Question: A cousin of mine wants to marry his Jewish fiancée in synagogue. He was previously living with a Jewish woman and had a child by her, but they were never married. Does he need a get before the chupah can take place
Rabbi Naftali Brawer
Naftali Brawer is the CEO of the Spiritual Capital Foundation.
V The answer to your question rests on a landmark debate between the two great 20th-century halachists in America: Rabbi Moshe Feinstein (1896-1986) and Rabbi Yosef Eliyahu Henkin (1881-1973). They debated whether a purely secular civil marriage has any validity at all in Jewish law to the extent that the couple should require a get should the marriage be terminated.
The Mishnah (Kiddushin 1:1) states that a woman may be betrothed in any one of the following three ways; through a gift on monetary value, through a contract, or through the act of marital intimacy. While it is universally accepted to betroth with the first option (the giving of the ring under the chupah), if it could be established that a husband deliberately intended for the third option to be effective, the couple would be halachically married and thus require a get should they part.
The question at the centre of the Feinstein-Henkin debate is whether a man who opted out of a religious ceremony could be said to have any intention of effecting a betrothal with his act of intimacy. Rabbi Henkin insisted that we assume that this indeed was his intention. Rabbi Feinstein disagreed and ruled that strictly speaking the union does not constitute a halachic marriage and so if terminated, no get is required. Crucially, however, he added that it is best to play it safe and require a get lechumra (as an added measure of stringency.)
The rabbinic consensus is with Rabbi Feinstein's position.
In the case of your cousin, it appears that they did not even have a civil marriage. If it could be ascertained that they never considered themselves in any way to be married, then no get is required. The fact that they had a child together casts doubt on this though, and one would have to ascertain whether the baby was planned or not and whether or not they considered themselves as a family. These are very important questions and the couple should have a frank conversation with a rabbi about the nature of their relationship and their intentions towards one another throughout its duration. Only after carefully clarifying all the relevant details can a rabbi come to a decision.
Requiring a get might seem like a fail-safe position but it is not without its own difficulties. One such difficulty is that a divorcee cannot marry Cohen. It is unwise to place a woman in this position unless there is no other option.
Rabbi Jonathan Romain
Jonathan Romain is rabbi at Maidenhead (Reform) Synagogue.
V In earlier times, living together with someone was akin to marrying them and cohabitation was viewed as being husband and wife. (This, incidentally, is why a child born to two single people is not considered illegitimate and the term mamzer was applicable only to a child born out of a union that should not have taken place, such as incest or adultery).
Later, it was felt that having such ad hoc arrangements were too haphazard, needed public acknowledgement and should be legally ratified. This resulted in the ketubah, and then, once civil regulation became the norm, it led to all Jewish marriages being documented civilly too.
It means that although your cousin had a strong relationship with his previous partner - both living together and having a child together - it was never formally registered as a marriage and so does not need to be unregistered after they had split up. This is not to deny the relationship, but to address the legal aspect with clarity.
It might be argued that it is safer to have a get even if there is no marriage and no divorce, but that would create a precedent that would cause mayhem within the Jewish legal system. Would a get be necessary for any couple that had had sex together, or only if they had done so more than a certain number of times, or only if they were also living together, and, if so, after how many days, weeks, months or years?
Nor could producing a child be seen as a trigger condition for a get, as that is based on equally variable circumstances, be it from a one-night stand or from a ten-year relationship of a couple living apart the whole time.
But there are two other important considerations that need addressing before the marriage goes ahead. First, is your cousin fulfilling his financial responsibilities to his former partner and their child. He may not need a get, but he does need to be a mensch. This can also mean non-fiscal aspects, such as playing a positive role in the child's life.
Second, if the first relationship went wrong, what steps has he and his fiancée taken to ensure that the new one does not also founder? They (and every couple before their chupah) should do some pre-marriage guidance about their understanding of what marriage entails and their expectations of each other.