When we discuss situations in terms of halachah the situation of people marrying in non-halachic ways (such as civil marriage),, or even marrying "accidentally" (there can be several situations in which this can occur), we are faced with a dilemma. One the one hand, at least where there was an intent of marriage, we would like to declare the couple married. However, marriage comes with many obligations. One of these is, that in the event of the couple eventually splitting up, there is a Torah obligation of a "get"; a Jewish divorce (Deuteronomy 24:1). This is a ceremony much more complicated than a marriage, requiring great expertise on the part of the rabbis performing it. If there is a binding, valid marriage, but no "get" the marriage stands, with terrible consequences for the great sin of adultery, besides the far reaching consequences for the offspring of any future union. As a result, the direction rabbis take in these matters is to seek ways of invalidation these marriages, rather than face the far more serious situation of a possible (likely?) future adultery. I will discuss the process of "get" in a future post.
In a previous post in this series, I spoke of "Kiddushin", the part of the wedding ceremony in which the groom, in the presence of valid witnesses, gives the bride an article of value, declaring her consecrated unto him. This forbids her to every man in the world. Surprisingly, however, this is not the only way that "kiddushin" can exist. The Oral Torah stipulates three methods. One, is "kesef". This is literally "silver", but is understood to mean any article of some value. The second is "Shtar". This means a document, declaring her consecrated. The third is "Bi'ah". This means sexual intercourse. If the groom takes two witnesses, and declares to the bride that he is consecrating her with this act, upon which they depart to a private room and have relations, this would effect a binding marriage. Although this is a part of the Oral Torah, a great third century rabbi banned this practice as immodest. Nevertheless, if done, it would be valid.
The Talmud relates an interesting scenario. A couple decides to divorce, and they travel to another city where there is a Beit Din (rabbinic court) that performs the "get" ceremony. Friends accompany them on their journey. Afterwards, on the way back to their own city, the friends notice that the divorced couple have actually gone alone into a shared room. The Talmud states that they have thus reestablished their marriage, as the witnesses, even in the absence of a declaration of intent, may assume that they have reconciled, and that cohabitation was meant to be "kiddushin". Why should they assume this? "We assume that a man does not have sexual relations for immoral purposes". What?!?! Sex for immoral purposes DOES occur! Many rabbis limit this statement to the above case. A couple that has been married MUST share some level of mutual respect. He would not make his former wife into a "one night stand". But can we apply this principle to any couple that has had relations, while others merely knew about it? There were some views that this is, in fact, the case. There was an incident in the 1960s in which a young woman living in a Jewish commune ( a "havurah"; a shared group house, quite popular at that time) wanted to get married, and a very famous rabbi required her to receive a "get" from every male member of the commune. Most rabbis disagree, and say that in most cases couples having a brief encounter, or even living together for any length of time, cannot be assumed to be doing so for the purpose of marriage. But what if they are living together for a long time, presenting themselves as husband and wife? What if they have undergone a civil wedding, which, under Jewish law, has zero validity, but is perhaps, in fact, a public declaration of a desire to be married, with neighbors aware of the situation? Would this be like a situation of a man declaring that he is having intercourse with a woman for the purpose of "kiddushin" thus constituting a valid marriage, with the neighbors serving as witnesses? There were, in fact, many rabbis who considered this to be the case. Today, the consensus is that this does not constitute a marriage. Why? We only make the assumption of such intent in the Talmud's case of the newly divorced couple. Otherwise, we have no reason to assume such an intent unless openly declared..
But isn't a civil marriage a declaration of intent? Most rabbis say "no". The legal and halachic concepts of marriage are light years apart. Jewish religious marriage (and this is true of most religions) see marriage as a union of two souls. The State sees a contract of financial and social obligations. The State simply does not deal in "souls", "consecration" or even "love". So, is a civil marriage a declaration of a desire and willingness to merge two souls? The State would be the first to laugh at this. Every civil marriage is, in essence, a "civil union", not a marriage. (Interestingly, I am informed by a friend who is a Catholic Priest, that they recognize Jewish marriage as binding, but not civil marriage). Indeed, some rabbis require a "get" "just in case", but would not consider the lack of one to constitute adultery.
I am frequently called upon to perform Huppah and Kiddushin for couples who have been together for many years, but now wish to truly unite their souls. This is a happy event for them, as well as for me.