are not halachically valid. Rav Henkin based his stringent view on ein adam oseh be'ilato be'ilat zenut. Rav Chaim David Halevi argues that, unfortunately, this principle no longer holds true in many Western countries (Aseih Lecha Rav 8:72). In practice, Rav Shiloh Raphael writes (Techumin 7:284), "In case of igun, all batei din in Israel permit the woman [married only in a civil ceremony] to remarry without a get. Nevertheless, the accepted practice is to try to arrange a get, if at all possible, even if only a civil ceremony took place." Obviously, since this is a complex area of Halachah, a rabbi of eminent stature must be sought when confronting the situations that we have discussed.