Rabbi Shlomo RiskinThe writer is the founding and Chief Rabbi of Efrata, Gush Etzion, as well as founder and Chancellor of Ohr Torah Stone Institutions, author of Torah Lights and other well known Judaic texts.
“When a man takes a woman and has relations with her…” (Deuteronomy 24:1)
As a very young Rabbi I had the privilege of visiting one of the most revered halakhic scholars; Rav Henkin, already near-blind but still possessed of a razor-sharp mind. I shall never forget the last words he said to me, gently but firmly: “I told Rav Moshe that after a civil marriage the woman still needs a get (religious divorce)” – he repeated this several times.
I left Rav Henkin profoundly inspired; it was amazing how this elderly sage, remained so preoccupied with a point in Jewish law. The issue he raised related to a dispute between himself and Rabbi Moshe Feinstein as to whether the parties to a common-law, civil or any other non-halakhic marriage, who wished to separate required a religious divorce (get).
Rav Henkin maintained that they would since they had presumptively consummated their union; they were living together, and were publicly considered to be husband and wife. One of his proof- texts was our Torah reading of Ki Tetzei, which defines marriage; “When a man shall take (Ki Yikah) a woman and have sexual relations with her…” (Deuteronomy 24:1).
Rav Moshe disagreed, claiming they would not require a get. His logic was that a get is a necessity only for a halakhic marriage; the very concept of marriage is unique to the halakhic context – and therefore the halakhic obligation of a get applies only within the unique rubric of a halakhic marriage.
Rav Moshe Feinstein’s ruling has been widely accepted – and this has greatly minimized the problem of mamzerut - or children considered to be the offspring of an adulterous relationship and who themselves are Biblically prohibited from marrying regular Jews. Before Rav Moshe’s path-breaking decision, a woman who received a civil but not a religious divorce and then re-married would still be considered “married” to her first husband – any children she might conceive with her second husband would be considered mamzerim.
Given the high divorce and re-marriage rate of Jews throughout the world, and the relatively small amount of gittin (halakhically validated divorces) which are issued, the number of potential mamzerim would have become staggering. Rav Moshe’s ruling frees the overwhelming majority of those offspring from any stigma or taint.
It may well now behoove the Israeli religious establishment to welcome civil marriages: given the great dissatisfaction with the way the religious court system treats women in need of a religious divorce; the fewer women who require religious divorces, the fewer cases of women chained to impossible marital situations which the Israeli courts will have to adjudicate.
The Talmudic Tractate Kiddushin explains the Biblical word kiha by two different but complementary terms: kinyan and kidushin. Kinyan is usually translated as acquisition, but in this context it clearly means commitment. In the Book of Exodus, the Bible outlines the responsibility for guards, “When a man gives his friend money or vessels to guard” (Exodus 22:6)- and the Talmud stipulates that from the moment of his acceptance (taking) of the object, commitment and responsibility (kinyan) devolve upon the guardian even though he is clearly not the owner. (B.T. Bava Metzia, Chapter Hamafkid).
Now this commitment or responsibility does not include any kind of ownership; indeed, if the guardian claims that the object in his trust was stolen, he will only be freed of culpability if he takes an oath that “he did not extend his hand to use the object in any way”. (Exodus 22:7). In this context, as well as in the context of betrothal-marriage, the kinyan (acquisition) is one of commitment-responsibility and not ownership.
Even more to the point, the second interpretive term for kinyan in the context of betrothal-marriage is kidushin, which literally means sanctification. The Talmudic discussion links this to hekdesh, that which belongs to G-d (B.T. Kidushin 2a,b). From a Rabbinic perspective, this means that one’s spouse belongs to G-d; it also means that G-d is a partner in every Jewish marriage. Indeed, the laws of family purity express this truth when they mandate that physical contact between the couple can only be enjoyed when both marriage partners desire it and only during those times in the month when Divine Law gives permission for sexual relations.
The groom verbally declares his acceptance of the Divine Partnership in his betrothal formula: “Behold, you are consecrated to me in accordance with the laws of Moses and of Israel”; Talmudic law invokes this principle by insisting that “whoever consecrates his bride does so in accordance with the conditions established by the Torah Sages”. (B.T. Gittin 33a)
God as well as the religious-judicial establishment are partners in every religious marriage; it is precisely this partnership which clears the way for rabbinic judges to abrogate (annul) a marriage if a husband is acting as a scoundrel, a measure which was taken five times in the Talmud by Religious Courts.
Rav Moshe Feinstein argues that a halakhic divorce is necessary only when the marriage ritual expressed a union which had initially been accepted as a menage a’ trois – the husband, the wife, and the Almighty G-d or his faithful deputies.