Rabbi Dovid E. Eidensohn/Monsey NY email@example.com
Remarrying in Philadelphia Without a GET, Chas ViShalom
Question: Mrs. Friedman, maiden name Tamar Epstein, has left her husband and declared that she can remarry without a GET. Shalom Kaminetsky, the Rosh Yeshiva of Philadelphia, no doubt encouraged by his father R Shmuel Kaminetsky, has long encouraged Tamar to go her own way, to leave her husband, and now to remarry without a GET. When it became known that Tamar was actively dating and thinking of remarrying without a GET, there was some activity by some of the many rabbis who completely deny Tamar the right to remarry without a GET. But Shalom claims that he has rabbis who permit her to remarry without a GET. Because the vast majority of rabbis, including many senior rabbis, have completely forbidden Tamar’s remarriage without a GET, and Shalom claims that some rabbis permit it, what is the law we must follow in this matter? Are Tamar’s children from a new husband with no GET mamzerim?
Answer: Yes, her children from a new husband without a GET are mamzerim. It is completely forbidden for anyone to marry her until she gets a kosher GET. The reasons for this ruling are below.
1. A married woman can only escape her marriage with a GET or the death of her husband.
See Laws of Kesubos Even Hoezer 77:3 Ramo and Gro that quote from the Rosh in teshuva 35:2: A woman was tricked by a wicked person into marrying him. He told her lies and she believed him. But once married, she realized they were lies. The Rosh says that although he does not allow coercion of a husband to force a GET in most circumstances, in such a case he permits it. However, he clearly states, that even in such a case where it is clear to all that the husband is a liar and lowly person and the woman would never have married him had she known about him, the Kiddushin remains and there must be a GET.
If so, how can we assume that Mrs. Friedman, who never said her husband was a liar or horrible, just that she had some small complaints, how can she unravel kiddushin?
2. There is a way for a woman to make a condition in her Kiddushin, in her marriage, in case she fears that the husband has some blemish. If she makes a condition, something that requires knowledge of the laws of conditions, and the condition is valid, then if the husband has the feared blemish the Kiddushin is invalid, and the marriage never occurred. See EH chapter 38.
3. That is, a married woman can only leave her husband with a GET or with the death of her husband. But if a woman fears a certain blemish or whatever and makes a valid condition that her kiddushin is only valid if the husband is free of that blemish, in that case, if the husband had the blemish the kiddushin is invalid.
4. Note that in marriage there are two phases: Kiddushin and Nisuin. Kiddushin is when the wife is in her father’s house and the husband may not have intimacy with her. Nisuin is when she comes to the husband’s house and they are fully married. Conditions only help with Kiddushin, but Nisuin is different, as we will explain.
5. See EH 38:34 “If one makes Kiddushin to a woman and he or she immediately change their mind, even if the change was immediate faster than one can utter a few words, she is married with Kiddushin.”
6. The husband or wife who made a condition can negate the condition without witnesses, until there is Nisuin, intimacy or Chupah. EH 38:35
7. Once there is Nisuin or Chupah we assume that the condition made at the time of Kiddushin is now negated. Otherwise, if the condition remains, the couple is together without marriage which is bias Zenuse, a disgrace. See Even Hoezer 38:35
8. This is because to have relations without a kosher marriage is a disgrace, Bias Zenuse. See Chelkas Mechokake EH 38:48
9. Now, in the event that a couple said clearly that they have a condition and will maintain it even after Biah, the condition holds. But this is considered a disgrace and unless we hear a clear demand for the condition after the wife goes to the husband, we assume that the previous condition was limited to Kiddushin and is no longer valid.
11 What does this mean for Tamir Epstein Friedman? She never made a condition, she never claimed to make a condition, and if she did make a condition, it would be negated when the couple had a full marriage and lived together. They had a child together. Thus, the condition, even if it did exist, is negated at Nisuin.
12 To invent a finding that Tamar can remarry without a GET the only way is to prove that she entered marriage with a clear condition and maintained it all of the way through the marriage. But this never happened.
13 We have in recent years rabbis coming forward with inventions to free women from their husbands, such as Rackman, but these all died out and nobody respects them. But there is always somebody else claiming these things. Rabbi Gedaliah Schwartz told me that he sent away a couple who were married and lived together for thirty days and came to him for a GET. He told them they had no need of a GET because they had no Biah. They had marriage with a ring, but no Biah. If so, they are married. That is what is says in Shulchan Aruch EH 26:4: “A woman attains Kiddushin in three ways: by receiving something of monetary value [such as a ring]; by receiving a document [that spells out the marriage], or Biah.” We see clearly that Biah is only one of three ways to achieve Kiddushin. But this inventor sent a couple away with no GET after they asked for a GET because he invented a law in defiance of the Shulchan Aruch that a ring does not make marriage. Such people as him are busy inventing ways for women to leave their husbands without a GET. But all they produce are mamzerim.
14 If Tamir Epstein Friedman remarries without a GET from her husband Aharon, the child will be a mamzer diorayso. This is the opinion of all of the prominent rabbis, some who are very heavily involved with this case and know all of the facts. Nobody knows the name of a single rabbi who has permitted her to remarry. I was told two names, and called them, and they both denied it. It is common in these cases for names to be offered up of rabbis who permit these things, but usually, the rabbis when contacted strongly deny it.
15 A prominent rabbi involved in this case went to Israel to check out the halacha and everyone told him it was forbidden for her to remarry without a GET. They were shocked that in America such a ridiculous thing can be done, to allow a woman to remarry without a GET. One of the rabbis he spoke to was a Gadol HaDor in Bnei Braq who said there is nothing to be done except a GET.
16 I spoke to senior rabbis who are shocked that Shalom Kaminentsky could help Tamir remarry without a GET. Shalom will not say what rabbis permit this. So let us assume that ten prominent rabbis permit it, which is absolutely ridiculous. But I want to make a point here. Again, ten very prominent rabbis permit something, and ten very prominent rabbis forbid it. What is the halacha?
17 This is a sofek diorayso, and the woman has hezkas aishes ish. If so, she is forbidden to remarry.
18 The Mahari Reb Yosef ben Leib, said by some to be the rebbe of the Beis Yosef, writes that in his time if the majority of the rabbis permitted a woman to remarry and a minority forbade it, that the rabbis would not permit the remarriage. See Mahari ben Leib IV:19:3.
19 In Philadelphia, we have the opposite: the vast majority are against it, and a tiny number may be for it. Surely, we do not follow the minority.
20 Also, when great rabbis argue with lesser rabbis, we follow the greater rabbis. See the Ramo in Choshen Mishpot 25:2, that in a machlokess about halacha if it is a question of a Torah ruling we must be stringent. This means, that if ten rabbis forbid her to remarry and ten rabbis permit it, she may not remarry. So how can Shalom Kaminetsky permit her to remarry?
21 The Ramo says there that we follow the greatest scholar over the lesser scholar, and we follow the majority against the minority. The great rabbis oppose her remarriage without a GET, and so do the vast majority of Torah authorities. If she remarries and has a child, it is surely a mamzer. See also Rashbo 1:263.
22 The Gedolei HaDor are strongly opposing any changes to marriage law, such as this. We follow them, Reb Chaim Kanievsky, Reb Shmuel HaLevi Wosner, Rav Kupshitz and many other gedolim. Shalom Kaminetsky is not a posek, and if he gets involved in these things, with ridiculous inventions, he will produce mamzerim