CCAR RESPONSA
Divorce and Legal Separation
5758.13
She’elah
I recently met a man whom I was interested in dating until he told me he was married but separated for 16 months. Having told him I did not want to date him until after he was divorced, he told me that the divorce procedure was in process and that he considered his marriage to be only a legal technicality. He asked me to reconsider my position. I am still uncomfortable about dating him, because: 1) “legal technicality” or not, he remains another woman’s husband until his divorce; and 2) I see no satisfactory way that his children (ages 15, 14, and 4) could be reconciled to the fact that their father was dating another woman while he was still married to their mother. To my surprise, my friends tell me that I am being too rigid in my thinking. How does Jewish ethics counsel me?
Teshuvah
We hope that you will find our responsum helpful. While we cannot speak at this distance to the personal aspects of your relationship with this man, we do want to address your desire for counsel from the standpoint of Jewish ethics. And “Jewish ethics”– the tradition of our people as developed through the age-old conversation over the meaning of our sacred texts-most definitely has something to say concerning the nature of the ties we form through the act of marriage.
This man and your friends seem to agree that, although his marriage has not yet been officially dissolved, his separation from his wife and his intent to divorce her mean that his marriage has indeed come to an end for all practical purposes. It is, as he puts it, a mere “legal technicality,” not a real marriage in essence and in substance. The state, to be sure, disagrees; it regards him as married to his wife, with all the legal and monetary consequences that flow therefrom, until such time as the divorce becomes final. But he and your friends contend that as a matter of ethics the continued existence of his marriage is not something to be taken seriously. They contend, in other words, that there is no moral or religious objection to your building a relationship with him now as though he were single.
On what do they base this contention? We cannot be certain, of course, but we think it reasonable that their argument resembles the following: marriage, as a religious and moral matter, is a spiritual commitment between two persons. Its force derives from and depends upon the lasting power of that commitment. It is that very commitment, the bonds of devotion, constancy, faithfulness, and the willingness to care for one another, which defines the “true nature” of marriage in religious and moral (as opposed to purely legal) terms. It follows, according to this argument, that once the commitment has so obviously weakened that the couple are no longer united by these bonds, then the marriage itself, as a religious and moral matter, no longer has meaning and has ceased to exist. And it follows from that conclusion that you are doing nothing “wrong,” religiously or morally, in pursuing a sexual relationship with this man even though his divorce is not yet final.
Jewish tradition, however, contradicts this line of thinking. Jewish marriage is very much a legal institution, a set of relationships expressed in the form of duties owed by the couple to one another, obligations enforceable in court or for whose non-performance various legal remedies can be obtained. It is composed of two elements: kiddushin (or erusin), a “betrothal” which creates a legal bond that can be severed only upon death or divorce;[1] and nisu’in (or chupah), the ceremony by which husband and wife are permitted to live together conjugally and at which time the various financial commitments of marriage take effect.[2] These commitments between husband and wife remain in force until the legal dissolution of the marriage or until a Jewish court (beit din) rules that they are no longer owed due to the conduct of one of the parties. Indeed, the ketubah, the so-called “Jewish marriage contract,”[3] is in fact a financial obligation undertaken by the husband in the form of a lien on his estate, payable to his wife and her heirs in the event of divorce or the husband’s death.[4] None of this detracts from the great importance that Judaism places upon the personal, emotional, and spiritual aspects of marriage. It does demonstrate, however, that our Jewish tradition understands marriage as an institution, a fixed relationship between wife and husband which endures until it is brought to an end by legal or biological means. To put in another way: Jewish marriage continues to exist, even when the couple are no longer in love and even if it is their clear intention to divorce, until such time as Jewish law regards the marriage as ended.
Against this, it might be argued that Reform Judaism has departed radically from this traditional conception of marriage, since we have apparently ceded all legal and financial aspects of the marital bond, including divorce, to the exclusive control of the civil state. This would imply that we no longer look upon Jewish marriage as a legal institution at all and that our only concern as a religious community is with marriage as a purely spiritual or emotional bond between the couple. It would be a serious mistake, however, to draw this conclusion. Reform Judaism continues to regard marriage, in the full sense of that term, as a complex set of mutually-binding obligations which come to an end only upon the legal dissolution of the couple’s union. The fact that the North American Reform movement no longer requires a Jewish bill of divorce (a get) to dissolve the marriage does not mean that we are somehow indifferent to divorce as a matter of religious concern,[5] but rather that we look upon civil law and the array of sanctions it wields as a more efficient means of bringing the marriage to an end and of safeguarding the interests of all the parties involved. Indeed, the leaders of the Reform movement who at the Philadelphia Conference of 1869 accepted the validity of civil divorce did so largely on the basis of a legal argument: namely, the traditional Jewish legal doctrine of dina demalkhuta dina, the concept the acts of civil courts in matters of monetary law are binding at Jewish law as well. We do not, in other words, “abandon” our concern over divorce to the state; rather, we regard the state as our agent in processing the divorce, at the conclusion of which we-as a matter of Jewish law–will permit the remarriage of the parties.[6] Similarly, we leave to the civil law the task of helping to determine and enforce the economic ties between the couple, on the traditional Jewish legal grounds that a husband and wife may contract to arrange these relationships in any way they see fit and because it is our custom to arrange these matters in the civil courts.[7] Kiddushin remains for us, as it was for our ancestors, a legal relationship, in which the couple bear mutual obligations that continue to exist until the marriage is brought to a formal conclusion.[8]
Conclusion. Marriage is not solely a legal institution, and it would be a mistake to think of it in such narrow terms.[9] Nonetheless, it is a legal institution which imposes duties upon the couple that remain in force until such time as the marital relationship ends. This is true according to both the law of the state, and it is true according to Jewish tradition. Your discomfort at dating this man prior to his divorce is therefore well-founded. And even though he and your friends may regard you as “too rigid” in your thinking, the fact remains that you are right.
NOTES
- The classic statement is M. Kiddushin 1:1.
- Yad, Ishut 12:1ff; SA EHE 69.
- After the title of the monograph of Louis Epstein, The Jewish Marriage Contract (New York, 1927).
- It is important to remember that although the ketubah document is worded in the form of a freely-undertaken promise by the husband to the wife, its terms are established by Jewish law and are enforced by the court whether or not he writes a ketubah or includes them explicitly in its text. See M. Ketubot 4:7-12; Yad, Ishut 12:5; Tur, EHE 69; SA EHE 69:1.
- Witness the “Ritual of Release” now included in Ma`agaley Tzedek: A Rabbi’s Manual, at 97-104. Significantly, the Notes to the Manual describe this ritual, though by no means a requirement for the remarriage of either spouse, as “a form of religious divorce” (p. 245).
- On the doctrine of dina demalkhuta dina, see our responsum 5757.1. On the question of Reform Judaism and divorce, see the first section of our responsum 5756.15 at notes 1-10. While we critique there the notion that Jewish law conceives of divorce as a matter of “monetary law,” the point is that the 19th-century Reformers who argued for the acceptability of civil divorce did so largely on traditional halakhic grounds and in the language of Jewish legal discourse. Hence, we continue to conceive of marriage as a legal bond, the dissolution of which is to be understood and explained in legal terms.
- On the freedom to contract over matters of monetary law, see BT Bava Metzi`a 94a and Yad, Ishut 6:9. On this basis, the couple can stipulate that the income of each remain independent of the other; traditionally, this stipulation is made during the period of time between kiddushin and nisu’in. For details and sources, see B.Z. Schereschewsky, Diney Mishpachah (Jerusalem: Rubinn Mass, 1993), 103-104.
- See our responsum 5756.8, particularly at section II., “Kiddushin, Reform Judaism, and Homosexuality,” for a discussion of the continuing relevance of the traditional concept of kiddushin. See as well our responsum 5756.10, “Long-Term Non-Marital Relationships.”
- Among other sources, see BT Yevamot 62b-63a for an expression of this point.
If needed, please consult Abbreviations used in CCAR Responsa.