Last week we discussed various proposed methods for allowing a couple to deliberately live together in a formal and religiously recognized relationship without necessitating a get should they separate. I argued that such methods would generally be ineffective and even counterproductive.
That discussion was almost entirely lekhatchilah (beforehand), however. Faced by a modern agunah situation (and often in cases of mamzerut as well), any beit din will look to see if bediavad (after the fact) it is possible to declare that the relationship never constituted kiddushin, and therefore no get is necessary. (This technique must be sharply distinguished from afk’inhu, or annulment, which may involve retroactively causing the relationship to never have constituted kiddushin. That will be discussed some weeks hence). One can accomplish this inter alia by questioning
A) whether the parties intended to enact kiddushin
B) whether the parties entered into the relationship willingly
C) whether the parties entered into the relationship adequately informed about each other
D) whether the object of value (ring) belonged to the groom before being transferred to the bride
E) whether the bride acquired something of value without giving equal value for it other than agreement to marry
F) whether the bride and groom understood that the transfer of the object of value effected marriage
G) whether the ceremony took place in the presence of valid witnesses.
In this post we’ll discuss A).
Here we need to distinguish two kinds of cases: those in which no attempt was made to conform to the halakhic norms of kiddushin, and those in which such an attempt was made.
The most common case of the first kind is where the couple had a civil rather than a religious ceremony.
It might be thought obvious that in such cases no get is necessary. However, halakhic marriage can be effected via sexual relations as well as through ceremony, and the Talmud in various places established the principle ein adam oseh beilato beilat znut = “a man does not make his sexual act one of promiscuity”. Now this obviously is not a claim that all male sexual acts are intended to accomplish marriage. Rather, it is a claim that in a marital context, a man will stipulate that he has whatever intentions are necessary to make his sexual acts marital. The halakhic tradition has sometimes taken this as a presumption that in a committed monogamous relationship, the first sexual act was intended to effect kiddushin. The great 20th century halakhic decisor Rabbi Yosef Eliyahu Henkin famously held this about couples who publicly identified as husband and wife in the presence of a Jewish community. Rabbi Moshe Feinstein famously disagreed, and there is testimony that Rav Henkin did not hold to his position in cases of mamzerut. It is also possible to distinguish (either way) between
a) situations in which there is a readily available option for ceremonial kiddushin (such as the United States) and opting for purely civil marriage likely expresses indifference to religion, and
b) situations in which there is a readily available option for ceremonial kiddushin (such as Israel) and opting for purely civil marriage requires a trip to Cyprus and may express hostility to religion (although we should distinguish hostility to a particular rabbinic bureaucracy from hostility to Halakhah generally), and
c) situations in which there is no readily available option for ceremonial kiddushin (such as under Communism in the USSR)
In cases of agunah I believe that most batei din would rely on Rabbi Feinstein in cases of purely civil marriage, or at the least refer the case to another beit din that relies on Rabbi Feinstein.
Another case of the first kind is where there was a religious ceremony that deliberately disassociated itself from halakhic kiddushin. For example, a Reform colleague and I years ago considered proposing that the Reform ceremony include the words “shelo kedat Mosheh v’Yisroel” =” not in accordance with the laws of Moses and Israel” to make explicit its rejection of kiddushin, from his perspective to avoid association with what he understood as a patriarchal institution (but see the discussion of kinyan acharayut last post), and from mine to prevent any risk that remarriage without a get would produce mamzerut. If it can be established that the couple was making the choice to avoid kiddushin consciously while committing to the relationship, i.e. that they did not consider themselves to be engaged in promiscuity, there should be no presumption that a later sexual act was intended to effect kiddushin, even according to Rav Henkin.
But this is not obvious. If one holds that intent-for-kiddushin, or da’at kiddushin requires specific religious content, the argument is compelling. Some argue, however, that intent for any relationship which both parties agree imposes a religious obligation of sexual fidelity on the woman constitutes da’at kiddushin; some might not require agreement that the obligation is religious in nature. If the parties reject other aspects of kiddushin, such as the husband’s physical obligations toward the wife, they are considered matneh al mah shekatuv baTorah = stipulating against Scripture. In such cases the rule is maaseh kayam utenai batel = the action takes legal effect but the stipulation is a nullity. In other words, the couple is married, and each party has all the obligations of marriage.
I think that this is too broad a definition of intent-for-kiddushin. My preferred alternative is that we define da’at kiddushin as intent for a relationship that imposes an obligation of sexual fidelity on the woman that can be dissolved only via a get. If the groom does not intend to impose such an obligation on the bride, as would be the case in all such ceremonies, then in fact no kiddushin can have happened and no get is necessary, even though halakhically this means that all sexual acts during the relationship are considered znut.
I cannot say at this point whether/when batei din would accept my preferred formulation lehalakhah. However, my sense is that in cases of agunah, most batei din would adopt some formulation of daat-kiddushin that would allow the woman to remarry, or at the least refer the case to another beit din that adopted a formulation sufficiently narrow to allow the woman to remarry.
Many Reform and most Conservative wedding ceremonies, however, do adopt or adapt halakhic language and ritual to an extent that make it very hard to argue that the couple explicitly intends to avoid kiddushin. Reasonably, most couples emerge from such ceremonies feeling that they have entered into whatever Judaism considers marriage. Factors other than lack of da’at kiddushin are therefore necessary to free agunot who were married in such ceremonies.