Question:
Can we rely on Rav Yosef Eliyahu Henkin psak halakha in Perushei Ibra, Chapters 3-5. Rav Henkin argues that a couple need not intend to marry according to Jewish law for kiddushin to take effect. His psak halakha considers kiddushin to be created when a couple engages in marital relations and intends to have a permanent monogamous relationship? If so, does the Hilchos of Yichud apply in the above jewish relationship according to if a jewish couple is frum and living together as man and wife for 8 years?
Answer:
Hello,
It is known that R’ Moshe Feinstein vehemently argued with R’ Henkin on this point, and the poskim do not rely on R’ Henkin psak regarding this. Let me explain. Essentially R’ Henkin’s psak that they are married is also a big chumra, because if this woman, that only had a civil marriage is considered married, then if she ever remarries, without a proper get, she is chayiv misa because she is an eshes ish. Accordingly, many irreligious couples that divorced and the woman remarried, she is chayav misa and her children are mamzerim. The poskim use R’ Moshe, who says that she is not married at all, to permit this woman to remarry even though she didn’t have a get. The poskim do not reckon with R’ Henkin, to say that she may not remarry until she has a get.
Additionally, the issur yichud here, especially when she is nida, is clearly forbidden (most probably d’orayso), according to the other poskim, which would make it a sfek d’orayso.
It is very easy for them to go to any Rov, and do a kiddushin, etc., and avoid the issue. Besides this, regardless they have to go to a Rov, because if they only had a civil marriage, that means that she doesn’t have a kesuba, which will have to be arranged, as it is for bidden for a couple, even if they are married to live together without a kesuba.
Therefore, they should see a Rov ASAP and take care of this.
Best wishes
