Jewish Religious-Only Marriages

Jewish communities were the only non-Christian group of any numer­ical significance in England and Wales in the eighteenth century, num­bering around 8,000 in 1750, and between 20,000 and 26,000 by the 1780s.²7 The fact that Jewish marriages had been exempted from the need to comply with the requirements of the Clandestine Marriages Act 1753 formed the basis of later arguments in favour of the recog­nition of Jewish marriages.²⁸ After all, if Jews were not expected to get married in the Anglican church,²⁹ then to insist that the ecclesias­tical courts only recognize marriages conducted in church would be to deny Jewish couples all remedies under matrimonial law.³⁰ As Sir William Wynne noted, the statutory exception constituted ‘a strong recognition of the validity of such marriages’.³¹

The ecclesiastical courts had taken the view that the validity of a Jewish marriage had to be tested by reference to Jewish law.³² The anomaly of an ecclesiastical court exercising jurisdiction over Jewish marriages was resolved by treating the issue as one of foreign law.

which underlines the fact that devolving regulation to religious au­thorities does not inevitably result in legal recognition.

The special treatment of Jewish marriages came under a certain degree of scrutiny in the debates over reform prior to 1836. Those seeking to be able to marry according to their own rites frequently asked why Jews - along with members of the Society of Friends - should alone be exempted from the necessity of marrying in the An­glican church. But rather than exemptions being extended to new groups, Jews and Quakers were brought within the scope of the new legislation.

The Marriage Act 1836 echoed the ambiguities of its predecessor in providing that Quakers and Jews could ‘continue to contract and solemnise marriages’ according to their own usages.³⁴ Unlike other non-Anglican religious groups, their places of worship did not have to be registered for marriage, no declarations or vows were prescribed, there was no specific legislative provision that witnesses had to be present,³⁵ and the presence of a registrar was not required. Instead, the legislation governing the registration of marriages devolved re­sponsibility to Quaker and Jewish bodies to certify who would be responsible for registering them.³⁶ In the case of Jewish marriages, it was the London Committee of Deputies of British Jews, more usu­ally referred to as the Board of Deputies.³⁷ At the same time, future marriages were declared to be valid only on condition that notice was given to the registrar and a certificate issued to authorize the marriage.³⁸

This represented an important shift in the regulation of Jewish mar­riages. The fact that they now had to take place within a formal legal framework - albeit a permissive one - raised questions as to what the status of such marriages would be if they did not comply. The an­nulling provision set out in the Marriage Act 1836 had declared that if ‘any persons’ knowingly and wilfully married without complying with certain formalities, then the marriage would be void.³⁹ Unlike a number of other provisions, it made no explicit reference to Jewish (or Quaker) marriages, and not all of the failures listed were relevant to such marriages. Nonetheless, deficiencies such as marrying without giving notice, or in a place other than that specified in the notice, or without a certificate being duly issued could clearly apply to Jewish and Quaker marriages just as much as they did to marriages in regis­tered buildings or in the office of the superintendent registrar.

In the first few decades following the Marriage Act 1836 there do not seem to have been any issues with Jewish marriages taking place outside the legal framework.

Keligtous-Onb MarrtagestnEnglandand Wales 17 Synagogue established itself as a breakaway group in the 1840s and was denied recognition by the Board of Deputies, its members com­promised by combining a marriage in the register office with a Jewish ceremony. It did not conduct its own legally recognized marriages until it was able to register itself as a place of worship.⁴⁰

Again, it was increasing immigration that led to a change in prac­tice. At mid-century the Jewish population was estimated to number 30,000 to 35,000; by the end of the 1870s it had reached over 60,000, and it was to more than double by the end of the century.⁴¹ With increasing numbers of migrants from Poland and Russia arriving in England it was unsurprising that many were believed to be marrying in the form that was familiar to them rather than ascertaining what was required for a marriage under English law. Reports of Jewish weddings being performed by foreign rabbis with no authority to register the marriage began to appear from the late 1860s⁴² and in­creased during the 1870s.⁴³ It was suggested that such religious-only marriages were facilitated by the simplicity of the Jewish marriage ceremony and by the lack of any formal clergy within Jewish commu- nities.⁴⁴ As Englander has noted:

In those parts of Eastern Europe from which most immigrants originated, the marriage ceremony was performed in a private house, possibly (but not necessarily) in the presence of a rabbi or other minister of religion. The service was short, the ritual atten­uated. The minimal requirement of a valid marriage ceremony was that the bridegroom place a ring on the finger of his bride in the presence of two adult reputable Jewish male witnesses while reciting in Hebrew ‘Behold thou art consecrated unto me accord­ing to the law of Moses and Israel’. The ketubah (marriage con­tract) was signed by the parties but not put on record.⁴⁵

Efforts were made to raise awareness of what was required for a le­gally recognized marriage: the Manchester Ccurier reported that a sermon had been delivered in Yiddish and noted that a ‘series of ad­dresses in the minor synagogues’ were being delivered to raise aware­ness of the legal requirements.⁴⁶ Measures were also put in place to reduce the cost of getting married in a recognized synagogue.

Even so, the last decades of the nineteenth century and the first few years of the twentieth saw a number of cases coming before the courts involving Jewish marriages that had taken place outside the legal framework. The treatment of these marriages depended on the remedy sought. Deserted wives seeking maintenance from errant

husbands in the magistrates’ courts received short shrift. Pleas that the ceremony had been conducted in accordance with Jewish law fell on deaf ears: the view was taken that maintenance could only be or­dered if there was a lawful marriage, and a lawful marriage required that notice be given to the registrar.⁴⁷ In a dispute over inheritance, by contrast, the marriage was upheld on the basis that there was no evidence that the wife had ‘knowingly and wilfully’ failed to comply with the requirement to give notice.⁴⁸ In so deciding, however, the case also confirmed that Jewish marriages were subject to the same annulling provision as all other marriages.

The narrative surrounding such marriages was strikingly similar to that heard in relation to Catholic marriages some decades earlier, albeit with certain differences. Commentators highlighted the foreign origins of these rabbis and the couples being married in this way, but as an explanation rather than as a justification for reform. Many within England’s established Jewish communities saw these informal marriages as threatening to the cohesion of Anglo-Jewry and their hard-won status⁴⁹: the Board of Deputies wanted to ensure that mar­riages were conducted under its purview, rather than seeking to argue for the recognition of those conducted by foreign rabbis.

Commentators also pointed to the impact on deserted wives and children, and to the way in which the non-recognition of informal marriages facilitated bigamy. The Jewish Chronicle noted a case that had been brought to the notice of the Board of Deputies in which a man appeared to have gone through no fewer than five illegal mar­riages.

because he is of our faith... the accomplice of this expert ‘big­amist’ can screen himself behind the impunity clause: the ‘big­amist’ himself can even solemnize his own so-called marriages and indulge in his vile propensities ad lib: the laws, English and Jewish, are alike rendered powerless against both.⁵⁰

In addition, considerable emphasis was placed on the need for regis­tration. In a desertion case from 1904, an ‘assessor’ to Dr Adler, Chief Rabbi, confirmed that ‘[t]here were several forms of ceremony which might be used, and yet be valid as civil marriages; but there must be registration’.⁵¹ What was meant by ‘registration’ in this context was not the subsequent recording of a marriage in a formal register, but rather giving notice to the superintendent registrar in order to obtain the necessary permission for the marriage to go ahead. This reflected the requirements of the Marriage Act 1836, in that a failure to give

Keligtous-Onb MarrtagestnEnglandand Wales 19 notice could render the marriage void, whereas a failure to include it in the register would not.

As well as encouraging couples to marry in a legally recognized ceremony, efforts were made to amend the law. The Marriage Act 1836 had made it an offence for any person to solemnize a marriage in any place other than the registered building specified in the notice of marriage,⁵² but since Jewish and Quaker marriages did not have to be conducted in registered buildings they were exempted from its scope. The Jewish Chrcnicle noted that the Board of Deputies wished to surrender this ‘doubtful privilege’ because it had ‘generated serious abuse of the civil and religious law and given every facility for the Ir­regular Marriages’.⁵³ In the event, however, no such amendment was made, and with the decline of immigration from Eastern Europe the incidence of religious-only marriages ceased to be a matter for public concern.⁵⁴

This history of religious-only marriages within Jewish communities is of particular importance given the erroneous perception that Jewish marriages have had and continue to have a special status. Under the legislation it is not Jewish marriages that are privileged so much as certain Jewish organizations. The Board of Deputies, the West Lon­don Synagogue, and the St John’s Wood Synagogue all have the power to certify who is to be responsible for registering marriages. But the mere fact that a marriage is conducted according to Jewish rites does not grant it any right to be registered if it is conducted outside the le­gal framework. Nor does it guarantee its legal recognition, although the question of what is necessary to bring a Jewish marriage within the scope of the Marriage Act 1949 has not been settled.