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NY doesn't recognize common-law marriages, but are there any cases
where a judge can order that a religious or cultural marriage be
licensed and recognized? This example is based on something that
happened to a distant cousin.
A few weeks before the scheduled wedding, the boy's father tells his
son that he doesn't need to get a marriage license (this is New York)
because marriage is really a religious ceremony, so as long as they're
married in the eyes of God, the marriage is kosher (all involved are
Orthodox Jews). The reason he doesn't want the marriage recognized by
the civil authorities is that he, his brother, and their sons all make
their living from a family business, of which they're all owners, and
because he's afraid this marriage might not last, he doesn't want a
situation where his daughter-in-law has a claim. (As I understand the
law, I guess she would have a claim on her husband's share of any
increase in the value of the business, as that would be an asset
acquired during the marriage.)
Now, I believe by performing an unlicensed marriage, the Rabbi has
committed a crime in NY, but what does exist is a signed marriage
contract, written in Hebrew, called a ketubah, along with witnesses
who will testify they saw a marriage ceremony performed according to
Jewish law. Anyway, suppose the marriage goes south. Is there any
legal principle where the bride can bring the ketubah to court to show
that there was a marriage contract between the two, and thus to
provide a legal remedy, can a judge rule that a legal marriage existed
as of the date on the contract and order it be licensed and registered?
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On Mar 15, 7:00 am, Stan <stanle...@hotmail.com> wrote:
NY doesn't recognize common-law marriages, but are there any cases
where a judge can order that a religious or cultural marriage be
licensed and recognized?
Is there any
legal principle where the bride can bring the ketubah to court to show
that there was a marriage contract between the two, and thus to
provide a legal remedy, can a judge rule that a legal marriage existed
as of the date on the contract and order it be licensed and registered?
I'm not a lawyer of any kind, let alone a matrimonial lawyer,
but a long time ago, when I was getting married, my bride-to-be
and I looked into the NY State statutes. (Don't ask why....)
There are some phrases in the law which (to my inexpert eye)
could be interpreted as meaning, roughly, if it looked to all present
as though you got married, you _are_ married in the eyes
of the law.
It wouldn't surprise me if a NY Family Court would
consider the couple married for the purposes of divorce, especially
if it looked like the husband and his family had been treating
her as married to him and were now trying to use a technicality
to avoid their equitable responsibility to the soon-to-be-ex
wife.
But, again, I'm not a lawyer and know nothing of the case law.
BTW, marriate by contract (ketubah) is explicitly recognized
as a form of legal solomnization in the statute.
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In article <u6ent3dnakpge2gdq9j3stsmi28oos48r7@4ax.com>,
Stan <stanleykr@hotmail.com> wrote:
NY doesn't recognize common-law marriages, but are there any cases
where a judge can order that a religious or cultural marriage be
licensed and recognized? This example is based on something that
happened to a distant cousin.
[[.. sneck details ..]]
Now, I believe by performing an unlicensed marriage, the Rabbi has
committed a crime in NY,
yuppers -- penalties for that in NY include up to a year in jail.
`
but what does exist is a signed marriage
contract, written in Hebrew, called a ketubah, along with witnesses
who will testify they saw a marriage ceremony performed according to
Jewish law. Anyway, suppose the marriage goes south. Is there any
legal principle where the bride can bring the ketubah to court to show
that there was a marriage contract between the two, and thus to
provide a legal remedy, can a judge rule that a legal marriage existed
as of the date on the contract and order it be licensed and registered?
First reaction: "Can of worms" applies. A large industrial-sized one.
First there is an arguable 'intent to defraud' behind the attempt to
keep the marriage 'off the books', which would lend credence to an
assertation that a critical element of forming a contract -- the 'meeting
of the minds' -- is absent.
A counter to this could be a claim of 'detrimental reliance'.
HOWEVER, with a little digging, it looks like the matter is, in act, mood.
Section 25 of Article 11 of the New York State Domestic Relations Law
says, in part:
"... Nothing in this article contained shall be construed to render
void by reason of a failure to procure a marriage license any marriage
solemnized between persons of full age nor to render void any marriage
between minors or with a minor under the legal age of consent where the
consent of parent or guardian has been given and such marriage shall be
for such cause voidable only as to minors or a minor upon complaint of
such minors or minor or of the parent or guardian thereof."
It would seem that the attempt to 'protect' the family family business by
keeping the marriage 'off the books' is an utter failure. That your cousin
would not even need to request a court ordered 'licensing and registration'
of the marriage.
One _would_ need to be able to show that the 'solemnization' of the marriage
was in accord with the requirements of Section 11 of Article 3. Which could
be _either_ that the officiant was a clergyman or minister (not just a person
'acting' the role) _or_ that there was a written contract signed by both
parties along with 2 witnesses,
".... all of whom shall subscribe the same within
this state, stating the place of residence of each of the parties
and witnesses and the date and place of marriage, and acknowledged
before a judge of a court of record of this state by the parties and
witnesses in the manner required for the acknowledgment of a
conveyance of real estate to entitle the same to be recorded."
Its not clear to me whether this require an appearance by all parties
before the judge, or whether the written word is sufficient. To be on
the safe side, _I_ would nail down the officiant's credentials.
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Stan <stanleykr@hotmail.com> wrote in
news:u6ent3dnakpge2gdq9j3stsmi28oos48r7@4ax.com:
NY doesn't recognize common-law marriages,
NY will recognize common-law marriages from other states.
but are there any cases
where a judge can order that a religious or cultural marriage be
licensed and recognized?
Sounds a bit medieval, even for New York.
This example is based on something that happened to a distant cousin.
A few weeks before the scheduled wedding, the boy's father tells his
son that he doesn't need to get a marriage license (this is New York)
because marriage is really a religious ceremony, so as long as they're
married in the eyes of God, the marriage is kosher (all involved are
Orthodox Jews). The reason he doesn't want the marriage recognized by
the civil authorities is that he, his brother, and their sons all make
their living from a family business, of which they're all owners, and
because he's afraid this marriage might not last, he doesn't want a
situation where his daughter-in-law has a claim. (As I understand the
law, I guess she would have a claim on her husband's share of any
increase in the value of the business, as that would be an asset
acquired during the marriage.)
Now, I believe by performing an unlicensed marriage, the Rabbi has
committed a crime in NY,
NY law makes it a crime for the rabbi to "solemnize" a marriage without
having the parties' license. But what does that mean? I suspect it
means intoning the words "Under the powers granted me by the State of New
York, I now pronounce you man and wife." or the equivalent, representing
the marriage as a valid civil union. You can be sure that such words are
not required for the couple to be married under Jewish law (halakah). In
fact, no rabbi is required. It is enough for the couple to make the
appropriate declarations in each other's presence.
but what does exist is a signed marriage
contract, written in Hebrew, called a ketubah, along with witnesses
who will testify they saw a marriage ceremony performed according to
Jewish law. Anyway, suppose the marriage goes south. Is there any
legal principle where the bride can bring the ketubah to court to show
that there was a marriage contract between the two, and thus to
provide a legal remedy, can a judge rule that a legal marriage existed
as of the date on the contract and order it be licensed and registered?
The bride can bring the ketubah to a religious court (bet din) and have
that court adjudicate a religious divorce (get). Depending on how it was
written, the ketubah could be a valid contract as well.
*** I am not a lawyer, so this can't be legal advice. ***
*** And, nu, I am not a chachum, either. ***
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On Mar 15, 8:00=A0am, Stan <stanle...@hotmail.com> wrote:
A few weeks before the scheduled wedding, the boy's father tells his
son that he doesn't need to get a marriage license (this is New York)
because marriage is really a religious ceremony, so as long as they're
married in the eyes of God, the marriage is kosher (all involved are
Orthodox Jews).
This is largely correct, as a matter of halacha. Judaism recognizes
what is essentially a common-law marriage.
Now, I believe by performing an unlicensed marriage, the Rabbi has
committed a crime in NY,
I've seen such statutes. They are probably the flip side that
ordained clergy may solemnize civil unions, the state insists that
they not solemnize any marriage other than a civil union according to
the laws of that state. As a criminal law it would most likely fail
on Constitutional grounds, but such clergy could be barred from
performing further civil unions (that is, marriages that the state
will recognize for the state's purpose.)
but what does exist is a signed marriage
contract, written in Hebrew, called a ketubah, along with witnesses
who will testify they saw a marriage ceremony performed according to
Jewish law. =A0Anyway, suppose the marriage goes south. =A0Is there any
legal principle where the bride can bring the ketubah to court to show
that there was a marriage contract between the two, and thus to
provide a legal remedy, can a judge rule that a legal marriage existed
as of the date on the contract and order it be licensed and registered?
Uninformed opinion: The state would be unlikely to open this back
door to common-law civil unions. For a contract to be a marriage
contract, meaning the couple are recognized as married for state
purposes, it has to be licensed, and so forth.
On the other hand, I see no reason to think the ketubah isn't a valid
contract at contract law. He owes her 200 silver zuzim, and if it had
a Lieberman Clause they've agreed to binding arbitration at a Beit
Din.
--
- David Chesler <chesler@post.harvard.edu>
Free Cory Maye
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On 15 Mar 2008, Stan <stanleykr@hotmail.com> wrote:
NY doesn't recognize common-law marriages,
but are there any cases where a judge can order
that a religious or cultural marriage be licensed
and recognized?
You might want to answer for yourself (or clarify/reformulate/repost
your query in a manner that explains) why you pose this question in
this form -- in particular, address whether there might be (do you
presume there is not?) relief (in/from a N.Y. civil judicial tribunal)
to which the (putative) wife to whom you refer may be entitled _other_
_than_ a N.Y. state court judge "order[ing the Orthodox Jewish
'marriage' you posit] be licensed and recognized [as a 'marriage']" in
that state.
You might correlatively want also to clarify why you pose this query
apparently as a matter of (N.Y. state) civil law despite your
statement at "all involved" parties would claim (and genuinely
believe?) themselves to be "Orthodox Jews" who, as such, presumably
would deem themselves bound by Halachic (Jewish) law and why you seem
to presume at least impliedly in effect that a state civil and not
rabbinic court would be required to provide relief for the woman in
question.
This example is based on something that happened
to a distant cousin. [In N.Y., an Orthodox
Jewish man and Orthodox Jewish woman] signed
a marriage contract, written in Hebrew, called a
ketubah . . . [and in the presence of] witnesses . . .
participated in] a marriage ceremony performed
according to Jewish law. [However] before the
scheduled wedding, the boy's father tells his son
that he doesn't need to get a marriage license . . .
marriage is really a religious ceremony, so as long
as they're married in the eyes of God, the marriage
is kosher . . . .
. . . except you don't mean "kosher" and, instead, "recognized" and
"valid" as a matter of Jewish law. Oddly, too, you don't report what
the "boy" and his observant father would claim to believe God has to
say about a "marr[iage in the eyes of [their] God" which, however,
neither this "boy" nor his father appear to intend to honor and abide
by.
The reason he doesn't want the marriage recognized
by the civil authorities is that he, his brother, and their
sons all make their living from a family business, of
which they're all owners, and because he's afraid this
marriage might not last, he doesn't want a situation
where his daughter-in-law has a claim. [I am guessing]
she would have a claim on her husband' share of any
increase in the value of the business, as that would be
an asset acquired during the marriage . . . .
In implying as you apparently do that you guess what you do about N.Y.
civil law to do with N.Y. civil law, you raise but neglect to answer
at least this question:
It would be fair, would it not (and if you would claim not, why not),
to suggest that it literally oxymoronic to say that "all involved are
Orthodox Jews" and also to imply, as you apparently do, that the "boy"
and his father to whom you refer are observant in such religious
practice and belief and yet simultaneous suggest that this "boy" and
his father and (observant Orthodox Jewish?) uncles are not aware that,
as a matter of _Jewish_ _law_, redressable in a Beth Din (a
rabbinic court), the wife would not "have a claim" financially against
her husband if she and he divorce?
[S]uppose the marriage goes south. Is there any
legal principle where the bride can bring the ketubah
to court to show that there was a marriage contract
between the two, and thus to provide a legal remedy,
can a judge . . .
. . . of N.Y state court . . . ? a "judge" using that term in the
sense of a Beth Din? . . .
. . . rule that a legal marriage existed as of the date on the
contract and order it be licensed and registered?
It is you who introduces and refers (correctly as a matter of Jewish
law) to a "ketubah" as a "contract" and, if this is so, does not
explain your understanding what the word (_your_ word) "contract"
might mean in this context.
This is not to suggest without knowing more that a woman in the
position you summarize ought just willy-nilly institute Beth Din
procedures -- indeed, you do not actually say that (as a matter of
Jewish observance) they have/haven're resided together as husband and
wife or whether (assuming that they are "married" for Jewish law
purposes) she wants a divorce (and, if so, also some financial
recompense/remuneration by or on behalf of her husband or the
husband's relatives with whom he conducts business who may have
wronger her; etc., etc.)
(One of the perhaps more perversely amusing by-ways of N.Y. law is
occasioned by Orthodox Jews who had agreed to be bound by the
procedures and rulings of a rabbinic court resorting to state court
if/when they believe it to be in their commercial example to do so.)
Nor, of course, do you explain how/why this woman (a "girl"?)
participated in a ceremony by which she expected to be (legally)
married as a matter of N.Y. (civil) law but without her having
obtained a state or municipal license for that purpose and, if she
chose not to obtain a license, why.
Now, I believe by performing an unlicensed marriage,
the Rabbi has committed a crime in NY
One can't evaluate the probable correctness of this belief without
knowing more about the Rabbi's degree or not of knowledge; etc., etc.
Although (at least on the facts as you so far posit them) so noting
may be in the nature of an aside, you might want to note that N.Y. not
very long ago enacted (and the courts sustained as against an
attempted constitutional attack) a special statute addressed to the
converse and obverse of some of the facts as you appear to state them
(i.e., addressed to the problem usually of an Orthodox Jewish husband
suing his Orthodox Jewish wife for divorce but not granting her a
Jewish divorce or otherwise freeing her from the religous restraints
against her remarrying).
But lest this reponse be accused of "hiding the ball" re. the N.Y.
civil law aspects of your query: There have been cases of women in a
position comparable to what you appear to describe who have been
granted if not the specific relief about which you ask at least a
financial functional equivalent.
As noted, however, it is impossible to tell from your version of the
"example" you pose whether the woman in question probably
would/wouldn't be entitled to any civil judicial relief because you
have not yet said what _she_ would claim her basis for any relief (as
a matter of civil N.Y. law) ought be bearing in mind that among your
factual omissions is the lack of an answer to the question above about
her decisions and choices in (putatively) marrying in N.Y. but without
a N.Y. state marriage license. Thus, among the (potentially:
numerous) questions you raise but do not and also prevent others from
answering is whether (as a matter of civil state law) she should/would
be estopped (precluded) from being granted some version of the relief
you vaguely suggest she may have in mind.
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On Sat, 15 Mar 2008 08:00:22 -0400, Stan <stanleykr@hotmail.com>
wrote:
NY doesn't recognize common-law marriages, but are there any cases
where a judge can order that a religious or cultural marriage be
licensed and recognized? This example is based on something that
happened to a distant cousin.
A few weeks before the scheduled wedding, the boy's father tells his
son that he doesn't need to get a marriage license (this is New York)
because marriage is really a religious ceremony, so as long as they're
married in the eyes of God, the marriage is kosher (all involved are
Orthodox Jews). . . .
A quick look at the statute indicates that it is a misdemeanor in New
York to solemnize a marriage without a proper license. For this
reason, the rabbi might insist on the license or might choose to omit
the reference to the power of the State of New York in the ceremony,
thereby signalling that the marriage is not civilly enforceable. That
said, New York case law may have provisions for non-marital domestic
agreements, oral or written, that may be enforceable; both states
where I proactice, Oreogn and Washington, do, but the details differ
between the states. Someone with more knowledge of New York law
probably should be consulted.
About a year and a half ago, I attended a wedding in New Mexico in
which the parties expressly declined to obain a license for religious
reasons. This would be significant in New Mexico as a community
property state.
Daniel Reitman
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Stan <stanleykr@hotmail.com> wrote:
NY doesn't recognize common-law marriages, but are there any cases
where a judge can order that a religious or cultural marriage be
licensed and recognized?
I don't practice in NY, but I'd think probably not.
A few weeks before the scheduled wedding, the boy's father tells
his son that he doesn't need to get a marriage license (this is
New York) because marriage is really a religious ceremony, so as
long as they're married in the eyes of God, the marriage is kosher
(all involved are Orthodox Jews). The reason he doesn't want the
marriage recognized by the civil authorities is that he, his
brother, and their sons all make their living from a family
business, of which they're all owners, and because he's afraid
this marriage might not last, he doesn't want a situation where
his daughter-in-law has a claim.
To avoid that they should have a pre-marital agreement. Doing it
this way is not likely to be illegal, but it is certainly dangerous.
Some states have the concept of a "putative spouse," where people are
given the rights of spouses in some cases even if they are not
actually married. A brief look into NY law indicates that their
courts have allowed such rights in some cases.
In your cousin's case the parties have entered into a contract
similar to marriage, and the terms of that contract may well be
enforced by the New York courts, even if they are not legally
married.
A pre-marital agreement would be so much more effective and, in the
long run, cheaper.
Stu
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On Sun, 16 Mar 2008 07:40:31 -0400, David Chesler
<chesler@post.harvard.edu> wrote:
. . . .
On the other hand, I see no reason to think the ketubah isn't a valid
contract at contract law. He owes her 200 silver zuzim, and if it had
a Lieberman Clause they've agreed to binding arbitration at a Beit
Din.
There is an ALR annotation on tthe subject of specific performance of
the get (religious dvorce) clause in ketubahs. The courts are split,
depending on whether they focus on the contrractual nature of the
agreement or consider enforcement an establishment of religion.
Daniel Reitman
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Daniel R. Reitman wrote:
On Sun, 16 Mar 2008 07:40:31 -0400, David Chesler
<chesler@post.harvard.edu> wrote:
There is an ALR annotation on tthe subject of specific performance of
the get (religious dvorce) clause in ketubahs. The courts are split,
depending on whether they focus on the contrractual nature of the
agreement or consider enforcement an establishment of religion.
Even being an atheist, I can't see how enforcing a religious ceremony as
being a legal/civil one would be an establishment of religion. You're
not trying to force one person's beliefs on another here; you're simply
trying to make the one person live up to their own professed beliefs
(i.e. "practice what you preach" instead of "practice what that other
person preaches.")
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On Wed, 19 Mar 2008 06:58:16 -0400, Mike <prabbit1@shamrocksgf.com>
wrote:
Daniel R. Reitman wrote:
Even being an atheist, I can't see how enforcing a religious ceremony as
being a legal/civil one would be an establishment of religion. You're
not trying to force one person's beliefs on another here; you're simply
trying to make the one person live up to their own professed beliefs
(i.e. "practice what you preach" instead of "practice what that other
person preaches.")
About half the courts to which this issue has been presented have
decided it is.
Daniel Reitman
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On Mar 19, 6:58=A0am, Mike <prabb...@shamrocksgf.com> wrote:
Daniel R. Reitman wrote:
Even being an atheist, I can't see how enforcing a religious ceremony as
being a legal/civil one would be an establishment of religion. You're
not trying to force one person's beliefs on another here; you're simply
trying to make the one person live up to their own professed beliefs
(i.e. "practice what you preach" instead of "practice what that other
person preaches.")- Hide quoted text -
Indeed. It seems to be saying that if I make a contract with you
that you are to sell me for a certain price a pound of beef, and I
note that it is essential that the beef be meat from a cow and not
pork from a pig, the contract is enforcible (whatever that means, like
you have to give me my money back if you send me a pound of pork) but
if we make the same contract and I note that it is essential that the
beef be meat from a cow because I consider myself bound by the rules
of kashruth, some courts wouldn't enforce the contract because that's
establishing a religion.
I understand that a court might not want to be in the position of
defining "kosher" in the abstract, although some jurisdictions do,
such as by reference to particular codifications of Jewish law.
Particular organizations that certify foods as kosher have their own
trademarked symbols (hekshers, such as O-U or Kaf-K): not enforcing
the terms of a ketubah seems to be akin to not enforcing the US
trademark of a heksher, when they ought to take no notice of the
significance or purpose of the mark when used by the true holder.
ObLegal: I'd like to see the reasoning of the courts that have held
the terms of a ketubah unenforceable because it's religious.
--
- David Chesler <chesler@post.harvard.edu>
Free Cory Maye
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On Mar 19, 6:58=A0am, Mike <prabb...@shamrocksgf.com> wrote:
Daniel R. Reitman wrote:
There is an ALR annotation on tthe subject of specific performance of
the get (religious divorce) clause in ketubahs. =A0The courts are split,=
depending on whether they focus on the contrractual nature of the
agreement or consider enforcement an establishment of religion.
Even being an atheist, I can't see how enforcing a religious ceremony as
being a legal/civil one would be an establishment of religion. You're
not trying to force one person's beliefs on another here; you're simply
trying to make the one person live up to their own professed beliefs
(i.e. "practice what you preach" instead of "practice what that other
person preaches.")
The easiest way for the side that's going to lose to remove a civil
court from the picture is to bring in witnesses to show that the
contract is not clear cut and that there are different Rabbinical
(i.e., religious) interpretations as to what the contract requires.
At that point, a state or federal court cannot decide which religious
interpretation is correct.
As an example, years ago New Jersey tried to ensure that meat that was
marketed as kosher was in fact kosher, and working with the
appropriate Rabbis, developed a set of regulations. When a kosher
butcher was charged with selling unkosher meat based on a technical
violation of these NJ regulations, and when the state board refused to
let his mashgiach (a Rabbi who certifies kosher foods) testify, a
lawsuit was brought in state court. The butcher made no attempt to
defend the kashruth of his meat, but rather claimed that there were
differences of opinion among Rabbis on certain details, and by
deciding which "interpretation" would be part of the civil code, the
state was legislating religion. He won the case, but went out of
business anyway because he was no longer trusted in the marketplace.
So now the NJ law is simply that the merchant's basis for claiming
kashruth must be displayed (e.g., he could have a sign saying that his
meat is certified kosher by Rabbi Shalom Aleichem, but there's no
state agency to validate Rabbi Aleichem's credentials; if other
religious authorities have problems with his certifications, they'll
just have to spread the word themselves).
Anyway, this is how enforcement of a contract written as a religious
document can be removed from the court system.
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On Mar 19, 6:58 am, Mike <prabb...@shamrocksgf.com> wrote:
Daniel R. Reitman wrote:
....
There is an ALR annotation on tthe subject of specific performance of
the get (religious dvorce) clause in ketubahs. The courts are split,
depending on whether they focus on the contrractual nature of the
agreement or consider enforcement an establishment of religion.
Even being an atheist, I can't see how enforcing a religious ceremony as
being a legal/civil one would be an establishment of religion. You're
not trying to force one person's beliefs on another here; you're simply
trying to make the one person live up to their own professed beliefs
(i.e. "practice what you preach" instead of "practice what that other
person preaches.")
I haven't seen anyone reply who seems to have much knowledge
of NYS matrimonial law. Although not a lawyer, I live in NYS
and once did some reading on this issue.
I believe the original question did not involve enforcing
specific clauses of the ketubah. The question was
whether the courts would recognize a marriage in this
case, i.e., in the presence of a ketubah but the absence
of a marriage license.
1. Signing the ketubah is what NYS calls "solemnization"
of the marriage. In NYS, it is the "solemnization" (the
wedding ceremony) which makes you married, not
the license.
A license with no solemnization will _not_ make you
married. However, my readings did not indicate
whether solemnization without a license _will_
make you married.
The NYS statute has several pages describing legal ways
to solemnize a marriage, and marriage by contract is
one of them. Thus, the courts don't need to recognize
or interpret Jewish law to recognize the marriage.
2. Thus, the only real question is whether the absence of
a license would be enough for NYS courts to not recognize
the marriage.
In my readings, there was a constant thread that courts
considered
it "contrary to public policy" to have marriages not recognized
because of a technicality.
Because of this, we came to the conclusion that it was
probably not possible to have a religious wedding and then
have the courts not recognize it as a marriage under the law.
3. The only time the question would come up is if the
couple decided to divorce and the wife wanted to insist
on taking it to the courts while the husband argued that
they were "never really married." In this case, in my non-
lawyerly
opinion, the courts are very likely to consider the couple
to be legally married, given that the marriage was, in fact,
solemnized, especially if they acted married for some length
of time after the solemnization.
4. Doing any of this stuff without consulting with a NYS matrimonial
attorney is a VERY, VERY BAD IDEA.
The OP's cousin and his family are examples of having "a fool for
a client."
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On Mar 15, 7:00=A0am, Stan <stanle...@hotmail.com> wrote:
[Op inquires about shielding assets from potentially future ex-spouse]
Other than for pure hypothetical discussion, why is the groom to be
(or his Father) even considering this? There are numerous other ways
to accomplish his goals that don't have such a large "legal
questionmark" hanging over them. Trusts and pre-nups are designed
specifically for this purpose. It seems like "he's going around his
elbow to get to his a**hole" on this one.
Just my $0.02 (taxed and non-inflation adjusted, of course).
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In article <e8i4u355a8pldp2m09nmhplqf31ff7k19e@4ax.com>,
Alan McKenney <alan_mckenney1@yahoo.com> wrote:
I haven't seen anyone reply who seems to have much knowledge
of NYS matrimonial law. Although not a lawyer, I live in NYS
and once did some reading on this issue.
I believe the original question did not involve enforcing
specific clauses of the ketubah. The question was
whether the courts would recognize a marriage in this
case, i.e., in the presence of a ketubah but the absence
of a marriage license.
1. Signing the ketubah is what NYS calls "solemnization"
of the marriage. In NYS, it is the "solemnization" (the
wedding ceremony) which makes you married, not
the license.
A license with no solemnization will _not_ make you
married. However, my readings did not indicate
whether solemnization without a license _will_
make you married.
You didn't look very far. New York Domestic Relations Law, article 11,
section 25 *expressly* states that failure to get a license does *NOT*
void, or invalidate, a solemnized marriage.
see my prior post in this thread.
I quoted the actual statute section.
I'm not a lawyer, nor an expert on NY matrimonial law -- but _that_ section
is _very_ explicit on the particular point.
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David Chesler <chesler@post.harvard.edu> wrote:
ObLegal: I'd like to see the reasoning of the courts that have
held the terms of a ketubah unenforceable because it's religious.
It could have something to do with the fact that people can't simply
enter into a normal contract to be married, either, religious or not.
They can (at least in California) enter into a contract that will
provide many (but not all) of the benefits/burdens of marriage. But
that's about as far as it goes.
Stu
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Alan McKenney <alan_mckenney1@yahoo.com> wrote in
news:e8i4u355a8pldp2m09nmhplqf31ff7k19e@4ax.com:
On Mar 19, 6:58 am, Mike <prabb...@shamrocksgf.com> wrote:
...
There is an ALR annotation on tthe subject of specific performance
of the get (religious dvorce) clause in ketubahs. The courts are
split, depending on whether they focus on the contrractual nature
of the agreement or consider enforcement an establishment of
religion.
I haven't seen anyone reply who seems to have much knowledge
of NYS matrimonial law.
This is a topic with some religious content, and I've heard that
confession is good for the soul. So I'd like to declare that I have
become one of those people I complain about by falling into the above-
mentioned category.
<snip>
The question was
whether the courts would recognize a marriage in this
case, i.e., in the presence of a ketubah but the absence
of a marriage license.
1. Signing the ketubah is what NYS calls "solemnization"
of the marriage. In NYS, it is the "solemnization" (the
wedding ceremony) which makes you married, not
the license.
I had posted that I'd guessed that the solemnity lay with the clergy in
pronouncing a couple married under the powers granted him or her by the
state.
This is not so. Mea culpa. At least I didn't say it was the license.
Under Article 3, Section 12 of the NY Domestic Relations Law, it is the
couple who are solemn. That is, the couple must seriously declare that
they are about to take a 50-50 chance of ruining both their lives by
throwing in together. They must do so in front of a clergyman or the
proper civil official and one other witness. No particular ceremony is
mandated.
Now the rabbi (in the case mentioned) isn't supposed to preside over such
a declaration without seeing a marriage license, but if he does so,
that's his problem, and it won't affect the validity of the marriage.
*** I am not a lawyer, so this can't be legal advice. ***
(Although, why you'd believe me now on this topic escapes me)
<snip>
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On Mar 21, 8:04=A0am, Stuart Bronstein <spamt...@lexregia.com> wrote:
David Chesler <ches...@post.harvard.edu> wrote:
It could have something to do with the fact that people can't simply
enter into a normal contract to be married, either, religious or not.
That's completely orthogonal to the question I asked. (The terms of
the traditional ketubah is more along the lines of a pre-nuptial
agreement than a contract of, or to be, married, but its existence is
good evidence that the couple are married, just as would be a wedding
video.)
Deadrat wrote:
] Under Article 3, Section 12 of the NY Domestic Relations Law, it is
the
] couple who are solemn. That is, the couple must seriously declare
that
] they are about to take a 50-50 chance of ruining both their lives
by
] throwing in together. They must do so in front of a clergyman or
the
] proper civil official and one other witness. No particular ceremony
is
] mandated.
]] Now the rabbi (in the case mentioned) isn't supposed to preside over
such
] a declaration without seeing a marriage license, but if he does so,
] that's his problem, and it won't affect the validity of the
marriage.
Section 12 says:
} No particular form or ceremony is
} required when a marriage is solemnized as herein provided by a
clergyman
} or magistrate, but the parties must solemnly declare in the
presence of
} a clergyman or magistrate and the attending witness or
witnesses that
} they take each other as husband and wife. In every case, at
least one
} witness beside the clergyman or magistrate must be
present at the
} ceremony.
} The preceding provisions of this chapter, so far as they
relate to the
} manner of solemnizing marriages, shall not affect marriages
among the
} people called friends or quakers; nor marriages among the
people of any
} other denominations having as such any particular mode of
solemnizing
} marriages; but such marriages must be solemnized in
the manner
} heretofore used and practiced in their respective
societies or
} denominations, and marriages so solemnized shall be as valid
as if this
} article had not been enacted.
=A0
Jews are people of a denomination which recognizes solemnization by
what is essentially common-law marriage. (And now it IS a question
before the courts if their interpretation of what my religion means is
the same as what I just said it is, which does raise that
establishment question, which I guess paragraph 2 was written to avoid
in paragraph 1.)
Back to Stu:
They can (at least in California) enter into a contract that will
provide many (but not all) of the benefits/burdens of marriage. =A0But
that's about as far as it goes.
I suppose it comes down to which of the benefits and burdens the
courts will allow/enforce, like the division of property that OP's
cousins were concerned about, or tax filing status, or next-of-kin for
medica stuff. I agree with OP's cousins that "marriage" is a question
before G-d, especially when adultery is only a sin and not criminally
punishable; what matters in this forum is what the courts will
enforce.
--
- David Chesler <chesler@post.harvard.edu>
Free Cory Maye
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Daniel R. Reitman wrote:
On Wed, 19 Mar 2008 06:58:16 -0400, Mike <prabbit1@shamrocksgf.com>
wrote:
About half the courts to which this issue has been presented have
decided it is.
And, by extrapolation, about half of them have not thusly decided it.
But I wasn't arguing with if the courts had decided one way or the
other. I was simply voicing my personal opinion on the matter.
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A ketubah is a marriage contract all right, but it wouldn't be
"acknowledged before a judge of a court of record of this state by the
parties and witnesses in the manner required for the acknowledgment of
a conveyance of real estate to entitle the same to be recorded." as
Robert points out it should be / must be. Nobody files even a copy of
the ketubah with the secular government.
On Sat, 22 Mar 2008 07:44:28 -0400, David Chesler
<chesler@post.harvard.edu> wrote:
Jews are people of a denomination which recognizes solemnization by
what is essentially common-law marriage.
You've said this twice, and I don't see it**, so I have to ask you
what you mean.
**Unless you mean that it's common-law in relation to the law of the
US or any nation other than Israel (where each religion runs its own
marriages)
I see common law marriage as a marriage created by living together as
husband and wife.
Judaism provides 3 ways to become engaged, and 3 ways to become
married.
Traditinally, the best and far far most common way to get married is
to combine all 3 methods.
A) The groom giving the bride something of value and her accepting it.
Usually this is a wedding ring. If the bride were to give the groom a
ring in return, it would be an exchange of presents, and wouldn't be a
means of getting married, but sometimes after it is made clear that
the couple IS by now already married, the bride gives the groom a
ring.
B) The groom says to the bride, in Hebrew, "Behold, you are sanctified
to me according to the law of Moses and Israel". "Sanctified" or
"hallowed" is m'kudeshet, which some amateurish webpages translate
incorrectly as betrothed. Betrothed means engaged, not married, and
"sanctified" here refers to marriage.
C) The couple has sexual intercourse together with the intention of
becoming married. This is now symbolized at the wedding, after the
two parts above, when they go into a room just the two of them. But
I'm sure no one has sex at that time. In fact, since they have both
been fasting all day, what they do is eat and drink, and then join the
party. That night, otoh, they try to have in mind, at least a for a
little bit, that they are having sex with the intention of becoming
married (even though they are married alreay, just in case something
was wrong with the other two thirds).
I haven't been able to verify this with anyone, but I can imagine at
one time in small towns, the first two parts (the chuppah) would be
done and then the couple would go to their new home for a few hours
and come back when the party started.
Any one of these methods alone is enough to get married, but doing it
by means of sexual intercourse only is considered, in my words, not
classy. Although IMO maybe it is good for two Jews on a desert
island.
Those are the essential parts, and in addition, there is fasting,
reciting psalms, drinking wine, breaking the glass. What makes this
similar to a commmon-law marriage?
(I am not a rabbi. Don't rely on this to get married, because there
are probably some mistakes and definitely some omissions.)
If you are inclined to email me
for some reason, remove NOPSAM :-)
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On Mar 23, 7:24=A0am, mm <NOPSAMmm2...@bigfoot.com> wrote:
On Sat, 22 Mar 2008 07:44:28 -0400, David Chesler
You've said this twice, and I don't see it**, so I have to ask you
what you mean.
**Unless you mean that it's common-law in relation to the law of the
US or any nation other than Israel (where each religion runs its own
marriages)
I see common law marriage as a marriage created by living together as
husband and wife.
=2E..
C) The couple has sexual intercourse together with the intention of
becoming married. =A0 This is now symbolized at the wedding, after the
two parts above, when they go into a room just the two of them.
That one.
(There may be a presumption that if an unrelated man and woman are
alone together like that they HAVE done the deed, leading to a shotgun-
type wedding. According to family lore someone who had her eye on an
ancestor tried this [and apparently the invitation was for more than
an assumption] but he realized that her family was probably waiting
around the corner for just that purpose, so he left and soon after
married another ancestor.)
=
=A0But
I'm sure no one has sex at that time. =A0In fact, since they have both
been fasting all day, what they do is eat and drink, and then join the
party. =A0 That night, otoh, they try to have in mind, at least a for a
little bit, that they are having sex with the intention of becoming
married (even though they are married alreay, just in case something
was wrong with the other two thirds).
For some couples, who hadn't saved themselves for the wedding night
anyway, after finally pulling off the wedding, even that night is too
soon to want to do much than breath a sigh of relief, but the hotel
room was paid for so they may as well honor tradition. But that's
another story.
I haven't been able to verify this with anyone, but I can imagine at
one time in small towns, the first two parts (the chuppah) would be
done and then the couple would go to their new home for a few hours
and come back when the party started.
Don't forget the bloody sheets. (Or if it's John Wayne and Maureen
O'Hara, the broken bed.)
Any one of these methods alone is enough to get married, but doing it
by means of sexual intercourse only is considered, in my words, not
classy. =A0Although IMO maybe it is good for two Jews on a desert
island.
Does a desert island meet the requirement of privacy?
Given that I already resented that I needed a license from the
Commnwealth to have sex, I considered it essential.
In any case, I'm claiming that the cheder yichud (room of privacy)
serves the same purpose as holding oneself out as husband and wife and
living together (if even in a hotel room for one night), that is,
becoming married not through ceremony or contract or license, but
through acting as husband and wife.
OP's relatives, and if memory serves, someone in Michener's "The
Source", make an intermediate claim, that formal licensing and
solemnization is not required for a marriage to be binding, but this
is still by contract and agreement.
mm wrote:
B) The groom says to the bride, in Hebrew, "Behold, you are sanctified
to me according to the law of Moses and Israel". "Sanctified" or
"hallowed" is m'kudeshet, which some amateurish webpages translate
incorrectly as betrothed. Betrothed means engaged, not married, and
"sanctified" here refers to marriage.
I understood that "betrothed" is, or was, somewhat more binding
than"engaged", and that the couple is now in that state for a few
moments during the wedding. (In more observant communities it might be
longer.) The Jewish Encyclopedia online says "when the agreement had
been entered into, it was definite and binding upon both groom and
bride, who were considered as man and wife in all legal and religious
aspects, except that of actual cohabitation."
http://www.jewishencyclopedia.com/view.jsp?artid=3D995&letter=3DB
I don't know. The woman who became my wife took care of all those
details, like when to go steady, when to be pre-engaged, when to be
engaged, when to get married, when to have children. As they say, she
took care of those minor decisions, while I got to decide the major
decisions like Supreme Court appointments, fiscal policy, and peace in
the Middle East. I most certainly did not get to decide that the
government has no business in regulating our personal relationship; in
those days before gay marriage we had already done enough commingling
that especially once we lived together we were domestic partners for
the purpose of insurance. (She was not Jewish, and is no longer
living, and as recently as last week there was still an open question
on account of the first condition as to whether I should wear a
tallith at a congregation which observes the tradition that only
married men where one.)
SUMMARY: David claims that the fact that under Jewish tradition a
couple going alone into a room is presumed to have had sex, and
thereby become married, means that Judaism recognizes common-law
marriage as that term is understood in US law, that in jurisdictions
where it is recognized a couple who holds themselves out as married
are bound as though formally married.
--
- David Chesler <chesler@post.harvard.edu>
Free Cory Maye
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Stan <stanleykr@hotmail.com> wrote:
NY doesn't recognize common-law marriages,
NY does recognize common-law marriages,
but if and only if they were created in a
jurisdiction where they are recognized.
but are there any cases where a judge can order
that a religious or cultural marriage be licensed
and recognized? This example is based on something
that happened to a distant cousin.
A few weeks before the scheduled wedding, the
boy's father tells his son ... The reason he
doesn't want the marriage recognized by the
civil authorities is that he, his brother, and
their sons all make their living from a family
business, of which they're all owners, and
because he's afraid this marriage might not
last, he doesn't want a situation where his
daughter-in-law has a claim. ...
That reads likes a family fraud to me. There's
no reason to involve a Rabbi in this scam when
you can go out and hire an actor.
... Anyway, suppose the marriage goes south. ...
can a judge rule that a legal marriage existed
as of the date on the contract and order it be
licensed and registered?
Too many people act as though it's the judge's
first day on the job. A judge can do anything
he/she wants to do and let you clean up the mess.
In this case, I suspect the judge will declare
it a marriage and let the putative husband take
it up with the Appelate court.
If this couple signed into a hotel as Mr/Mrs in
a State that authorizes common-law marriages,
New York will recognize it as a common-law
marriage.
Furthermore, since he was a party to a fraud
against his would-be-wife, he may be estopped
from raising the issue.
Dick
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On Mar 25, 5:37=A0am, rdad...@panix.com (Dick Adams) wrote:
... The reason he
doesn't want the marriage recognized by the
civil authorities is that he, his brother, and
their sons all make their living from a family
business, of which they're all owners, and
because he's afraid this marriage might not
last, he doesn't want a situation where his
daughter-in-law has a claim. ...
That reads likes a family fraud to me. =A0There's
no reason to involve a Rabbi in this scam when
you can go out and hire an actor.
I think up until now we've understood that the bride understands that
she is entering a relationship that is recognized as a marriage by
religious authorites, but is not recognized by the State of New York
as a marriage. Do you see it differently? I agree if she's the only
one in on it then it's fraud.
In this case, I suspect the judge will declare
it a marriage and let the putative husband take
it up with the Appelate court.
Do you think he'd rule that way if they'd had a non-ordained actor?
(My parents' marriage was solemnized in New York by a cantor -- does
that mean that what they've been saying about me all these years is
true?)
If this couple signed into a hotel as Mr/Mrs in
a State that authorizes common-law marriages,
New York will recognize it as a common-law
marriage.
What if they never leave New York?
Furthermore, since he was a party to a fraud
against his would-be-wife, he may be estopped
from raising the issue.
There may be a fine line between fraud and a pre-nuptial (or simpler
things, like not putting the new spouse's name on the old deed).
--
- David Chesler <chesler@post.harvard.edu>
Free Cory Maye
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rdadams@panix.com (Dick Adams) wrote:
That reads likes a family fraud to me. There's
no reason to involve a Rabbi in this scam when
you can go out and hire an actor.
That reminds me of the joke of the guy who convinced a woman they were
being legally married by the bell captain.
Stu
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