Telephone conference Marriage Recognized and Not Recognized by the Torah

Telephone Shiur #6 Wed night 9:30 PM    5/6/15   Call 605-562-3130 then code 411161#

Marriage Recognized and Not Recognized by the Torah  

  Rabbi Dovid E. Eidensohn/845-578-1917

1.       What kind of marriage is recognized by the Torah?

2.       When a Jew gives a ring or valuable object to a Jewish woman and says “you are mekudeshes to me” or a similar phrase, the woman is married to the man. EH 27:1. Marriage can also be created by giving a document of marriage to the woman and she accepts it, and it says that she is mekudeshes to the man who gave her the document EH 31:1. Also, if the husband has marital relations with a Jewish woman with intent to marry they are married EH33:1. Two Orthodox witnesses must witness any act of Kiddushin EH 27:2; 31:1; 33:1.  

3.       If witnesses know that a Jew and a Jewess are together and having marital relations, and we know that they were once married but now are divorced, we assume that their being together in front of witnesses or with the knowledge of kosher witnesses is an act of marriage and they are married EH 149:5.

4.       But if the two were not originally married and then divorced, we assume that the two intended not marriage but Zenuse and there is no marriage. Shulchan Aruch Even Hoezer 149:5.

5.       If a husband and wife are together in a community where marriage is often not established by Torah ritual but by governmental or social style, and the people probably consider themselves married, either because they are ignorant of the Torah or deny the Torah or ignore the Torah, we have a problem if kosher witnesses knew of them.

6.       The Gadol of America, Rav Yosef Eliyohu Henkin zt”l, wrote in Lev Ivro that when two Jews marry in a secular ceremony but they consider it marriage, or the type of secular marriage has a name, civil marriage, that indicates marriage and not Zenuse, we assume that they are married. (Lev Ivro page 12). Reb Moshe Feinstein zt”l disagrees EH IV:81. This is also a machlokess between the Ragetshover who is machmir and HaGaon Reb Yonoson Shteif who says the custom is to be lenient,  see Teshuvose Rav Shteif #118.

7.       If the husband and wife make a two ring ceremony, it would seem that both share in the act of Kiddushin, which could result in no Torah marriage at all. On the other hand, maybe the wife knows that her mother married with one ring, and she wants to give a ring only to be modern, but without violating the basic idea of Torah kiddushin. Reb Moshe Feinstein zt”l wrote in Even Hoezer IV:13:4 that in such a case the couple must be told by the rabbi that the marriage is when the husband gives the ring, and the wife may give the ring only after she is married by the husband’s giving of the ring, as a celebration of the previous act of marriage. But if this was not done, Reb Moshe does not know what to say, because who knows what the couple was thinking?

8.       Also in the time of Rav Henkin even secular people recognized the role of the male as being the head of the house and the woman he married came into his possession. Therefore, any kind of “marriage” would satisfy the Torah requirements. But today with gender wars and the women insisting on being equal to men “marriage” means not what the Torah calls Kiddushin, when the wife is possessed by the husband, but rather a partnership. If so, the “partnership” marriage does not create Torah marriage.

9.       Because of this, couples without kosher Kiddushin living together in New York or other areas where Orthodox Jews live and the couple has a de facto marriage without Kiddushin, we have a problem if by Torah law they are married. If they are married and broke up without a GET, we have a problem if the woman can remarry without a GET. And if she does remarry without a GET, we have a problem if the children are mamzerim.

1 .   A woman in order to gain entrance to a country pretends to marry a man who is a citizen of that country,  and she stays in his house, so that they both appear as man and wife. The man makes a condition he will do the woman a favor so she can enter the country, but she must stay in his house for three months and then she must leave and they will separate. Reb Moshe says she is not married by Torah standards. Igeres Moshe EV VI:112

1.   A woman is married to a man in a Reform ceremony. The man and his ancestors were Reform. Reb Moshe Feinstein zt”l in Igeres Moshe IV:75 says that there is no marriage. In that case the couple was together a short time and were not in a neighborhood with frumeh Yidden. Yet Reb Moshe says that if possible a GET should be given. But if this is not possible he permits the woman to remarry without a GET.

1.   A woman wanted to marry a Kohen but she is a divorcee. So she went to a Reform rabbi and married the Kohen. Reb Moshe says that she is not married to the Kohen because the Reform marriage is not a marriage. And if there are Orthodox people who know that they live together there may be kiddushin from biah, but that only applies to Orthodox people who don’t want to live with Zenuse. But people who go to Reform don’t  have compunctions with what we call Zenuse. So there is no marriage, because those who are hefker regarding Torah and mitsvose have no reluctance to make a Biah of Zenuse. Igeres Moshe IV:76.

1 .   In Igeres Moshe IV:77 Reb Moshe makes it clear that Reform people don’t make a ceremony of marriage acceptable to the Torah and they are deniers so that even Rav Henkin who considers civil marriage a Torah marriage would agree that this does not apply to Reform deniers of the Torah.

1    In Igeres Moshe IV:78 Reb Moshe says that a goy who is converted by a Conservative rabbi who is mechalel Shabbos who marries a Jewish woman with such a rabbi, she is not married. Rabbis known to be kofrim make invalid marriages and are invalid witnesses so she is not married.

1.   A woman who met a man and they married in civil court where there were no Orthodox witnesses and stayed together only a few days. She is not married as no Orthodox witnesses knew they were together. Igeres Moshe IV:80

1.   A Russian woman married there at a time when the government treated marriage as an easily broken thing and the government itself sometimes breaks up a marriage to serve the government. If the woman wants to be frum we can clarify what happened and find a reason to permit her to remarry. But if she won’t be frum we don’t  have to help her get married and live in sin. Igeres Moshe IV:81.

1.   See Reb Yonosan Shteif zt”l in his teshuvose207 is a Pilegesh permitted or forbidden. A Yevomo LaShuk who is a pilegesh is this permitted? See  his  teshuva at length forbidding a Yevoma LaShuk to be a pilegesh.

1.   A woman finds out that her husband is a mumar. Is this kiddushei toose? See Reb Yonosan Shteif 103. See degrees of Mumar in teshuvose Yam Shel Shlomo #41 that perhaps applies in this case also. See also Ayin Yitschok I:24 about mekach yoose in marriage.

1.   If somebody is married and takes another woman without kiddushin, and she stopped going to the Mikvah, and this goes on for many years, when she leaves the man, does she need a GET? Tsemach Tsedek from Lubavitch EH I:138 has lengthy discussion of this. He does not say a definite thing but concludes that there are proofs to be lenient. This is about a Pilegesh if she needs a GET.

  .  Regarding Pilegesh see Shulchan Aruch Even Hoezer 13:7: “A Pilegesh who lives only with one man who wants to marry somebody else must wait ninety days.” From this it seems that she does not need a GET because it only demands a delay of ninety days. The Gro there #19 says that she wants to have children. That is, they are married in practice if not with Kiddushin. And it would seem that there is no need of a GET as this is not mentioned. See Even Hoezer 26:1 a machlokess about Pilegesh forbidden or permitted.

  .   A husband is discovered to have a terrible fault such as being unable to have intimacy, we try to get a GET from him. If that is impossible, there is a great discussion in the Poskim. See Igeres Moshe EH1:80 at the end there his lenient opinion, and the opinion of the Gaon of Kovna in Ayin Yitschok EH 24 and Bare Yitschok 4 that this might be forbidden dirabonon.

2    Let us conclude that there is a great difference of opinion regarding many Jewish marriages, if they are valid or if people need a GET in order to remarry. We have previously discussed the issues of forcing husbands to give a GET that could make mamzerim.

2     It is a time to learn Even Hoezer, and each day, it is more important to learn Even Hoezer.