TN 4 (03-06)
PR 05605.053 Washington
A. PR 04-334 (Washington) The Bremerton, Washington District Office Has Asked Whether Common Law Marital Relationships are Recognized in Israel
DATE: October 23, 2000
Washington will recognize a marriage valid in other jurisdictions. However, the State of Washington does not recognize common-law marriages. Under Jewish law even if the marriage was properly dissolved, the marriage will be considered valid and still in effect if the couple openly resume a conjugal relationship. The evidence provided demonstrates sufficient cohabitation in Israel to establish a valid marriage relationship. Even if the divorce had been obtained in accordance with Jewish law, the period of time lived together in Israel, revalidates their marriage under Jewish law.
On May 11, 1990, Ms. Valentine M~ filed an application for disability insurance benefits. In her application, she stated that she married Mr. Leib M~ in a civil ceremony in New York, New York on March 28, 1979, but that they divorced in 1979 in New York. A Certificate of Marriage confirms the Ms. M~ married Mr. M~ on March 28, 1979. The record contains no evidence of the divorce beyond the assertions of Ms. M~ and Mr. M~.
Ms. M~ also applied for retirement insurance benefits on October 30, 1990. In that application, she again stated that she had been married to Mr. M~, but they divorced in September 1979. However, as late as September 1990, Ms. M~ signed letters as "Mr. and Mrs. M~" (Tr. 72). In 1991, Ms. M~ told a Social Security Administration representative that she "lives with her spouse" (Tr. 70). She is also listed as Valentine M~ on a joint account with Leib M~ at Washington Mutual (Tr. 64).
Ms. M~ died on December 15, 1993. Her death certificate shows her marital status as divorced (Mr. M~ is listed as the "informant" of this fact).
Mr. M~ applied for widower's insurance benefits on January 3, 1994, at the age of seventy. In his application, he indicated that he married Ms. M~ in March 1979, but they divorced in October 1979.
Mr. M~' application for widower's insurance benefits was denied administratively and upon judicial review. The reconsideration decision states:
Mr. M~ indicated he was divorced but not separated from Ms. M~, and they lived in New York, New Hampshire, and Washington. He was advised New York and Washington do not recognize common-law marriages, and New Hampshire would recognize such a marriage only if all events took place in that state. It should be noted that in this instance, neither party alleged that they were married after their divorce in 1979.
During the administrative hearing, Mr. M~ testified that he never remarried Ms. M~. The administrative law judge determined that Mr. M~ did not qualify for widower's benefits as a surviving divorced spouse because he could not show that he was married to Ms. M~ for ten years prior to the divorce. The Appeal's Council denied review, making the ALJ's decision the final agency decision. Mr. M~ then sought judicial review.
On August 14, 1996, the Federal district court for the Western District of Washington affirmed the ALJ's decision. The magistrate judge's report, which was adopted by the district court judge, stated:
Plaintiff contends that the divorce in 1979 was not valid because an agency of the Israeli Government (the General Security Service, or “GSS”) forced him and his wife to divorce. He claims that they attempted to remarry under Jewish law by sending correspondence to officials in Israel, but that GSS again thwarted those efforts. He also cites the fact that he and his ex-wife continued to live together after their divorce.
Plaintiff has presented no competent evidence, to the Commissioner or to this Court, to support his contention that his divorce in 1979 was invalid. His repeated letters, stating that contention, are legally insufficient to establish it. He and his ex-wife never re-married; and the fact that they continued to live together after the divorce does not satisfy the requirements [for widower's insurance benefits].
The Court of Appeals affirmed the district court's decision on April 23, 1998.
On June 6, 2000, Mr. M~ submitted a letter to the Bremerton District Office stating that, when he and Ms. M~ decided to move to Israel, they were advised to get a divorce to prevent having to pay a duty on their household items. After they divorced, they moved to Israel and lived there until 1984, when they returned to the United States. They lived together in the State of Washington until Ms. M~'s death. One of Mr. M~' friends in Israel has attested that Mr. M~ and Ms. M~ lived together as a family unit in Israel.
Marriage in Israel and the Rabbinical Courts.
The State of Washington does not recognize common law marriages. However, Washington will recognize a marriage valid in other jurisdictions. See Peffley-Warner v. Bowen, 113 Wash.2d 243, 249-250 (1989).
Marriages and divorces for persons of the Jewish faith are governed by Rabbinical Courts Jurisdictional law in accordance with Jewish religious law. Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953, 7 Laws of the State of Israel 139 (1953); see also Memorandum from OGC, Division of Social Security, to Larry B~, Israeli Recognition of a Mexican Proxy Marriage and Subsequent Israeli Annulment, March 10, 1983.
One scholar has written:
Under Jewish law, since the marriage is a unilateral contract that is initiated by the husband, the husband must also be the one to initiate its dissolution. … Although the unilateral nature of the divorce makes it sound simple to achieve, there are a few qualifications within Jewish law. First, a husband must begin by giving his wife a bill of divorcement, known as a get [also spelled Ghet], and present it to her before sending her from his home. … If a marital relationship dissolves and one or both parties want a divorce, civil law requires that the moving party bring an action in a civil court of law. Assuming proper grounds exist for a divorce, the court will order a divorce and civil law will consider the marriage terminated. The Jewish community, however, will not regard the couple as divorced. A secular or civil divorce has no religious validity. In order for a divorce to be considered complete, thus severing all marital ties of a couple, a Jewish husband must issue his wife a get.
Marc S. C~, The Agunah Divorce Problem in Jewish Society: Exploring the Possibility of an International Law Solution, 17 WIILJ 109, 113 (1999). Whether they were married in a religious or civil ceremony, most authorities will require that a Jewish couple obtain a Jewish divorce. See, Dr. Chaim P~, Responsa Literature on Contemporary Issues: The Status of Civil Marriage in Jewish Law, The Jewish Law Report, Dec. 1995, available at http://www.Tourolaw.edu/Publicationst/JewishLaw/dec95/jirdec95.html. To a great extent Jewish law recognizes the validity of the law of the state, based upon the principle of dina de'malchuta dina, or the law of the state is the law, and requires Jewish people follow this law. Because of the significance of marriage and divorce in the Jewish religion and the Jewish legal system, the principle of dina de'malchuta dina does not apply to these matters. Thus, a Jewish divorce must be obtained to terminate a marriage under Jewish law. See Dr. Chaim P~, Intervention by Non-Jewish Courts in Jewish Divorces, The Jewish Law Report, Aug. 1994, available at http://www.tourolaw.edu/Publications/jewishlaw/aug94/part1.html; see also Distr.C.T.-A,. Probate 290/45 (ruling in district court of Tel Aviv regarding whether a civil marriage of Jews is to be considered a valid marriage under Jewish Law and has accordingly to be dissolved by a Ghet before a new marriage will be solemnized).
Additionally, even if a couple obtained a proper Jewish divorce, if they resume conjugal relations and live together as husband and wife, under Jewish law they are still married. Both the Rabbinical Court and the Israeli State High Court of Justice have ruled that, under Jewish law, the marriage of a couple properly divorced through a get will be considered valid and still existing if they resume conjugal life. See H.C.46/46 (High court of Justice ruling that where a couple which after having been divorced by a get resumed conjugal life were husband and wife in all matters until they separate again by a get).
According to both an Orthodox and a Reform Rabbi from the Seattle area, under the facts of this case, Mr. M~ and Ms. M~ would clearly be considered as husband and wife under Jewish law. (Based on phone interviews with Reform Rabbi Scott S~, Temple De Hirsch Sinai, and Orthodox Rabbi K~ of Va'ad HaRabinim of Greater Seattle). According to both Rabbi S~ and Rabbi K~, with or without either a proper religious marriage or a religious divorce, once Mr. M~ and Ms. M~ lived in Israel as husband and wife, and represented their relationship as husband and wife to the Jewish community, it would be proper to state that the common practice would be to hold Mr. M~ and Ms. M~ as married under Jewish law.
Mr. M~ and Ms. M~ married in a civil ceremony in New York, New York on March 28, 1979. They divorced in 1979 in New York. There is no evidence in the record to indicating the divorce was obtained in accordance with Jewish law. Even if their divorce had been obtained in accordance with Jewish law, the period of time lived together in Israel, presenting themselves as a husband and wife, from 1979 until 1984, revalidates their marriage under Jewish law. During their time in Israel, and continually thereafter up to the death of Ms. M~, Jewish law, therefore, would legally define Mr. M~ and Ms. M~ as husband and wife, giving no recognition to their 1979 divorce, whether civil or religious. Additionally, absent any contrary direction by Ms. M~'s estate, Israeli law would recognize the inheritance rights of Mr. M~.
Marriage in Israel is governed by the Rabbinical Courts (Jewish religious court) and subject to review only by the Israeli Supreme Court. The Rabbinical Courts recognize civil marriages between two Jews performed abroad, but do not recognize civil divorces, except in cases where a Jewish divorce is not possible. Accordingly, the Rabbinical Courts require that a Jewish couple obtain a Jewish divorce before the marriage will be considered legally dissolved. And even if properly dissolved, the marriage will be considered valid and still in effect if the couple openly resume a conjugal relationship.
Because Israeli law would not officially have acknowledged the civil divorce of Mr. M~ and Ms. M~, under Israeli marriage and divorce law they continued to be husband and wife. Because the State of Washington will recognize a marriage valid in other jurisdictions, Washington law will recognize Mr. M~ and Ms. M~ as being married.
Lucille Gonzales M~
Regional Chief Counsel
Assistant Regional Counsel