Let's Discuss a Solution for the Mamzerim and Niuf

The Time has Come to Stop Mamzeruth and Niuf: But How?

This post is about a solution to the problems of mamzeruth and niuf. It is about four pages and touches on some very important topics, affecting the relations of the genders, and all people who plan to marry. It is furthermore a new idea, not that it is not covered heavily in the poskim, but that people don’t do it for many generations. Nonetheless, I feel that the time has come to do this. I have semicha from HaGaon Reb Moshe Feinstein zt”l that he knows me for many years as one who delves very deeply into complex halochose (published in three halacha seforim beginning with hilchose bayis neemon). And I feel confident that the great efforts I expended in speaking constantly to gedolei hador of the past generation Reb Aharon Kotler, Reb Yaacov Kaminetsky, Reb Yosef Shalom Elyashev, etc., and getting my brain redesigned on a regular basis, has helped me. HaGaon Rav Yosef Shalom Elyashev zt”l knew me from a Beth Din I made to serve Russian Jews that basically had to ask him all of the shaalose, and he gave me his name to use for my Beth Din, which is a very special type of semicha because I understand he didn’t do that very often. Now to the article.

The time has come to stop mamzeruth and niuf. If we have a major Yeshiva in America whose Rosh Yeshivas permit a woman to remarry without a GET, and refuse to say what rabbi permitted it, and nobody protests except me and my brother, the time  has come to say it like it is. Things are very bad now and they are going to get much worse.

What is the problem? There are many Torah broken families with no GET, and people “help” the lady remarry, even though these “helping” ideas are wrong. Now is a time for creating children mamzerim. Now is a time for child molesting. And now is a time, not just to protest, but to solve the problem. But how can that be done? It can be done.

The problem is rooted in the laws of Kiddushin or Torah marriage, when the husband takes the wife with “kiddushin” and sanctifies her with a divinely sanctioned marriage, this is kiddushin. The husband gives his wife a ring and says, “You are mekudeshes to me”  you are sanctified or set aside for me. At this point the woman “belongs” to the husband. Rashi tells us in the parsho of Sotah that a woman is married to a man, but also to HaShem. This is a great level of spirituality. Why a woman is relegated to the husband is one of the great mysteries, and we will deal with it here very briefly. We must do this because the main force of the mamzer producers is the fear of offending women if the Torah does not allow them freedom to leave a marriage. Implied in this is that the Torah is wrong. And some of the more leftist innovators say this openly. But we must respond to this.

I am now working on the Ari z”l’s commentary on Shir HaShirim. So far in my work, this is the major theme. The female essence, the Schechinah, is bitter and complaints about the way she is treated. Now, there is one passage where the Ari z”l says very little and skips the main portion of the passage (I:6). And even passage 6 has no heading, but five and six are together, which is strange.  And that passage really needs a commentary. But I explain that this passage refers to the gemora in Chulin 60b, where during the first days of Creation, HaShem created the Sun and the Moon, and both of them had the light of the sun, a full blazing light. The Moon complained that two kings cannot share the same crown. HaShem responded, “Go and diminish yourself.” The Moon was upset by this and HaShem said that “Jews will use the Moon for their calendar.” But the Moon was not happy. Finally, HaShem said, “Bring for Me an Atonement that I diminished the Moon.” Thus, the diminishing of the Female Essence or Din leads to great evil in the world, which is a Chilul HaShem and HaShem is humiliated by the lowest people. For this Chilul HaShem on Himself and the Female Essence which is higher than the Male Essence of Kindness, HaShem, on Rosh Chodesh, has an offering brought, as if it could be. The Ari z”l does not comment on that passage fully because we don’t want to talk too much about HaShem’s atoning that cannot be understood in this world.

The New Moon, when the new month of moon appears, is a holiday for ladies but not men. On that day HaShem remembers that He created the world with the female equal to the male, but then things changed. And so, today, in this world, there is a world of diminished female power. The Schechina is a holiness of the Female Essence, called DIN, or justice. If the world functioned with the Female Essence of Din all sin would lead to rapid destruction, and the world would collapse. So DIN and the Female Essence are “diminished,” because true Din can only be revealed in the Higher World. Let’s leave it at this for now. We will just say what is says in Shir HaShirim about the complaints of the Schechina. In this world there is no explanation. 

But the reward for the suffering is incredible and permanent in the Higher World. Briefly, the Schechina, Israel and women are treated very shabbily in this world. For this, that they suffer and still love HaShem and obey Him, they have great reward in the Future World. When HaShem reveals His Monarchy to All, these three will be elevated. When the Female Essence demanded superiority over the Male Essence HaShem responded, “Go and diminish yourself.” The diminishing in this world leads to superiority in the Future World. Indeed, the gemora indicates that it is easier for a Jewish woman to gain Paradise in the Higher World than it is for men.  But let us go back to our original issue. What is the solution to the problem of mamzerim and niuf from broken marriages?

Rule One: The Laws of Kiddushin, or Torah marriage, are quite severe. A woman whose husband disappears, as often happened in previous generations, has a big problem, until she has proof that he died or if she receives a GET from him. Rabbeinu Tam says that a woman who obtains a GET that may be kosher, but some people disagree with it and may talk about it,  spreading questions about the GET that it is not kosher, and her child would suffer from this, she is forbidden to remarry. We may say a bit differently, that a woman who marries with Kiddushin and yet is not prepared to honor it completely, even to remain an Agunah all of her life, may not receive Kiddushin in the first place. Somebody told me that this is the opinion of a Gadol in Israel.

Rule Two: There is a mitzvah in the Torah for a man to marry with Kiddushin. See Charedim 20:6. But  a woman who will not honor Kiddushin properly, and will remarry without a proper GET, or who will seek to coerce her husband to make an invalid GET, or go to the Philly mob that allows a woman to remarry without a GET, how can she marry in the first place? It is a sin for her to accept Kiddushin.

Rule Three: A man or woman must be married for biological and Torah reasons. A man or woman who is not married but is mature biologically is a threat to himself and to the community, especially if they have been married once before and have experience in marital intimacy.

Rule Four: If a Jew has relations with anyone without marriage, he has committed the sin of Zenuse. This is very serious.

Rule Five: We thus have Rule One that it is a mitzvah in the Torah to marry with Kiddushin. But there we learn that one who will not honor Kiddushin to the end may not marry with Kiddushin. So what can such a person do? Zenuse is a serious sin, Kiddushin is forbidden. What can he/she do? There is a third way, marriage that is not kiddushin, referred to as Pilegesh. Pilegesh was once a term used to differentiate between one’s main wife, and secondary wives. Some say that marriage without Kiddushin is forbidden, and some say it is permitted. But the ones who permit it have rules that it must be a real marriage and not an excuse for zenuse. Now, in case a person is forbidden to make Kiddushin, and is forbidden to be alone and end up sinning with zenuse, chas vishalom, the only viable path is pilegesh, or marriage without Kiddushin and without zenuse.

I am now in the process of working out the exact process of pilegesh, or marriage without kiddushin. It will have to contain two things: One, a clear commitment from the male and female to marry with real marriage not zenuse, and they must clearly reveal that they do not, under any circumstances, want  kiddushin. 

Preferably, a Beth Din should draw up papers where they both sign in severe terms their intent to marry without ever making kiddushin, until they change their minds and want kiddushin and return to the Beth Din to arrange this. This is because someone may feel that when anyone marries in a community containing Orthodox Jews and they see someone living as man and wife, they assume that the marital relations were done with the intent of using biah as the act of kiddushin. We may encourage an oath or something very serious to make sure that no Kiddushin is involved. We will also strongly emphasize that zenuse is forbidden.

Years ago I suggested a similar thing to a group of Orthodox rabbis who served Conservative pulpits. I told them that they make Kiddushin diorayso but afterwards the people don’t honor the kiddushin, possibly making mamzerim. I suggested that they not make Kiddushin, but some ceremony such as a two ring ceremony where it is clear that the marriage is a partnership and not a taking of the wife by the husband. I asked some rabbis who approved.

Later somebody else who was a major rabbi in a major city in Israel suggested something similar to avoid mamzerim, and there was an uproar. His suggestion would have rocked the boat with the control of the rabbonuse over marriage in all of Israel. But in America, and in Israel if there is no  government issue, I don’t see what is wrong with avoiding mamzeruth.

At any rate, there is a great weakness in all of this. Those laws that people constantly need are well known to many rabbis, the laws, the sources, and the limaaseh, exactly how to fulfill them. But when we are talking about something that was done far in the past, such as making marriages without kiddushin, we have two weaknesses. One is that there will be an uproar over the breaking of tradition. And two, nobody really has the experience to know what to do in this area.

As far as the uproar goes, I say that those rabbis who made no uproar when the Philly Yeshiva told a married woman to remarry without a GET, without saying what rabbi permitted it, I don’t know why they should yell and scream when somebody does not do kiddushin because they are afraid of mamzeruth. And as far as the second problem, that we are far removed from making marriages that are not kiddushin, that is true. But on the other hand, there are many seforim that talk about these laws, some with many pages of details.

Thus, we are sure that kiddushin is forbidden for many people and yet marriage is their only option. So if a Beth Din can clarify their relationship that it is not kiddushin and will not become kiddushin, and everything is written down, signed by the couple and the Beth Din, there should be no problems. Whether the couple should take a GET when they separate, and the exact procedure of marrying in this way, must be developed. At this point I simply advance the basic idea. It may be, as with other halacha issues, that only time will allow for us to realize the best way to handle all of this. But one thing, I hope we never have to worry about mamzerim.