DIVORCE FOR A DOUBTFUL MARRIAGE

QUESTION:

A Jewish couple was married by civil ceremony in Russia and then they parted without any divorce. The man now lives with a Greek Orthodox wife. It is not clear whether the man formally became a Christian. The first wife wants to marry a Jewish man. Does she need to get a divorce (a Get) from the first husband before she can enter into a Jewish marriage? (Asked by Rabbi Josef Zeitin, Odessa, Texas.)

ANSWER:

THERE ARE A NUMBER of complex questions involved in this situation or else the question would not have been asked at all. First of all, is the original civil marriage between these two Jews in Russia to be considered a valid marriage which can only be broken by death or a Get? The second question is, if the marriage is a valid Jewish one and if this man is to be deemed an apostate (a Mumar), does he still have the right to give a Jewish Get, and then does she have to bother to get it from him?

As to whether that Russian civil marriage is to be considered a valid marriage in Jewish law is a rather open question. I do not have the books with me now, but I remember that it came up with regard to exiles from Spain in the period between 1396 and the final expulsion in 1492. Shimon Duran of Algiers had to decide the question whether a Jewish couple married even in a church could be deemed Jewishly married or not (Tashbetz, Vol. 3:47). The answer depended on whether the man gave her a ring and said the proper marriage words and, also, if the man intended the marriage to be a valid Jewish marriage. If the above conditions were met, then whatever words the priest may have uttered were merely irrelevant. The marriage was a Jewish marriage by the actions and the words and the intentions of the Jewish man to a Jewish woman. So it is with the civil marriage. If the man meant it to be a Jewish marriage and gave her a ring, then what the Russian judge may have said was of no intrinsic significance. But if the man had no such intention (of it being a Jewish marriage) then it was not a valid marriage and she would not need a Get.

There is also another consideration involved. In the case of those Marrano marriages, another necessary element was mentioned, namely, that there were other Jews present at the ceremony. Since a Jewish marriage requires at least two valid Jewish witnesses, it is this last element (which I might have mentioned above) which was used by the famous Rabbi of Kovna, Israel Elchanan Spector, in the case of such a marriage (En Yitzchok, Even Hoezer 47) : A Jewish soldier and a Jewish girl had no proof that they were married. It may be that they just lived together as husband and wife; but if they lived later in a Jewish community and were known in that community as husband and wife, then the community itself became, as it were, witnesses to their being married.

Now let us assume (which is doubtful because of the requirements mentioned above) that this marriage is valid, does she need to get a Get from this particular person, who is now living with a Christian wife and who may or may not have converted to Christianity?

In answer to this, it must be stated that it is an open question in Jewish law whether one needs to get a divorce from an apostate. What is involved in the complicated debate (Get Mumar) is when he became an apostate, etc. This man may be an apostate or, at all events, he belongs to the category of “those who depart from the ways of the congregation,” i.e., one who has purposely and consciously isolated himself from the congregation. So it is an open question whether she needs a Get from him.

Clearly it must be assumed that it is very difficult to get a Get from him, if it is not impossible to do so. And it is always our duty to deliver a woman from the state of being an Agunah. In this case, we should bear in mind that Moses Feinstein, the greatest Orthodox authority in America today, and the head of the Agudas Ha-Rabbonim, in order to free an Agunah who could not get a Get from her former husband, discovered that the marriage was conducted by a Reform Rabbi. On that basis (that there were no valid witnesses, etc.) he took the bold step of declaring the marriage invalid and the Get unnecessary (Igros Moshe, Even Hoezer # 7 6) . Now, if he declared a Reform marriage conducted with all solemnity as invalid, in order to perform the Mitzvah of freeing an Agunah, how much the more may we do so with regard to a Russian civil marriage.

To sum up: The marriage itself is of doubtful validity, since we do not know about the man’s action, the ring, his intentions, the presence of valid witnesses, etc. Also, we do not know whether the man is a Mumar or not. At all events, the woman is a helpless Agunah and it is our duty to liberate her from that state; and in the situation mentioned above, there are so many uncertainties that we may safely consider her free to marry again without a Get.