CIVIL MARRIAGE, a marriage ceremony between Jews, celebrated in accordance with the secular, and not the Jewish law.
The Problem in Jewish Law
Since in Jewish law a woman is not considered a wife (eshet ish
CIVIL MARRIAGE, a marriage ceremony between Jews, celebrated in accordance with the secular, and not the Jewish law.
The Problem in Jewish Law
Since in Jewish law a woman is not considered a wife (eshet ish) unless she has been married "properly," i.e., in one of the ways recognized by Jewish law (Yad, Ishut 1:3; Tur, EH 26; Sh. Ar., EH 26:1), any marriage celebrated according to the secular law and not intended to be in accordance with the "Law of Moses and Israel" should prima facie not be a "proper" one in the above-mentioned sense. The authorities nevertheless discuss the question whether, according to Jewish law, the consequences of marriage may apply to a civil marriage. This question arises from the fact that the parties are living together with the intention to live as husband and wife and not licentiously, and also from the halakhic presumption – the application of which is subject to differences of opinions (see below) – that "a Jew does not live licentiously when he is able to live according to the mitzvah" (Yad, Ishut 7:23). Therefore, in the absence of evidence to the contrary, a Jewish couple living together as husband and wife are presumed to be doing so for the purpose of marriage to be constituted by their intercourse (kiddushei bi'ah – see *Marriage), and such a marriage is to be regarded valid when there is no other impediment (Git. 81b; Ket. 73a; Yad, loc. cit. and Gerushin 10:17, 19; Sh. Ar., EH 149:1, 2). The question accordingly is whether a couple married in a civil ceremony only and living together with the intention to live as husband and wife, and regarded as such by the public, are to be considered as being married to each other according to halakhah by way of kiddushei bi'ah, which would necessitate a get (*divorce in accordance with law) if they should want to marry other parties. The civil (or un-Jewish) ceremony may indicate that the parties do not want to be married according to Jewish law and the situation would thus be worse than if no ceremony at all had taken place.
Difference of Opinions of the Posekim
The above question, in all its implications, first arose at the end of the 15th century with regard to the *anusim of the expulsion from Spain (1492) who were prevented from openly practicing the Jewish faith and thus compelled to marry not in accordance with the "Law of Moses and Israel" but in accordance with the customs of the Catholic Church only. The opinions of the posekim were divided on the matter and have remained unreconciled.
One view was that on the basis of halakhah no significance is to be attached to non-Jewish marriages and that cohabitation by virtue thereof does not amount to kiddushei bi'ah, inasmuch as the latter means sexual relations between the parties for the sake of kiddushin, in this manner to create between themselves the legal tie of husband and wife according to Jewish law – whereas cohabitation between the parties by virtue of a civil marriage takes place not in order to thereby establish the marriage but rather on the basis of a marriage already celebrated. Moreover, their very marriage in a civil ceremony is an indication that they specifically desire to have the marital status not in accordance with the Law of Moses and Israel but in accordance with secular law. Hence, according to this view, a woman married in a civil ceremony could at most be considered a *concubine and therefore without the legal status in relation to the man which emanates from marriage according to the Law of Moses and Israel: "Having started with marriage in accordance with the laws of the gentiles, they are to be considered as if having declared explicitly their intention not to be married in accordance with the law of Moses and Israel but in the ways of the gentiles who are not subject to gittin and kiddushin and, if so, she is not as a wife to him but like a concubine without ketubbah and kiddushin" (Resp. Ribash nos. 5 and 6; see also Beit Yosef, EH 149 (concl.); Sh. Ar. EH 33:1; 149:6).
According to this view, the legal result of such cohabitation cannot be more favorable than if the man, even for the purpose of kiddushin in accordance with law, recites toward the woman words which, according to the halakhah, are incapable of bringing about their marriage; in a civil marriage, moreover, the words he recites not only are not intended for kiddushin according to the Law of Moses and of Israel but have as their express object marriage in accordance with the secular law (Resp. Ridbaz, cited in Freimann, Seder Kiddushin…, 365). Thus, there is also no room for applying here the presumption against "licentious living" (see above), since that presumption only applies to "good" Jews (kesherim) – i.e., not to the licentious, such as those who willingly deny the Jewish faith (Resp. Ribash no. 6; see also Yad, Gerushin 10:19, Maggid Mishneh thereto and to Naḥalot 4:6; Tur, EH 149; Sh. Ar., EH 149:5; Resp. Radbaz no. 351; Kol Mevasser, pt. 1, no. 22). According to this opinion, a civil marriage creates no rights or change of status, neither concerning family law nor the law of inheritance, and thus there is no need for divorce or for prior permission in order to enable the parties to marry other persons. This view rejects also the legal reasoning which wo