Marriage and Family Laws and Their Impact
on Civil Registration of Vital Events
by Suzan Wynne
The Galitzianer, Volume 11, Number 1, 16 November 2003
On September 23, 1726, Austrian ruler, Charles VI, issued an order that only one member of a Jewish family could be pro incola, or allowed to marry and be recognized as a legitimate household (JE, 11, 1902). Recognition as a legitimate household, a familiant, initially required registration and payment of a substantial tax. In practical terms, however, because of quotas that existed in many places at that time in the Empire, permission to marry was granted only if and when a death or movement of official registration to another jurisdiction created a vacancy in the locality. Although there was no interruption of religious marriage, members of these unofficial marriages were at a disadvantage when they applied for business licenses and permission to engage in certain occupations or to move their households to major cities or to do a host of other things that were set out in the family laws.
Marriages, births and deaths were to be registered by the Catholic parish where the family lived. To further clarify the previous law, a law on May 13, 1734 set forth the minimum marriageable age for Jewish males and females: 18 and 15, respectively. The law required that the parties document their ages based on birth or circumcision registers. If there were no registers, a local nobleman could attest to their ages. This law no doubt reflected the reality that Jewish vital event registration was, at best, spotty, despite the existence of laws requiring registration of births, marriages and deaths with the Catholic Church. In successive Judenpatents, marriage laws and restrictions were spelled out in greater detail. But it is clear from reading these documents that Jews were not complying with the registration or marriage laws.
By 1789, when the Judenpatent for Galicia was issued, there was no restriction on the number of marriages, unlike earlier Judenpatents. It should be noted, however, that Jews living in the Lemberg district fell under special restrictions that included a quota for the number of families that could live there. But, although Joseph II softened the quota system that had existed before him, his successors re-instituted the restrictions. They remained more or less in place until 1868. To make matters worse, from 1810 to 1868, Jews wishing to marry, were required to pass an examination based on the book, Bene Zion, written by Herz Homberg, a Jew by birth who despised Talmudic Judaism and used his considerable influence with the central Austrian authorities to undermine the efforts of the Orthodox and Hasidim to maintain their religious influence and authority. Homberg's extreme views were attractive to forces wishing to encourage Jewish assimilation, and, thus, Bene Zion and other books by Homberg, became tools for the government to expose Jews to secular philosophy and concepts that religious leaders considered heretical and dangerous.
Reforms in 1848 abolished the familiaten restrictions in Bohemia and Moravia but it was not until Emancipation in 1868, that the vestiges of these harsh marriage laws were finally abolished in Galicia. The changes were greeted variably in the different parts of the Empire. Jews in Austria, Bohemia, Moravia and most of Hungary greeted the requirement for civil marriage as a welcome feature of their new freedoms. But, in Galicia, under strong Hasidic influence, which was opposed to any government interference with the regulation of marriage, most Jews continued their long practice of ignoring the law requiring civil marriage for everyone. Indeed, study of the sparse Galician marriage records from the 19th century clearly demonstrates that most Galician Jews continued their long practice of having only religious marriages without registering them with civil authorities.
Added to the other unpleasant features of Austrian law with respect to Jewish marriage was the marriage tax that characterized Austrian policy until Emancipation in 1868. All civil marriages between Jews were taxed. The amount of the tax varied over time but the fact of the tax was more important to the Galician community than the actual amount. Non-Jews were not similarly taxed.
In a series of efforts to force the issue of compliance in Galicia, a law passed in Vienna in 1875 strongly reiterating the requirement for civil marriage. The law also set forth 72 Jewish administrative districts that were identical to the kehillot districts. Most of the districts were broken into sub-districts and each district and sub-district was mandated to have government appointed rabbis as registrars. The law also designated these rabbis as the parties to perform civil marriages and to enforce the regulations governing registration of vital events. No longer would Jews have to register vital events with the Catholic Church, a major cause of Jewish resistance. The law clearly spelled out the processes for registration, the sanctions for noncompliance, and the procedures that "unmarried" fathers would have to follow if they wished to appear on the birth records of their children. Failure to follow the procedures would result in the child being listed as illegitimate, the father not being named at all and the child be called by the mother's surname. The law went into effect in 1877 with the publication of a regulation issued by the Austrian government.
How were the births of Jewish children from these religious marriages handled after the 1877 regulations were published? Even when fathers attested to their paternity, children were recorded as illegitimate. However, their surnames were handled in a variety of ways. In some districts, births in the 1877-1885 period generally listed the father's surname, even when the child was marked as "illegitimate." But, around 1885, registers began to provide only the first (or first and middle) names of the child, leaving the matter of the surname ambiguous. In some districts, registration of the father's name and other identifying information was totally deleted by 1900, leaving only the name of the mother and her parents. Most often the mother was, herself, a product of a religious marriage and it was evident that she carried the surname of her mother. One can see how this upsets the usual order of things from a genealogical point of view.
After 1877, since births were recorded under the direction of the official rabbi in the district, this must have posed quite a dilemma for some of those official rabbis. While the government attempted to appoint rabbis who were neither Hasidic nor Orthodox, in some areas of Galicia, there simply were no rabbis who did not fit that description. There is a little volume published in 1915 that lists the official rabbis in many Galician districts. Since many of them are my relatives, I know for a fact that they were, indeed, Hasidic. The post brought in an income since registration fees had to be paid, but what they must have struggled with! The rabbi was mandated to follow the law and record the child's surname as the mother's. It is no wonder that birth records reflect wide variability in enforcement.
Still, gradually, governmental pressure must have forced the issue because, by the end of the 19th Century, fathers increasingly disappeared from birth records and references to the children indicate that they were known by their mother’s surnames. The issue came to a head in the early part of the 20th century, when immigration to the U.S. and elsewhere in Europe increased and travel documents had to be obtained. Suddenly, Jews confronted requirements to prove that they were married and that their children were legitimate. They now found a compelling reason to go through with a civil marriage. Then, too, during that same time, as Jews moved from villages to towns and urban Jews became more secular and acquired money and property, the issues of business licenses, passports, admission to universities, stature and inheritance became more pressing. These developments encouraged Jews to become more compliant with societal laws and norms.
Galician marriage books, which had few entries until the World War I period, began to be filled with the civil marriages of people who had long been parents and grandparents. It was the custom for official rabbis to go back to the birth entries for the children to note that a civil marriage had taken place. Such notes generally changed the surname of the child to the father's as well. Of course, by the time a civil marriage was conducted in a family, surnames were a fairly, confused issue, since children may have been named after several generations of women who were, themselves, named after their mothers. Thus, when conducting research in Galician records, one must always be aware that the people being researched could have borne the names of their mothers.