New York City – Most people associate Tory Burch with $500 boots and the resurgence of 1960s fashion design. In four short years she has managed to build a veritable fashion design empire that has taken over the minds of teenage girls and married women… as well as the bank accounts of their fathers and husbands (or what’s left of their bank accounts in light of the current economic downturn).
Few, however, would identify her as a typical example of one of the tens of thousands of people that are the subject of a great halachic debate between Rav Yoseph Eliyahu Henkin, zt’l, (1881–1973) and Rav Moshe Feinstein, zt’l (1895–1986).
What lies at the heart of this great debate are the following questions: How does the halachah view a secular (non-religious) Jewish marriage? And what happens if such a marriage dissolves? When a Jewish couple that was married either in the secular court system or by a non-Orthodox rabbi is divorced, rarely do they seek to also obtain a Jewish bill of divorce, called a get. This could present a problem for the woman’s future marriage prospects and, unfortunately, for those of her children as well.
Although Tory Burch (daughter of Reva Robinson and thus halachically Jewish) apparently received the last name she is now using from her marriage to Chris Burch (not a Jew), she was previously married to William Macklowe, a famous real-estate developer who is also halachically Jewish. The marriage did not succeed, and it ended rather quickly in a secular divorce. The question is, though: What is the halachic status of this first marriage?
Rav Moshe Feinstein discusses this issue in Igros Moshe (Even HaEzer, vol. IV, No. 59; he discusses the issue in general, not Ms. Burch’s particular circumstances). In discussing these types of marriages in a letter to Rabbi Nissan Alpert, zt’l, Rav Moshe is of the opinion that since the original wedding was, in all probability, never made with any halachic validity, the need for a halachic get is not imperative. A halachic wedding requires a woman to receive an item of value accompanied by the Jewish declaration of marriage in the presence of two Sabbath-observing witnesses. If there were no Sabbath-observing witnesses present when the ring was given and the declaration made, there is no halachic wedding, states Rav Moshe.
Rav Henkin, on the other hand, disagrees. He quotes a principle of the Talmud (Gittin 81b and codified in Shulchan Aruch, Even HaEzer 26:1) that a person does not generally wish that his marriage not be legitimate. The Mishnah there in Gittin explains that, according to Beis Hillel, if a man divorces his wife but subsequently remains with her in a pundaki (an inn), a get is required. The Shulchan Aruch (E.H. 149:1) rules in accordance with Beis Hillel.
Rav Henkin extends this ruling to cases such as the one mentioned above, as well. He points out that, although no longer practiced, there are ways of enacting a halachic marriage other than with the use of a ring (see the first Mishnah in tractate Kiddushin), and this is what is at play both in our case and in the Mishnah in Gittin. Since the members of this married couple are living together as a married couple, and the world views them as such, we have all the elements of a halachic marriage. What are the elements? The three elements are (1) kosher witnesses; (2) a valid method of effectuating marriage; and (3) the declaration of marriage.
In Rav Henkin’s view, who are the “kosher witnesses”? The witnesses are the entire world, including Sabbath-observing neighbors and friends that see them acting as a married couple. Rav Henkin refers to another Talmudic principle called an “anan sahadi,” which literally means “we [all] testify.” In his view, witnesses do not actually have to see it, but knowing it with certitude is sufficient.
Where is the declaration of marriage? According to Rav Henkin, there is a tacit, unspoken declaration of marriage that is based on the fact that a person does not wish his marriage to be invalid. Thus, when there is another method of effectuating the marriage—living together as husband and wife—Rav Henkin rules that the tacit declaration is the accompanying secondary marriage effectuation. Although it may sound somewhat strange, Rav Henkin’s position is not so novel. Poskim have discussed the notion of savlanos, sending gifts to one’s new bride, as a problem, and the issue is extended beyond the case of the Mishnah in Gittin.
Rav Feinstein attacks Rav Henkin’s position, stating that the husband thinks that the civil marriage has already effected the marriage. In defense of Rav Henkin, one could state that the non-observant Jew does not think that the civil marriage is effecting any change in the Divine view of his marital status. Rather, he thinks that the civil marriage is merely affecting (not effecting) the social apperception of his status. Rav Henkin, therefore, can quite justifiably employ non-conscious religious desires to effect the marriage.
How have the poskim viewed this great halachic debate? Rav Moshe Feinstein himself writes that ideally one should require a get in order to satisfy the other view as well. Rav Ovadiah Yosef also requires a get under ideal circumstances. However, the challenges of arranging for a get when the husband is truly not around allows for leniencies, according to both Rabbi Feinstein and Rav Yosef.
Just out of curiosity, one may wonder how contemporary Reform Judaism viewed this debate. Surprisingly enough, the halachic issues were dealt with in a Reform journal decades ago. It seems that the responsa committee of the Central Conference of American Rabbis were somewhat insulted by Rav Moshe Feinstein’s position and stated that in their view Rav Henkin was correct.
Does it really matter for Tory Burch? Would it make a difference for her? Perhaps yes. It seems that she has been dating Jewish men since her divorce. She has dated both an Israeli designer and an American Jewish businessman.