The halachic validity of civil marriages
Hello Rabbi,
I am currently studying for the Rabbinical exam in the field of wedding ceremonies and kiddushin. The Shulchan Arba (Ahaza 26:1, B.A. and Ben-Ach) explains that someone who does not observe Torah and mitzvot does not fall under the rule, “No one makes his excuse for fornication.” Therefore, if a man and a woman live together as a couple for years, and even if they married each other in a civil marriage, the woman is not considered the wife of a man.
This is the language of the Rema: A Gentile who marries a Gentile according to Gentile etiquette, and a converted woman who marries a converted woman according to their etiquette and later converts, there is no concern here about sanctification at all, and it is permissible to leave him without a get, even if he has been with her for several years, it is nothing more than adultery.
We know that even among Gentiles, a marital system exists, even from a halakhic perspective. After all, one of the 70 commandments of the Noahide is fornication, and a Gentile who comes to his fellow man’s wife is liable to death.
My question is, why is the relationship considered ‘fornication with a husband’ when the marriage is not halakhically anchored, as defined by the Rema? Why wasn’t it said that even if the halakhic level is not present here, the general human level exists, and the man and woman will be considered a couple at least on a gentile level? Why wasn’t it said that as long as there is no clear separation (civil divorce), the woman is considered the wife of a man who will commit suicide?
True. Their status is like that of a public figure or a Noahide marriage. It would be fair to say that if they wanted to formalize the relationship, they would marry legally, and therefore if they didn’t marry, they have no marital partner at all, but this is pressing. Today, many people don’t want to marry legally because they oppose halakha and rabbinate law, but they do want to formalize it.
The relationship is considered prostitution only for the fact that she is not the wife of a man and does not need a divorce. But it is certainly not prostitution, since this is a normal Noahide marriage. What is the point of saying that it is prostitution? Perhaps among the Mushumedim it is prostitution because they lived without sanctification as the Jews did, but among the Gentiles it certainly is not.
Of course, a marriage without kiddushin does not require a get (contrary to the words of Rabbi Daychovsky, who wanted to define the marriage of the sons of Noah in the light of the Rogatshuver and require a get).
Separation in a Noahide marriage is the very decision to separate. See Rambam, Ish HaLesh, Marriages.
Thank you Rabbi.
Continuing on to the following:
A. When do we define that Jewish couples are married in a Noahide marriage? Probably the highest level of institutionalization is registration with the state authorities (this or that state). But there are couples who live together for long periods without registration, and there is an understanding between them that the relationship is exclusive (that it is forbidden to sleep with another person). Sometimes the relationship becomes closer, what starts as a friendship turns into a relationship. When do we define the relationship as a Noahide marriage, in the sense that having relations with the woman is considered a sin for a man's wife?
B. If there is indeed a sin for a man's wife, is the punishment a death sentence?
C. When there is an agreement between the couple that it is permissible to have relations with outsiders, does this uproot the marriage? Or does a Noahide marriage continue to exist, alongside the situation in which having relations with others is defined as a sin? And is there a difference between a situation in which the consent between the spouses was received in advance when the partnership was established, and a situation in which the consent was received later? And is there a difference between a situation in which there is a blanket permission to have relations with any person, and a situation in which the permission is not blanket and subject to conditions (such as conditions as to who to have sex with and who not to have sex with)?
D. I would be happy if you could cite a source for Rogetshover's words, and for Rabbi Daychovsky's words.
Thank you very much!
A. True. Establishment in the records is certainly the highest degree, but it is not certain that it is necessary. If their intention is to live together as a couple, it is the establishment of the sons of Noah as described there in the Rambam.
B. Certainly not. There is no prohibition of a man's wife here and no obligation to die. This is a basic concept of marriage that is outside the Torah. The penalty of death and the prohibition that requires it are due to the sanctification.
C. It is difficult for me to answer that. I suppose it depends on the accepted norm in the world, since this is a moral and not a halakhic prohibition (although it does have halakhic implications: once he has set his eyes on a divorced woman, he no longer has any fruit, and according to some opinions she is neither defiled nor permitted, and it is also forbidden to have marital relations with her - a divorced woman of the heart).
D. I don't have it. I'm sure you can find it online in many places.
Regarding B’, the obligation of death for someone who married in a Noahide marriage.
Why did you write that there is no obligation of death, since a Noahide man was killed for the wife of a man who married in a Noahide marriage. Is the law easier for Israel, and he was killed only for someone who married in an Israelite marriage?
Very true, unless the law of Yishkal determines a death penalty outside of the law. Regarding punishment, it is not said, “Here is what Noah’s descendants are forbidden, and Israel is a ruler.” And theft and other offenses of the sons of Noah will be proven.
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