The Volokh Conspiracy

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Religion and the Law

Was This Couple Married 0, 1, or 2 Times?

Florida Law + New York Law + Jewish Law = ....


From today's decision of the New York appellate court in Bernstein v. Benchemoun (Judges Valerie Brathwaite Nelson, Joseph A. Zayas, William G. Ford & Helen Voutsinas):

On February 7, 2013, the parties were married in a Jewish religious ceremony in Florida. At the ceremony the parties executed a religious marriage contract, known as a ketubah, but they did not obtain a marriage license from the State of Florida. The parties then came to New York, where they executed a second ketubah in the presence of a rabbi.

In 2018, the wife sought a divorce, and the husband responded that the parties were never married. Husband wins, says the court:

"The general rule is that the legality of a marriage 'is to be determined by the law of the place where it is celebrated.'" Since 1967, Florida has required a marriage license for a marriage to be valid, and a person solemnizing a marriage must require that the parties to the marriage produce a marriage license. Accordingly, the parties' religious marriage in Florida was not valid under Florida law and was not cognizable in New York.

Under New York law, a marriage is not void for the failure to obtain a marriage license if the marriage is solemnized. The plaintiff contends that a marriage was solemnized in New York when the parties executed a second ketubah in New York, in the presence of a rabbi. However, at the hearing, the rabbi who supervised the execution of the second ketubah testified that he never solemnized a marriage, and could not have solemnized a marriage since the parties were already married under Jewish law. A finding that there was a solemnized marriage would require an analysis of religious doctrine, which could offend the First Amendment of the United States Constitution. Thus, under the circumstances, the Supreme Court could not determine that there was a cognizable marriage in New York.

Congratulations to Martin E. Friedlander, who represents the husband.