By Rabbi Dovid E. Eidensohn
I am writing this on Rosh Chodesh
Marcheshvon, October 13, 2015. The Yeshiva world is in a turmoil because of the
report of a woman remarrying without a GET. The rabbi who performed the
ceremony, Rabbi Notta Greenblatt of Memphis, Tennessee, does not publicly
reveal his reasons for this, nor do the Rabbis Kaminetsky of Philadelphia, who
were the main influence on the woman to accept a remarriage.
I had heard previously about Tamir’s
declaration that she no longer needed a GET. In my blog
torahhalacha.blogspot.com, I attacked the Kaminetskys for backing this. I said
that if she marries and has a child I will declare the child to be a mamzer.
When she did marry without a GET, I called up a Rov who was the most involved
with the couple for several years and knew all of the aspects that pertain to
their marriage. I asked him if there was anything that he noticed in the
husband that would qualify for the woman to declare that her marriage was a
mistake and nullified. He said there was nothing. He also said that if she has
a child the child will be a mamzer. I
have spoken to major heads of Gittin Beth Dins, and they are universally
opposed in the strongest terms to this remarriage. And yet, some of them will
not sign against it, for various reasons. This leaves the impression that the
remarriage isn’t so terrible, and maybe there is a reason to be lenient. I am
therefore writing this to show that there is no excuse for the remarriage and
if she has a child the children are mamzerim.
A woman who married and found out
that her husband had serious problems, or a man who married and found out that
his wife has serious problems, is a field with a lot of literature on it, from
the Talmud, Tur and Shulchan Aruch, and poskim. Keep in mind that marriage
takes place first with Kiddushin, when the wife is not in the house of the husband
and not in a Chupah, but perhaps in her father’s house. Then there is a
complete marriage called Nisuin, when the wife goes to the husband’s house, or to a Chupah, or has intimacy.
A condition made before the woman
went to the house of the husband is very strong. If somebody violated the
condition by Kiddushin and not by Nisuin, the marriage is negated. But if the
couple made a full marriage or Nisuin and it was determined that the condition
made by Kiddusin was violated, we reject the condition. This is because once a
couple completes the marriage and are together, we assume that they negate any
condition that could negate the marriage. Perhaps because being together with a
negated Kiddushin in Zenuse. Also, the pleasure of intimacy can somehow cause
somebody to cancel any conditions that would destroy the marriage. We will soon
quote the Shulchan Aruch in these matters.
First, a Mishneh in Kesubose 72b:
“A man who takes a woman with Kiddushin on the condition that she not have
oaths] and he finds out that she has oaths, the marriage is negated. If he
marries her [full marriage] without conditions and she is round to have oaths
she leaves him without a Kesubo [meaning she must have a GET]…If he married
her [full marriage]without conditions
and finds that she has blemishes she must leave
him [with a GET] but no Kesubo.”
The gemora discusses if “He married
her with Kiddushin and then married her completely without a condition: Rav
says she needs a GET.” The Shulchan Aruch Even Hoezer 38:35 says, “One who
marries Kiddushin on a condition, and then had intimacy with her, or took her
into his house without a condition, she needs a GET. Even though the condition
was not fulfilled [we fear that] maybe even though the condition was not
fulfilled, perhaps he cancelled the condition when he slept with her or brought
her to his house.” Ramo adds, “And if somebody
else gave her Kiddushin she needs a GET from both of them.”
See Shulchan Aruch EH 39:5 “One
makes Kiddushin without conditions, and then discoverers a serious blemish, the
woman has a doubtful marriage [meaning she must have a GET].” Beis Shmuel there
quotes Chelkas Mechokake that as soon as the person realizes the problem he
complains and wants to break the marriage. But if he procrastinated and
delayed, the marriage is valid.
The Beis Shmuel then says that if
the Kiddushin and the Nisuin were done without making conditions, and it was
discovered that a major blemish, etc. was there, the marriage is valid.
Meaning, perhaps the blemish negated the marriage and perhaps not. The Torah
requires the couple to divorce with a GET or else the woman is considered married,
at least,there is a doubt if she is
really married.
The gemora discusses this in
Kesubose 73b: “One who makes Kiddushin
and the Nisuin without a condition and it is discovered that the woman [or the
man] has a serious blemish, she leaves the marriage [with a GET] but no
Kesubo.” The gemora says, “She needs a GET but does not get money for the
Kesubo.” One opinion is that the GET is only a rabbinical requirement, but it
seems that Rovo feels that it is a genuine doubt, and the Torah requires a GET.
The Beis Shmuel says that the
Rambam and the Tur rule like Rovo, that the woman needs a GET by the Torah
standard not just rabbinical standards. It seems that the Gro agrees that we
rule like Rovo. The Gro also suggests that we look at EH 38:35. There we find
“One who makes Kiddushin with a condition, and had intimacy or came to the
house of the husband without a condition, she needs a GET, even though the
condition was not fulfilled [there was a bad blemish or similar thing that
called for the cancelation of the marriage] perhaps the man cancelled the
condition when he had intimacy or brought his wife to his house.”
“Ramo writes, “And if another man makes
Kiddushin with this woman she needs a GET from both of them.” We thus see the
process of making a doubt if the marriage is cancelled. But the doubt leaves a
Torah level doubt that must be dealt with strictly.
We thus have learned of two cases
that are doubtful negations of the marriage: if the man made a condition and it
was violated but he also had intimacy or brought the wife to his house; another
case is that with no conditions made it was discovered that a bad blemish
exists. If so, there is a doubt if the person suffering from this blemish
cancelled the marriage, and we must be stringent and give the woman a GET. She
cannot just leave.
See also EH 117:3-4 “A man marries a
woman without conditions, and it is discovered that she has oaths as taught in 39, she should depart from the husband
without a Kesubo [but she must have a GET.]
Also, one who marries a woman without
conditions, and it is discovered that she has serious blemishes as mentioned in
chapter 39, and the husband did not know about this blemish, she should leave without
a Kesubo.”
We have shown so far the gemora and
the Shulchan Aruch ruling that if people marry and find problems the marriage is
not cancelled. And even if they did make a condition before they achieved full marriage
and intimacy, we assume that the full marriage caused the husband to cancel his
conditions, at least, there is a doubt about this.
If so, what happens when somebody has
a husband like Aharon Friedman, a person who has achieved a high position in the
National Congress in Washington, DC for years, a person who is admired by many people.
What grounds are there to negate the marriage?
We understand that somebody went to
some rabbis and said that Aharon was mentally ill and cannot be cured. The rabbis
believed these somebodys, which is a grave error. When two people differ and argue,
and a rabbi or a Beth Din gets involved, they must talk to both side of the case
equally. Did this happen with Aharon? End Unit One in this Discussion
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