7

If a couple goes to a rabbi asking for a get, he will tell them to obtain a civil divorce first. I heard of a couple who wanted ONLY a religious divorce. The reason was that the husband had a medical condition and was dependent on his wife's health insurance (through her employer) and she was not willing to cut him loose. They parted amicably and wanted to be able to have relationships (no marriage, of course) without feeling they were committing adultery. I don't know how it ended. Would a rabbi accept to give a religious divorce without a civil one?

  • 3
    At first glance I would say what impact should a civil divorce have on a halachic one, but at further thought this is actually a very interesting question on the parameters of ספר כריתות דבר שכורתה בינו לבינה. Further, while not directly a Gittin issue, would דינא דמלכותא דינא be relevant here? B”n I’ll look up the sources later and see what I can find. – DonielF Oct 8 '18 at 22:40
3

דבר הכורת בינו לבינה

The first issue is derived from the passuk, which describes a get as a ספר כריתות, a “book of separation.” To that end, Chazal derive that a get must completely separate between them. A classic example of this is that a get given on condition must have an “end date” for the condition; a man can give a get on condition that his wife not drink wine during the next 30 days, but he cannot give it on condition that his wife not drink wine ever (Gittin 21a, etc.). A nice summary of these halachos can be found in Shulchan Aruch, Even HaEzer 137.

The issue here is whether civil marriage is still considered a “connection” between them, that in order for them to be divorced halachically, they must be divorced legally as well. Or, more precisely, must any connections between them besides their original Kiddushin/Nisuin be broken as well, in order that the get be valid?

As this isn’t a point I’m 100% clear on, and to that end I’ve asked about it separately. Starting with the presumption that civil marriage has no halachic marital value (a presumption that I will challenge shortly), it should be no different than, say, a business contract, and, as such, whatever the answer is to the linked question will be the answer to this point. If a get is not binding without all ties being cut, then there’s your answer, but if it is binding, then this point is irrelevant and we can move onto the other problems. (I’ll update this paragraph to be more complete when I get a clear answer to this question.)


שלחה ואינה חוזרת

In your particular example there’s another issue which may arise. The Halacha is that the husband must, you know, actually send away his wife. To this end, the husband must not only be the one doing the divorcing, but even the wording of the get must make clear that he’s sending her away, rather than removing himself from her (Kiddushin 5b-6a). Likewise, if the wife doesn’t have full mental capabilities and can’t process that she’s actually being divorced, this would prevent the get from working (Yevamos 113b. Note that this Halacha holds true only on a Rabbinic level if she understands that she’s being divorced but still isn’t in full mental capabilities; they instituted this in order that she not be abused).

So in your case, where they still retain civil marriage because they “wanted to be able to have relationships,” they must be absolutely clear that they understand your parenthetical comment as well - as far as Halacha is concerned, they are divorced.


דינא דמלכותא דינא

Here’s the fun part. This entire time I presumed that civil marriage didn’t mean anything halachically, that it was just a formality to appease secular law. Is this actually correct?

There is a concept called dina d’malchusa dina, “the law of the kingdom is the law” (henceforth abbreviated DD). How far do we take this? The various opinions, in no particular order:

  1. The Rashbam (BB 54b, “v’ha’amar Shmuel”) is of the opinion that DD applies to taxes, etc., that everyone accepts upon themselves.
  2. The Ran (Nedarim 28a, “b’muchseh ha’omed me’eilav”) and the Rambam (Hil. Gezeilah VaAveidah 5:11) hold that DD applies to anything instituted by a non-Jewish government. Since all Jews share a portion of Jewish-controlled Eretz Yisrael, a Jewish monarch can’t threaten to expel a Jew if he doesn’t obey, while in any other country, that is perfectly legal.
  3. Rabbeinu Kerashkash (Gittin 10b, “v’ha d’amrinan dina d’malchusa dina,” often misprinted as the Ritva) learns that anything which is within the king’s power to impose (taking דינא דמלכותא to mean “the law placed on the king”) is binding (דינא), and if the king does something extralegally (what he terms חמסנא דמלכא), it is not binding. It seems that this is the opinion of the Shulchan Aruch (CM 369:8) as well.
  4. The Rashba (Gittin 10b, “v’i’ba’is eima”) places no restrictions on this. Anything which the government demands is law. The Rema’s personal opinion (CM 369:8) is this way as well.
  5. The Rosh (Nedarim 3:11) rules that DD applies only to taxes and property law.
  6. The Sma (CM 369:12) says that ultimately he is there at the pleasure of the king, but he can do whatever he wants in his own, private domain.

It would seem that according to everyone except for the Rosh, DD would extend to the realm of marriage as well. While obviously this requires one to get a civil divorce before remarrying in a country like the US which outlaws polygamy, how does this impact giving a get?

Now, there’s no law that directly impacts giving a get; as far as I’m aware no country has the law that not only must a couple get a civil divorce but also stipulates that the religious divorce does not work unless they are also civilly divorced. Even if such a country existed, DD can’t override a Torah law.

But it might be able to, indirectly.


דברים שבלב

Not that this would apply in your case, but let’s say that a couple divorces halachically and the woman remarries halachically, and they remain civilly married throughout the whole case. Can the husband claim that he “obviously” didn’t intend for them to be fully divorced until the civil divorce went through?

The general rule is that any stipulations that a person has in mind are only binding if they are said explicitly (Kiddushin 49b). As such, unless he explicitly states this, it would seem that this is not a valid claim.

However, the Gemara (50a) has the following to say on the topic.

The Gemara attempts to prove this concept, that words left unsaid don’t count, from the fact that we can force a person who swore to bring a Karban and refuses to do so to say that he wants to bring it, and this is a fulfillment of לרצונו - that it be brought willingly. Why don’t we say that in his heart he still doesn’t want to? We see from here that unsaid words don’t count.

But wait a second - maybe words in the heart do count, but since we know that he wants to achieve atonement, that’s what he truly wants! So we can’t prove anything from here. The Gemara then turns to other potential proofs before finally concluding that unsaid words really don’t count.

What we can prove, however, is that if it’s clear to us what he wants, he doesn’t have to say it explicitly. This is indeed the position of the Rema (CM 207:4). As such, perhaps one can argue that “I’m a law-abiding citizen, and of course I wouldn’t have divorced you without giving you a civil divorce as well!”


בקיצור

It would seem that there are several potential issues, but that most of them are not actually issues.

  1. A man must completely separate from his wife - I’m unclear whether this is applicable. To be updated IYH.
  2. A man must actually send away his wife - not actually an issue, but something to potentially be concerned for
  3. One must abide by the law of the land - while most opinions hold that this extends to marriage, it can’t override a Biblical law.
  4. Things left unsaid usually don’t matter - but perhaps, according to the Rema, one would get away with claiming that he didn’t want to divorce until he gave a civil divorce.

Final note: This was actually a fun problem to tackle, and thank you for forcing me to review Maseches Gittin tonight.

  • Please correct kamatz katan in korban. – Kazi bácsi Oct 9 '18 at 7:55
  • @Kazibácsi Of all things to nitpick, that’s your problem with this? :) To me that looks like a cholam. As I don’t differentiate between a kamatz and a kamatz katan, I tend to use an “a” in these cases, as in “arbitrary.” – DonielF Oct 9 '18 at 14:19
  • 1
    Wow, nice job! I hope you get an answer on the other question so you can complete this. – Monica Cellio Oct 9 '18 at 15:53
  • Indeed, I've read the whole answer, but to be honest (besides the important points you discuss in detail), I'm not 100% sure how does this answer the question. The key question you raise yourself is whether civil marriage was a link that prevents a get. But I didn't want to be nasty. – Kazi bácsi Oct 9 '18 at 16:51
  • @Kazibácsi There were two main points I attempted to address, whether civil divorce prevents a get, and whether civil divorce is required independent of the get. – DonielF Oct 9 '18 at 17:00
1

In theory, sure, why not? Generally today a beis din will first handle the Get, and then if the couple agrees to use them, hear the case of how to split their assets -- so a Get may not be the absolute last step before these people have truly severed all bonds.

The Get can often be faster; some states require that the couple be living in different houses for a year before a civil divorce can be granted. In some circumstances the Beis Din will be satisfied that divorce is the best option well before that whole year.

In fact, New York's "Get Law #1" (which was endorsed by R' Moshe Feinstein zt'l) requires that before a couple obtains a civil divorce, they have to sign an affidavit stating that there are no moral obstacles in the way of the other party getting remarried. (I.e., they already did the Gett.)

There was some story where they got a halachic Get before a civil divorce, and a few months later the ex-husband turned around and got a halachic (but not civil) wedding, which bothered the ex-wife. My understanding at this point is that if the Beth Din of America will do the Get before the civil divorce, but often not release a document certifying it until after the civil divorce is done. (That way both sides will wait to remarry -- through whatever system -- until the civil paperwork is done.)

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .