REMARRIAGE OF RUSSIAN IMMIGRANTS

QUESTION:

Almost all of the married Russian immigrants nowadays were married in the Soviet-style civil ceremony. An Orthodox colleague suggested that the immigrant couples should be remarried with Jewish marriage. Is this necessary? (Asked by Rabbi Richard A. Zionts, Shreveport, Louisiana.)

ANSWER:

SADLY ENOUGH, this is not a new question. It came up frequently and grievously after the fifteenth century, when Marranos kept escaping from Spain and Portugal into Jewish communities. These Marranos had been married as ostensible Christians in the church by a priest.

When they escaped, the question of the Jewish legitimacy of their marriages came up in a tragic form. Generally Marrano couples did not escape together and by the same route. For safety’s sake they escaped separately by different routes. So it would happen that a wife would safely reach a Jewish community and the husband would be lost and never appear. The woman, then, was an agunah and could never marry anyone else.

There was a strong humane tendency on the part of the rabbinate to declare the Marrano church marriages null and void so that the woman need not remain an agunah. The classic responsum on this matter, and in the circumstances just outlined above, was by Isaac bar Sheshes in Algiers, in his responsum # 6. On the basis of this responsum, Joseph Caro, in the Shulchan Aruch, Even Hoezer 149:6, says that the marriage of two apostates has no Jewish validity, and Isserles to Even Hoezer 26:1 makes virtually the same decision. However, even in the early decisions with regard to the Marranos, there were some doubts as to this negative decision. It might have been, for example, that before going to church, the Marrano couple had met privately and a ring was given and the proper words were recited. Also, if there were Jewish witnesses present, that too would count toward making the marriage Jewishly valid.

It is relevant to the present question that Isaac bar Sheshes, whose responsum is the source of the decision that the Marrano church marriage had no Jewish validity, gives two main reasons for his opinion. First, the couple made no attempt to have some sort of Jewish marriage but seemed completely content with the church marriage; hence, he said, it is clear that it was not their intention to have marriage in the Jewish sense kiddushin. Second, there were no witnesses to the fact that the couple lived together as man and wife. Had there been such Jewish witnesses, he says, then the marriage could have been considered valid on that basis alone ( ayday yichud).

Applying these two arguments to the situation of the Russian immigrants, we must say, first of all, that we do not know that they were quite content with the Soviet-style civil marriage. It well may be that they would have preferred to have a Jewish religious type of marriage. This preference has bearing on the Jewish validity of their marriage because it would indicate an intention that the relationship should be truly a marriage, and such an intention counts toward according the relationship Jewish validity. Secondly, it well may be that even if they were married only in the Soviet registry office, they lived together in the presence of other Jews as man and wife. That fact, too, would tend to give Jewish validity to their marriage.

In modern times this question has come up very frequently. There are no Marranos forced into another religion to save their lives, but there is a widespread availability in the western lands of civil marriage. Very many Jews are married by a judge or a justice of the peace. The old question, therefore, comes up again. Are these civil marriages, which are without Jewish religious ritual, to be considered valid marriages by the Jewish religion? The reason for the widespread discussion of this question is basically the same as it was with the Marranos. It is a question of Jewish divorce, the get. If, as often happens, an ex-husband is no longer available to give a get, the woman remains an agunah and cannot remarry Jewishly.

Therefore, there is a tendency among some authorities to find ways of considering the civil marriage invalid Jewishly so that the woman may not need a get and so can remarry. But since civil marriages are now widespread, it is an extremely delicate matter to declare the marriages of tens of thousands of Jews invalid. Therefore, there is uncertainty among the scholars.

The well-known authority Joseph Henkin, in his Prushey Ibra, accepts the validity of civil marriages. After all, a ring is exchanged, words of marriage are spoken, and generally the couple lives in a Jewish community, where they are known as man and wife. The one authority who is inclined to invalidate civil marriages is Moses Feinstein, but he is always strict. In the case of the unavailability of a get, he declared marriages by a Reform rabbi null and void. So it is not surprising that for the sake of an agunah and in general, he would consider non-Orthodox weddings invalid. However, he is aware that the subject is debatable, as can be seen by the very fact of how often he discusses it in the various volumes of Igros Moshe. And even he, strict as he is, will admit the validity of a civil marriage under certain special circumstances which have direct bearing on the question asked. In his responsum # 7 5, he speaks of a couple who married in court but have frequently lived together in a Jewish environment, so there are “kosher” Jewish witnesses who know them as man and wife. This would make the marriage valid. So he concludes that such marriage is valid enough to require a get, though he would be willing to invalidate even this marriage in order to rescue an agunah.

Now directly as to the Russian immigrants, they are not apostates to another religion, whose marriages Joseph Caro and Isserles would declare invalid. They were simply required to go through civil marriage. It was not their choice. They considered this a marriage, and they meant it to be valid marriage, not an adulterous relationship. Furthermore, if at that civil marriage, the man gave the woman a ring and said words indicating marriage, that fulfills the need for Jewish marriage, which requires “he must give and he must say . . .” Besides, there may well have been Jewish witnesses at the ceremony, and moreover, most of them lived in a Jewish community, and there certainly may have been secretly observing Jews there, who knew them as married. All this is enough to make their marriage valid as Jewish marriage.

To require them to be remarried is to tell them thereby that the Jewish community which now welcomes them, considers that they have been living together without legal marriage. Such an attitude would be completely unjustified in light of the reasons given above for accepting their marriage as Jewishly valid.

Furthermore, we have now, in every modern Jewish community, a considerable number of couples who have been united only by civil marriage just as the Russian immigrants have. Will we undertake to say that all of these also are not living in valid marriage? Of course, if any of the Russian immigrants, of their own accord, were to ask for a Jewish ceremony, that might be allowed them, but even in this regard, we should hesitate because it would imply that they were not validly married hitherto. We might conduct such an occasional religious marriage, but certainly not require it as essential.