Q&A: The Halakhic Validity of Civil Marriage
The Halakhic Validity of Civil Marriage
Question
Hello Rabbi,
I am currently studying for the rabbinate exam on the laws of the wedding canopy and betrothal. In the Shulchan Arukh (Even HaEzer 26:1 in the Rema and the commentaries there), it is explained that for someone who does not observe Torah and commandments, the rule "a person does not render his intercourse promiscuous intercourse" does not apply. Therefore, if a man and woman live together as a couple for years, and even if they married one another in a civil marriage, the woman does not have the status of a married woman.
This is the language of the Rema: “A gentile who married a gentile woman according to the customs of the gentiles, and likewise an apostate who married an apostate woman according to their customs, and afterward they converted—there is no concern for betrothal here at all, and she may leave him without a bill of divorce. Even though she remained with him for several years, it is nothing more than mere promiscuity.”
We know that a couple relationship also exists among gentiles, including from a halakhic standpoint. After all, one of the seven Noahide commandments is the prohibition of forbidden sexual relations, and a gentile who has relations with another man’s wife is liable to death.
My question is: why, when the marriage is not anchored halakhically, is the relationship considered “mere promiscuity,” as the Rema defines it? Why not say that even if the halakhic level is absent, the general human level still exists, and the man and woman should be considered a couple at least on the gentile level? Why not say that as long as there has been no clear separation, such as a civil divorce, the woman is considered a married woman, and one who has relations with her would be liable to death?
Answer
Correct. Their status is like that of a publicly recognized common-law couple, or a Noahide marriage. True, one might have said that if they had wanted to formalize the relationship they would have married according to Jewish law, and therefore if they did not marry, they have no couple status at all—but that is forced. Today many people do not want to marry according to Jewish law because they object to Jewish law and to the rabbinate, but they still want to formalize the relationship.
The relationship is considered mere promiscuity only in the sense that she is not a married woman and does not need a bill of divorce. But it is certainly not promiscuity, since this is just an ordinary Noahide marriage. In what sense would it even be called promiscuity? Perhaps among apostates it is promiscuity because they lived without betrothal according to the law of Moses and Israel, but among gentiles certainly not.
Of course, a relationship without betrothal does not require a bill of divorce (contrary to Rabbi Dichovsky, who wanted to define Noahide marriage בעקבות the Rogatchover and require a bill of divorce).
Separation in a Noahide marriage is simply the decision to separate. See Maimonides, Women, Laws of Marriage.
Discussion on Answer
A. Correct. Formalization in official records is certainly the highest level, but I’m not sure it is necessary. If their intention is to live together as a couple, that is a Noahide formalization, as described there in Maimonides.
B. Certainly not. There is no prohibition here of relations with another man’s wife, and no liability for death. This is a basic concept of marital relationship outside the Torah. The death penalty and the prohibition that carries it come in the wake of betrothal.
C. That is hard for me to answer. I would guess that it depends on the accepted norm in the world, since this is a moral prohibition and not a halakhic one (though it has halakhic implications: from the moment he set his mind on divorcing her, he no longer has rights to her produce; according to some opinions he does not become impure for her and does not inherit her; and relations with her are also forbidden—"divorced in his heart").
D. I don’t have it at hand. I’m sure you can find it online in many places.
Regarding B, liability for death for someone married in a Noahide marriage:
Why did you write that there is no liability for death? After all, a Noahide is executed for relations with another man’s wife, where she was married in a Noahide marriage. Is the law for a Jew more lenient, so that he is executed only for a woman married in a Jewish marriage?
Very true, unless a religious court in Israel were to impose a death penalty outside the framework of Jewish law. But regarding punishment, it was not said that “there is nothing forbidden to a Noahide that is permitted to a Jew.” Theft and the other Noahide transgressions prove the point.
Thank you, Rabbi.
Following up on the above:
A. When do we define a Jewish couple as married in a Noahide marriage? Presumably the highest threshold of formalization is registration with the state authorities, in this or another country. But there are couples who live together for long periods without registration, and there is an understanding between them that the relationship is exclusive, meaning that it is forbidden to sleep with another person. Sometimes the relationship gradually becomes more solidified; what begins as a romance turns into a partnership. At what point do we define the relationship as a Noahide marriage, regarding the issue that having relations with the woman is considered the sin of relations with another man’s wife?
B. If there is indeed a prohibition involving another man’s wife, is the punishment death by a religious court?
C. What is the law when there is an agreement between the couple that they may have relations with outside partners—does that uproot the marriage? Or does the Noahide marriage continue to exist, alongside a situation in which relations with others are defined as a transgression? And is there a practical difference between a case where the agreement between the couple was made from the outset when the relationship was established, and a case where the agreement was made later? And is there a difference between a case where there is blanket permission to have relations with anyone, and a case where the permission is not blanket but subject to conditions, such as conditions regarding with whom it is permitted and with whom it is not?
D. I would be glad if you could point me to a source for the Rogatchover’s statement, and for Rabbi Dichovsky’s statement.
Thank you very much!