When Is Halachic Divorce Necessary?

When Is Halachic Divorce Necessary?

Rabbi Shlomo Riskin is chancellor of Ohr Torah Stone and chief rabbi of Efrat.

Candlelighting, Readings:
Shabbat candles: 7:03 p.m.
Torah: Deut. 21:10-25:19  
Haftarah: Deut. 21:10-25:19  
Havdalah: 8:02 p.m.

As a very young rabbi I had the privilege of visiting one of the most revered halachic scholars, Rav Yosef Eliyahu 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.

The issue related to a dispute about whether someone in a common-law, civil or non-halachic marriage needed a religious divorce (get) when dissolving the union. Rav Henkin maintained they would since they had presumptively consummated their union, and were publicly considered as husband and wife. One of his proof-texts was our Torah reading of Ki Teitze, which defines marriage: “When a man shall take a woman and have sexual relations with her…” (Deuteronomy 24:1).

Rav Moshe disagreed, saying that a get is a necessity only for a halachic marriage; the very concept of marriage is unique to the halachic context and therefore the halachic obligation of a get applies only within the unique rubric of a halachic marriage.

Rav Moshe Feinstein’s ruling has been widely accepted, and this has greatly minimized the problem of mamzerut (the illegitimate children of an adulterous relationship who are biblically prohibited from marrying legitimate-born Jews). Before Rav Moshe’s path-breaking decision, a woman (non-halachically wed) who received a civil but not a religious divorce and then remarried 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 remarriage rate, and the relatively small amount of gittin (halachically validated divorces) that 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 now behoove the Israeli religious establishment to welcome civil marriages. The fewer women who require religious divorces mean fewer cases of women chained to impossible marital situations that the Israeli courts will have to adjudicate.

The Talmud in Kiddushin explains the biblical word “kiha” by two different but complementary terms: kinyan and kiddushin. 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 a guardian: “When a man gives his friend money or vessels to guard” [Exodus 22:6], the Talmud in Bava Metsia 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. This commitment 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 kiddushin, “sanctification.” The Talmud links this to hekdesh, that which belongs to God [Kiddushin 2a-b]. From a Rabbinic perspective, this means that one’s spouse belongs to God, and that God 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 the classic marriage vow: “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” [Gittin 33a].

God, as well as the religious-judicial establishment, are partners in every religious marriage. It is precisely this partnership that clears the way for rabbinic judges to abrogate or annul a marriage if a husband is acting as a scoundrel, a measure that was taken five times in the Talmud by religious Courts.

Rav Moshe Feinstein argues that a halachic divorce is necessary only when the marriage ritual expressed a union that had initially been accepted as a spiritual ménage á trois: the husband, the wife, and the Almighty God or his deputies. n

Rabbi Shlomo Riskin is chancellor of Ohr Torah Stone and chief rabbi of Efrat.

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