Civil Recognition of Jewish Divorce - Clauses at Marriage

Clauses At Marriage

The Lieberman clause, developed by Rabbi Saul Lieberman, does not deal with secular law, but instead inserts, at the time of marriage, a halakhic stipulation that the marriage is only valid on the condition that the man gives a Get within 6 months of any secular court's divorce. Were the man to refuse to give a Get, the marriage would be declared null retroactively—it would be as if the couple were never married from a Jewish legal perspective.

This clause is not considered advisable according to Orthodox rabbis, because should the couple have children then divorce civilly without a Get, the marriage would be nullified retroactively and the children would in turn become children out of wedlock (Hebrew: פגם). Furthermore, since most rabbis do not accept the possibility of a "conditional marriage", any further children (born to the woman) will be bastards (mamzer), prohibiting their marriage to any Jew.

According to the Judaism 101 website, "Children born out of wedlock are not mamzerim in Jewish law and bear no stigma, unless the marriage would have been prohibited for the (halachic) reasons above."

Some rabbis will only marry a couple on condition that, should the need arise, they will handle a divorce through him so he will guarantee the Get is done correctly. Other rabbis contend that this condition is unenforceable under Jewish law. This type of condition is known as an asmachta - a condition made under circumstances that led the contracting parties to believe that it would never be germane. For example, in our case, a couple getting married never "really" assumes that they will get divorced. Although they are aware it is a possibility the marriage could fail, the act of contracting the marriage reveals their state of mind - i.e., that they do not believe that it will fail.

Due to these objections, most rabbis do not instruct the couple to make any conditions at the time of marriage.