Rabbi Dovid E. Eidensohn/Monsey NY
10952/845-578-1917/eidensohnd@gmail.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
