Jewish marriage, as we have seen, must follow the process ordained by "the laws of Moses," which he received on Mount Sinai, and "of Israel," the Oral Law as developed by the teachers in the Talmud, Codes, and Responsa. As early as four hundred years ago, however, there arose the problem of Jews marrying in violation of that ordained process, rejecting or ignoring Jewish marriage. In those early days, non-Jewish marriages were often compelled by unfriendly host governments. Today, unfortunately, many Jews consciously choose to have one of these "alternative," non-Jewish ceremonies. Whether it is a civil, church, or cult ceremony, or no ceremony at all, it contravenes "the law of Moses and of Israel."

The following discussion is a simplification of a very complicated problem, and should not serve in place of rabbinic decisions in specific cases. Rather, it is intended as a guide to ways in which you may frame questions when consulting an authority.

Civil Marriage

The first public Jewish confrontation with civil marriages occurred in Holland at the end of the sixteenth century; the second took place after the French Revolution, at the end of the eighteenth century. Most of the Responsa literature on this subject was produced in reaction to the large numbers of civil marriages performed during the last remnants of Jewish self-government in Germany in 1875, and in Austro-Hungary, (including Galicia) in 1891. Civil marriages were required by the governments of these countries. While most Jews went through this as an addition to the Jewish ceremony, others ignored the religious ceremony altogether.

It is clear that a civil marriage is not in accord with Jewish law. The basic questions are these: If a man and woman were wed in a civil ceremony, and if their intention was for marriage, not licentiousness, and if they are known to the Jewish public as husband and wife, are they considered to be married in accordance with Jewish law? If they wish to terminate the marriage, will a Jewish divorce be required? If they realize their error, should they undergo a Jewish marriage ceremony? The Halakhah is concerned with three problems when judging cases of civil marriage:

1. Kavanah: Intention to get married. Was the marriage based on the intention of the man and woman to live together formally as husband and wife, or were they married for other reasons? The halakhic question is this: Must the required intention be focused specifically on effecting Jewish marriage or is a general intent to live a married life sufficient to give the marriage Jewish validity?

2. Chazakah: The presumption made by the Halakhah is that people are "not wont to cohabit licentiously" when they can do so in accordance with Jewish law. Is this true for all people, regardless of their observance of the law? This presumption is usually invoked for a person only after marriage. For example, when a man is alone with his former wife, whom he has just divorced, it is presumed that they have remarried because he would not needlessly cohabit licentiously. Can this presumption also be applied to civil marriage?

3. Bi’ah: Cohabitation: Are witnesses required for the couple’s specific statement of intent to marry by the mode of intercourse before they retire to privacy, or is it sufficient for it to be known in the community that they are living together as man and wife? Is it possible that, although there was no proper intent and no presumption, they might in any case, by cohabiting, have fulfilled the basic requirements of the law?

The halakhic response comes from many sources, and occupies a number of books, but the authorities agree that civil marriage is a violation of the law. It is not a Jewish marriage. The couple’s participation in civil marriage is taken as a statement that they do not believe in "the laws of Moses and Israel." It is assumed that their concept of "licentiousness" is not that of the Halakhah. (N.B. It is possible that, if the marriage was originally contracted in a country that did not tolerate Jewish marriage, the intention was proper. This factor must be adjudged separately. The rabbi must decide whether or not the issuance of a get mi-chumra (a rabbinically-ordained divorce), is necessary, because the community might have assumed they were married Jewishly and that their separation without a divorce implies that religious divorce is no longer required. When a mate refuses a divorce, a rabbi should be consulted as to whether the get mi-chumra may be set aside).

If the marriage is to be continued, the couple should be encouraged to be married with a Jewish ceremony. A civil divorce, which the government requires, is of no value whatsoever to the Halakhah and will not be acceptable to the law and to the traditional community as a Jewish divorce.

Church or Cult Marriage

The history of such marriage goes back at least to the Spanish Inquisition at the end of the fifteenth century. Today we very rarely find two Jewish people being married in church, but all too many young Jews have been converted to cults of all varieties. As a Jew cannot be considered by the law to be a non-Jew under any circumstances, only to be a sinning Jew, the problem of cult marriage is a difficult one.

The Halakhah takes note of two differences between cult marriage and civil marriage. First, in civil marriage the "laws of Moses and Israel" are ignored; in cult marriages, they are openly rejected. Second, church or cult marriage is a contradiction of Jewish marriage, but civil marriage is not.

The clear intent of the couple married in a church or cult ceremony is to defy Jewish marriage law. The Halakhah, therefore, does not consider it a marriage at all. In order to be considered married as Jews, such a couple must be married according to halakhic standards. A corollary of this law is that two Jewish apostates married according to Jewish law have a legal marriage, since they are full, if less than good, Jews; but two identified Jews married in an alien religious faith are not considered married.

Living Together Arrangement

Many couples decide to live together without benefit of marriage. This is akin to common law unions, called yadua be’tzibbur, the history of which goes back to the institution of concubinage. In the fifteenth century Rabbi Israel Isserlein, author of Te’rumat ha-Deshen, responded to the question of those who lived together but wished to separate. He dealt simultaneously with this question and with another regarding a church marriage, indicating that he believed there was no legal difference between them.

The Halakhah shows no concern in this situation for the possibility that the couple contracted marriage by bi’ah. In addition, since there is no legitimate intent to be married, there is no halakhic presumption that this concept is operative. This enables those who are living together not to require a religious divorce if they decide to separate. (In individual cases, this must be checked with authoritative scholars). Chief Rabbi Herzog considered such a situation to be a non-marriage.

Couples who wish to write their own personalized, often moving, additions to the marriage ceremony must first consult with religious authority. The new words may be permitted according to Jewish law, but they must be written so as to conform with the traditional marriage process of "Moses and Israel." The fundamental components of the marriage service as outlined below must be followed, and a rabbi should be consulted well before the ceremony.