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Rambam - 1 Chapter a Day

Gerushin - Chapter Ten

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Gerushin - Chapter Ten

1

Whenever in this text1 we have used the terms "the get is void," or "the divorce is not effective," the intent is that the get is void according to Scriptural law. The woman is married in the full sense of the term. If she remarries, she must leave [her second husband]; any child she bears him is illegitimate.

If the husband [of a woman who receives such a get] is a priest, she is not forbidden to him as a divorced woman,2 with one exception: a person who divorces his wife and tells her: "You are divorced from me, but you are not permitted to marry anyone else."3 Although such a divorce is not binding, according to Rabbinic law4 such a woman is forbidden to marry a priest, as [implied by Leviticus 21:7]: "[They may not take] a woman divorced from her husband." Our Sages interpreted this to mean: "Even if she is divorced only from her husband and not permitted to marry any one else, she is forbidden to the priesthood. This is the "wisp of a get" that disqualifies [a woman] from [marrying a member of] the priesthood by Rabbinic decree.

א

כָּל מָקוֹם שֶׁאָמַרְנוּ בְּחִבּוּר זֶה שֶׁהַגֵּט בָּטֵל אוֹ אֵינוֹ גֵּט אוֹ אֵינָהּ מְגֹרֶשֶׁת הֲרֵי זֶה גֵּט בָּטֵל מִן הַתּוֹרָה וַעֲדַיִן הִיא אֵשֶׁת אִישׁ גְּמוּרָה. וְאִם נִשֵּׂאת תֵּצֵא וְהַוָּלָד מַמְזֵר. וְאִם הָיָה בַּעְלָהּ כֹּהֵן לֹא נֶאֶסְרָה עָלָיו מִשּׁוּם גְּרוּשָׁה. חוּץ מִן הַמְגָרֵשׁ אֶת אִשְׁתּוֹ וְאָמַר לָהּ הֲרֵי אַתְּ מְגֹרֶשֶׁת מִמֶּנִּי וְאֵין אַתְּ מֻתֶּרֶת לַכּל שֶׁאַף עַל פִּי שֶׁאֵין זֶה גֵּט הֲרֵי זוֹ פְּסוּלָה לִכְהֻנָּה מִדִּבְרֵיהֶן שֶׁנֶּאֱמַר (ויקרא כא ז) ״‎וְאִשָּׁה גְּרוּשָׁה מֵאִישָׁהּ״‎ אָמְרוּ חֲכָמִים אֲפִלּוּ לֹא נִתְגָּרְשָׁה אֶלָּא מֵאִישָׁהּ וְלֹא הֻתְּרָה לַכּל נֶאֶסְרָה לִכְהֻנָּה וְזֶהוּ רֵיחַ הַגֵּט שֶּׁפּוֹסֵל בִּכְהֻנָּה מִדִּבְרֵיהֶם:

2

Whenever, in this text, we have used the term "the get is unacceptable," the intent is that the get is unacceptable merely according to Rabbinic decree.5 Thus, according to Scriptural law, the woman is forbidden to the priesthood.6

A priori, she should not remarry. If, however, she has remarried, she need not leave [her second husband].7 Children born [from her second marriage] are legitimate. A second get that is acceptable should be given to her, while she remains married to her [second] husband.

Should it be impossible to have a second [get] composed, if her second husband is scrupulous and voluntarily divorces her this is praiseworthy, provided she has not borne [him] children. If, however, she has borne him children, he should not divorce her because of [our Sages'] disqualification of her get, lest this cause his sons' reputation to be sullied.

ב

וְכָל מָקוֹם שֶׁאָמַרְנוּ בְּחִבּוּר זֶה שֶׁהַגֵּט פָּסוּל הֲרֵי זֶה פָּסוּל מִדִּבְרֵי סוֹפְרִים בִּלְבַד וְנִפְסְלָה בּוֹ מִן הַכְּהֻנָּה מִדִּבְרֵי תּוֹרָה. וְלֹא תִּנָּשֵׂא לְכַתְּחִלָּה וְאִם נִשֵּׂאת לֹא תֵּצֵא וְהַוָּלָד כָּשֵׁר. וְכוֹתְבִין לָהּ גֵּט אַחֵר כָּשֵׁר וְנוֹתְנִין לָהּ וְהִיא תַּחַת בַּעְלָהּ. וְאִם אִי אֶפְשָׁר לִכְתֹּב אַחֵר וְהָיָה הַבַּעַל וָתִיק וְגֵרֵשׁ מֵעַצְמוֹ הֲרֵי זֶה מְשֻׁבָּח אִם אֵין לָהּ בָּנִים. אֲבָל אִם יֵשׁ לָהּ בָּנִים לֹא יוֹצִיא מִפְּנֵי פְּסוּל הַגֵּט שֶׁמָּא יוֹצִיא לַעַז עַל בָּנָיו:

3

Whenever, in this text, we have used the term "the status of the divorce is in doubt," the woman should not remarry. If she has remarried, she must leave her second husband, and there is a doubt regarding the legimitacy of any children that she bears [her second husband], for her own status is in doubt, and she may be forbidden to engage in marital relations.8

If [a man] divorces his wife with an unacceptable get, or the status of [their] divorce is in doubt, and he desires to remarry her, she is permitted to her husband. He does not have to renew the marriage,9 recite the seven marriage blessings,10 or write her a new marriage contract,11 unless she has been divorced in a manner that is binding.

ג

וְכָל מָקוֹם שֶׁאָמַרְנוּ בְּחִבּוּר זוֹ הֲרֵי זֶה סְפֵק גֵּרוּשִׁין אוֹ שֶׁהִיא סָפֵק מְגֹרֶשֶׁת לֹא תִּנָּשֵׂא וְאִם נִשֵּׂאת תֵּצֵא וְהַוָּלָד סְפֵק מַמְזֵר מִפְּנֵי שֶׁהִיא סְפֵק עֶרְוָה. וְכֵן אִם גֵּרֵשׁ אֶת אִשְׁתּוֹ בְּגֵט פָּסוּל אוֹ שֶׁהָיְתָה סָפֵק מְגֹרֶשֶׁת וְרָצָה לְהַחֲזִירָהּ הֲרֵי זוֹ מֻתֶּרֶת לְבַעְלָהּ. וְאֵינוֹ צָרִיךְ לְחַדֵּשׁ הַנִּשּׂוּאִין וּלְבָרֵךְ שֶׁבַע בְּרָכוֹת וְלִכְתֹּב כְּתֻבָּה עַד שֶׁתִּתְגָּרֵשׁ גֵּרוּשִׁין גְּמוּרִין:

4

Our Sages ordained that whenever [a woman] who was given a get that is void remarries, she must be divorced by her second husband, lest people say: "A married woman has been allowed to remarry without [receiving] a get."12 And she must receive a [second] get from her first husband, so that she be permitted to marry anyone else.

She is forbidden to remarry both her first and second husband forever.13 [This applies] even if she entered into marital relations [with her second husband] without knowing of the prohibition involved. [This prohibition was instituted]14 lest people say: "The man remarried his divorcee after she was married [to another man]." If one of the two transgressed and remarried her, he should be compelled to send her away.

ד

כָּל מִי שֶׁנִּשֵּׂאת בְּגֵט בָּטֵל הֲרֵי זוֹ צְרִיכָה גֵּט מִבַּעַל שֵׁנִי מִדִּבְרֵיהֶן כְּדֵי שֶׁלֹּא יֹאמְרוּ אֵשֶׁת אִישׁ יוֹצְאָה בְּלֹא גֵּט. וּצְרִיכָה גֵּט מִן הָרִאשׁוֹן לְהַתִּירָהּ לִשְׁאָר הָעָם. וְנֶאֶסְרָה עַל שְׁנֵיהֶם לְעוֹלָם אַף עַל פִּי שֶׁנִּבְעֲלָה בִּשְׁגָגָה. כְּדֵי שֶׁלֹּא יֹאמְרוּ הֶחֱזִיר זֶה גְּרוּשָׁתוֹ אַחַר שֶׁנִּשֵּׂאת. וְאִם עָבַר אֶחָד מִשְּׁנֵיהֶן וְהֶחֱזִירָהּ יוֹצִיא:

5

A similar law applies when a woman remarries [after] witnesses testified that her [first] husband died, and later her first husband returns. [This applies] regardless of whether her [first] husband was a mentally sound individual or a deaf-mute, or whether she remarried a mentally sound person or a deaf-mute, who cannot establish a marriage bond in a complete sense.15 She must be divorced by both of them; both must give her a get, and she is forbidden to engage in marital relations with either of them again.

ה

וְכֵן הַדִּין בְּאִשָּׁה שֶׁבָּאוּ עֵדִים שֶׁמֵּת בַּעְלָהּ וְנִשֵּׂאת וְאַחַר כָּךְ בָּא בַּעְלָהּ בֵּין שֶׁהָיָה בַּעְלָהּ פִּקֵּחַ בֵּין שֶׁהָיָה חֵרֵשׁ בֵּין שֶׁנִּשֵּׂאת לְפִקֵּחַ בֵּין שֶׁנִּשֵּׂאת לְחֵרֵשׁ שֶׁאֵין קִדּוּשָׁיו קִדּוּשִׁין גְּמוּרִים תֵּצֵא מִשְּׁנֵיהֶם וּצְרִיכָה גֵּט מִזֶּה וּמִזֶּה וְנֶאֶסְרָה עַל שְׁנֵיהֶם עוֹלָמִית:

6

If [after witnesses testified that a woman's husband died or that she was given a get], she was consecrated [but the marriage bond was not yet consummated],16 and then her first husband returned, or it was discovered that the get was void, she is permitted to her first husband. Nor must she be divorced by the second husband, for a marriage bond cannot be established with a woman who is forbidden because of a severe prohibition.

[In this instance, we do not require a divorce out of fear that] someone say: "A married woman is being released without a get." Since the marriage was not consummated, the person will rationalize: "The consecration was made on condition, and that condition was not fulfilled."

ו

הֲרֵי שֶׁנִּתְקַדְּשָׁה וְאַחַר כָּךְ בָּא בַּעְלָהּ אוֹ נִמְצָא הַגֵּט בָּטֵל הֲרֵי זוֹ מֻתֶּרֶת לְבַעְלָהּ וְאֵינָהּ צְרִיכָה גֵּט מִשֵּׁנִי שֶׁאֵין קִדּוּשִׁין תּוֹפְסִין בַּעֲרָיוֹת. וְאֵין חוֹשְׁשִׁין שֶׁמָּא יֹאמְרוּ אֵשֶׁת אִישׁ יוֹצְאָה בְּלֹא גֵּט כֵּיוָן שֶׁלֹּא נִשֵּׂאת יֹאמְרוּ תְּנַאי הָיָה בַּקִּדּוּשִׁין וְלֹא נִתְקַיֵּם:

7

[The following laws apply when] a woman married, and afterwards it was discovered that her get was void, or [it had been reported that her first husband died,] and he returned. Neither her first nor her second husband is entitled to an ownerless object that she discovers17 nor to the profits from her work.18 Neither can he annul her vows.19 None of the benefits that either of them received after she married [her second husband] should be expropriated from them.20 Neither of them is obligated to pay her the money due her by virtue of her marriage contract,21 nor to fulfill any of the stipulations of the marriage contract.22

Neither of them is required to pay for her sustenance. If she took [money or property for this purpose] from either of them, she must return it. Neither of them is held responsible for any of the property she brought to the marriage that became worn out or was lost,23 even nichsei tzon barzel.24

A child born to [the second husband] is illegitimate. If the first husband engages in relations with her before she is divorced by the second husband, a child born of this union is illegitimate by virtue of Rabbinic decree.

If the second [husband] divorced her and she received the money due her by virtue of her marriage contract, and afterwards her [first] husband came or it was discovered that the divorce was void, we do not expropriate the money she received for her sustenance or by virtue of her marriage contract.25

ז

הָאִשָּׁה שֶׁנִּשֵּׂאת וְנִמְצָא הַגֵּט בָּטֵל. אוֹ בָּא בַּעְלָהּ אַחַר שֶׁשָּׁמְעָה שֶׁמֵּת. אֵין הַבַּעַל הָרִאשׁוֹן וְהַשֵּׁנִי זַכָּאִין לֹא בִּמְצִיאָתָהּ וְלֹא בְּמַעֲשֵׂי יָדֶיהָ וְלֹא בַּהֲפָרַת נְדָרֶיהָ. וְכָל פֵּרוֹת שֶׁאָכְלוּ שְׁנֵיהֶן אַחַר שֶׁנִּשֵּׂאת אֵין מוֹצִיאִין מֵהֶן. וְאֵין לָהּ כְּתֻבָּה וְלֹא תְּנַאי מִתְּנָאֵי כְּתֻבָּה וְלֹא מְזוֹנוֹת לֹא עַל זֶה וְלֹא עַל זֶה. וְאִם נָטְלָה מִזֶּה אוֹ מִזֶּה תַּחֲזִיר. וְכָל מַה שֶּׁבָּלָה אוֹ אָבַד מִנְּכָסֶיהָ וַאֲפִלּוּ מִנִּכְסֵי צֹאן בַּרְזֶל אֵין מוֹצִיאִין אוֹתָן לֹא מִזֶּה וְלֹא מִזֶּה. וְהַוָּלָד מִן הַשֵּׁנִי מַמְזֵר. וְאִם בָּא עָלֶיהָ הָרִאשׁוֹן קֹדֶם שֶׁגֵּרֵשׁ הַשֵּׁנִי הֲרֵי הַוָּלָד מַמְזֵר מִדִּבְרֵיהֶם. גֵּרְשָׁהּ הַשֵּׁנִי וְנָטְלָה מִמֶּנּוּ כְּתֻבָּה וְאַחַר כָּךְ בָּא בַּעְלָהּ אוֹ נִמְצָא הַגֵּט בָּטֵל אֵין מוֹצִיאִין מִיָּדָהּ מַה שֶּׁנָּטְלָה לֹא מִן הַמְּזוֹנוֹת וְלֹא מִן הַכְּתֻבָּה:

8

Similar laws apply when one of two brothers consecrated a woman.26 The brother who consecrated the woman departed, and afterwards it was reported that he died. The other brother performed the rite of yibbum, marrying his brother's wife, and then the brother returned.

The woman must be divorced by both husbands, receiving a get from both of them, and all the stringencies mentioned above apply to her. Similarly, if a man consecrated a woman, she journeyed to another country, the husband heard that she died and married her sister,27 and afterwards it was discovered that she had not died: he must divorce both women, and all the stringencies mentioned above apply to both of them.

ח

וְכֵן הַדִּין בְּאַחִין שֶׁקִּדֵּשׁ אֶחָד אִשָּׁה וְהָלַךְ אָחִיו וְשָׁמַע בּוֹ שֶׁמֵּת וְיִבֵּם אֶת אִשְׁתּוֹ וְאַחַר כָּךְ בָּא תֵּצֵא מִזֶּה וּמִזֶּה וּצְרִיכָה גֵּט מִזֶּה וּמִזֶּה וְכָל הַדְּבָרִים הָאֵלּוּ בָּהּ. וְכֵן אִם קִדֵּשׁ אִשָּׁה וְהָלְכָה לִמְדִינָה אַחֶרֶת וְשָׁמַע שֶׁמֵּתָה וְנָשָׂא אֲחוֹתָהּ וְאַחַר כָּךְ נוֹדַע שֶׁלֹּא מֵתָה צְרִיכוֹת שְׁתֵּיהֶן מִמֶּנּוּ גֵּט וְכָל הַדְּרָכִים הָאֵלּוּ בָּהֶן:

9

[Different rules apply, however, if a man] married a woman who journeyed to another country, he heard that she died, he married her sister, and then it was discovered that his [first] wife was alive. The sister does not require a get, and his [first] wife is permitted to him.

Similar laws apply with regard to other women forbidden by severe prohibitions28 who were married under the assumption that the marriage was permitted,29 and it is discovered that the prohibition still applied. They do not require a divorce, for a marriage bond cannot be established with a woman forbidden by such a severe prohibition.

ט

אֲבָל אִם הָלְכָה אִשְׁתּוֹ הַנְּשׂוּאָה לִמְדִינָה אַחֶרֶת וְשָׁמַע בָּהּ שֶׁמֵּתָה וְנָשָׂא אֲחוֹתָהּ וְנִמְצֵאת אִשְׁתּוֹ קַיֶּמֶת אֵין אֲחוֹתָהּ צְרִיכָה מִמֶּנּוּ גֵּט וְאִשְׁתּוֹ מֻתֶּרֶת. וְכֵן שְׁאָר הָעֲרָיוֹת שֶׁנְּשָׂאָן בְּחֶזְקַת הֶתֵּר וְנִמְצְאוּ עֶרְוָה אֵינָן צְרִיכוֹת גֵּט שֶׁאֵין קִדּוּשִׁין תּוֹפְסִין בַּעֲרָיוֹת:

10

Why did they require that the sister of the woman whom the man consecrated be given a get?30 Lest people say that the [first] kiddushin were given conditionally, [the condition was not fulfilled,] and thus the law would allow marriage to her sister. Since the [first] woman's sister was divorced with a get, she - i.e., the man's first arusah - is forbidden [to him], lest people think that he married his divorcee's sister.

י

וּמִפְּנֵי מָה הִצְרִיכוּ אֲחוֹת אֲרוּסָתוֹ גֵּט. שֶׁמָּא יֹאמְרוּ תְּנַאי הָיָה בָּאֵרוּסִין וְכַדָּת נָשָׂא אֲחוֹתָהּ. וְהוֹאִיל וְיָצְאָה אֲחוֹתָהּ בְּגֵט, אֲחוֹתָהּ שֶׁהִיא אֲרוּסָתוֹ הָרִאשׁוֹנָה אֲסוּרָה, כְּדֵי שֶׁלֹּא יֹאמְרוּ נָשָׂא אֲחוֹת גְּרוּשָׁתוֹ:

11

A scribe composed [a get], but erred and gave the get to the husband and the receipt [for the woman's marriage contract] to the woman, or the man and wife erred, and the husband took the get and the wife the receipt, and thus they thought they were divorced.31

[The following rules apply] if afterwards the get is discovered in the possession of the man. If the woman has not remarried, she is considered as if she has not been divorced; it [appears to] have been revealed that the divorce did not ever take place. The husband should give her the get in the presence [of witnesses], and the divorce takes effect from the time the get is given.

If, however, she had [already] remarried, and afterwards the husband produces the get, claiming that she has not been divorced, for he is in possession of the get and it never reached her, we do not accept his claim. She is not forbidden to her [second] husband.32 Instead, we operate under the presumption that she has been divorced, the get fell from her hand and was found by [her first husband], who desires to cause her to be forbidden to her second husband.33

יא

כָּתַב הַסּוֹפֵר וְטָעָה וְנָתַן גֵּט לָאִישׁ וְשׁוֹבֵר לָאִשָּׁה. אוֹ שֶׁטָּעוּ הֵן וְנָטַל הַבַּעַל הַגֵּט וְנָטְלָה הִיא הַשּׁוֹבֵר וְכִמְדֻמֶּה לָהֶן שֶׁנִּתְגָּרְשָׁה וּלְאַחַר זְמַן הֲרֵי הַגֵּט יוֹצֵא מִתַּחַת יְדֵי הָאִישׁ. אִם לֹא נִשֵּׂאת הֲרֵי זוֹ אֵינָהּ מְגֹרֶשֶׁת וְנִתְגַּלָּה הַדָּבָר שֶׁעֲדַיִן לֹא נִתְגָּרְשָׁה וְיִתֵּן לָהּ הַגֵּט בְּפָנֵינוּ וְתִהְיֶה מְגֹרֶשֶׁת מִשְּׁעַת נְתִינָתוֹ. וְאִם נִשֵּׂאת וְאַחַר כָּךְ הוֹצִיא הַבַּעַל אֶת הַגֵּט וְאָמַר עֲדַיִן לֹא נִתְגָּרְשָׁה שֶׁהֲרֵי הַגֵּט בְּיָדִי וְלֹא הִגִּיעַ לְיָדָהּ אֵין שׁוֹמְעִין לוֹ לְאָסְרָהּ עַל בַּעְלָהּ. אֶלָּא הֲרֵי זוֹ בְּחֶזְקַת גְּרוּשָׁה וְנָפַל הַגֵּט מִיָּדָהּ וּמְצָאוֹ זֶה וַהֲרֵי בָּא לְאָסְרָהּ עַל הַבַּעַל הַשֵּׁנִי:

12

When a person divorces his wife because of unsavory reports,34 or because she is indiscriminate with regard to vows, he is told: "Inform her that you are divorcing her to chastise her, and know that you will never be able to remarry her."35

Why is [a man forbidden] to remarry such a woman? This is a decree, [instituted] lest she marry another man, repent and live chastely with him. Her first [husband] may then say: "If I had known that this would be the case, I would not have divorced her." Thus, it resembles a divorce given on a condition that was not fulfilled,36 in which case, retroactively, the get would be void. Therefore, we tell him: "Make a firm resolve to divorce her, knowing that you will never remarry her."

If, however, he transgresses and remarries her before she is consecrated to another man,37 he need not divorce her.

יב

הַמּוֹצִיא אֶת אִשְׁתּוֹ מִשּׁוּם שֵׁם רַע אוֹ מִשּׁוּם שֶׁהִיא פְּרוּצָה בִּנְדָרִים אוֹמְרִין לוֹ הוֹדִיעָהּ שֶׁמִּפְּנֵי זֶה אַתָּה מוֹצִיאָהּ כְּדֵי לְיַסְּרָהּ וְדַע שֶׁאֵין אַתָּה מַחֲזִירָהּ לְעוֹלָם. וּמִפְּנֵי מָה הַמּוֹצִיא אֶת זוֹ לֹא יַחֲזִירָהּ לְעוֹלָם. גְּזֵרָה שֶׁמָּא תִּנָּשֵׂא לְאַחֵר וְתַעֲשֶׂה תְּשׁוּבָה וְתִהְיֶה צְנוּעָה תַּחְתָּיו וְיֹאמַר הָרִאשׁוֹן אִלּוּ הָיִיתִי יוֹדֵעַ שֶׁכֵּן הוּא לֹא הָיִיתִי מְגָרְשָׁהּ וְנִמְצָא כִּמְגָרֵשׁ עַל תְּנַאי וְלֹא נִתְקַיֵּם שֶׁנִּמְצָא הַגֵּט בָּטֵל לְמַפְרֵעַ. לְפִיכָךְ אוֹמְרִים לוֹ גְּמֹר בְּלִבְּךָ לְגָרְשָׁהּ שֶׁאֵין זוֹ חוֹזֶרֶת לְךָ לְעוֹלָם. וְאִם עָבַר וְהֶחֱזִיר קֹדֶם שֶׁנִּתְקַדְּשָׁה לְאַחֵר לֹא יוֹצִיא:

13

Similarly, if [a man] divorces his wife because she is an aylonit38 or because she always experiences menstrual bleeding in the midst of sexual relations,39 he should never remarry her.

[This is a decree, instituted] lest she marry another man and have children if she was an aylonit, or her condition be healed if she suffered from menstrual bleeding. [Her first husband] may then say: "If I had known that this would be the case, I would not have divorced her." Thus, [it would appear] that her get is void and her children illegitimate. If, however, he transgresses and remarries her [before she is consecrated to another man], he need not divorce her.

יג

וְכֵן הַמּוֹצִיא אֶת אִשְׁתּוֹ מִשּׁוּם אַיְלוֹנִית אוֹ מִשּׁוּם שֶׁרוֹאָה דָּם בְּכָל עֵת תַּשְׁמִישׁ הֲרֵי זֶה לֹא יַחֲזִיר לְעוֹלָם. שֶׁמָּא תִּנָּשֵׂא לְאַחֵר וְתֵלֵד הָאַיְלוֹנִית וְתִתְרַפֵּא הַנִּדָּה וְיֹאמַר אִלּוּ הָיִיתִי יוֹדֵעַ שֶׁכֵּן הוּא לֹא הָיִיתִי מְגָרְשָׁהּ וְנִמְצָא הַגֵּט בָּטֵל וְהַבָּנִים מַמְזֵרִים. וְאִם עָבַר וְהֶחֱזִיר לֹא יוֹצִיא:

14

When an agent brings a get from the diaspora and says, "It was written and signed in my presence" [to validate the signatures to the get],40 he should not marry her. We fear that perhaps he was attracted to her and therefore testified on her behalf.

[For this same reason,] when one witness testifies that a woman's husband died,41 and she [is given license to] marry on the basis of his testimony, he should not marry her. Similarly, a sage who ruled that a woman is forbidden to her husband because of a vow42 should not marry her.

Similarly, when a man is reputed to have had relations with a maid-servant, and afterwards she was granted her freedom, or when [a man is reputed to have had relations] with a gentile woman, and afterwards she converted, he should not marry her.43 Similarly, if a gentile or a servant had relations with a Jewish woman, and afterwards the gentile converted or the servant was freed, he should not marry this woman.44 In all these instances, if a couple transgress and marry,45 they should not be forced to separate46.

יד

שָׁלִיחַ שֶׁהֵבִיא גֵּט חוּצָה לָאָרֶץ וְאָמַר בְּפָנַי נִכְתַּב וּבְפָנַי נֶחְתַּם הֲרֵי זֶה לֹא יִשָּׂאֶנָּה. שֶׁאָנוּ חוֹשְׁשִׁין שֶׁמָּא עֵינָיו נָתַן בָּהּ וּלְפִיכָךְ הֵעִיד לָהּ. וְכֵן הָעֵד הָאֶחָד שֶׁהֵעִיד לְאִשָּׁה שֶׁמֵּת בַּעְלָהּ וְנִשֵּׂאת עַל פִּיו הֲרֵי זֶה לֹא יִשָּׂאֶנָּה. וְכֵן הֶחָכָם שֶׁאָסַר אֶת הָאִשָּׁה עַל בַּעְלָהּ בְּנֶדֶר הֲרֵי זֶה לֹא יִשָּׂאֶנָּה. וְכֵן הַנִּטְעָן עַל הַשִּׁפְחָה וְנִשְׁתַּחְרְרָה עַל הַנָּכְרִית וְנִתְגַּיְּרָה הֲרֵי זֶה לֹא יִשָּׂאֶנָּה. וְכֵן עַכּוּ״‎ם וְעֶבֶד הַבָּא עַל בַּת יִשְׂרָאֵל אַף עַל פִּי שֶׁחָזַר הָעַכּוּ״‎ם וְנִתְגַּיֵּר הָעֶבֶד וְנִשְׁתַּחְרֵר הֲרֵי זֶה לֹא יִשָּׂאֶנָּה. וְכֻלָּן אִם עָבְרוּ וְנָשְׂאוּ אֵין מוֹצִיאִין מִיָּדָם:

15

In all the above instances, if these men had wives and their wives died, or they divorced their wives at their wives' initiative,47 they are permitted to marry [the women mentioned above]; there is no need for hesitation.

Similarly if these women married other men and became widowed or were divorced, they are permitted to marry [the men mentioned above]; there is no need for hesitation.

טו

וְכֻלָּן שֶׁהָיוּ לָהֶם נָשִׁים וּמֵתוּ נְשׁוֹתֵיהֶן אוֹ שֶׁנִּתְגָּרְשׁוּ וְהָיוּ הַנָּשִׁים הֵן שֶׁהִרְגִּילוּ אֶת בַּעֲלֵיהֶן לְגָרְשָׁם הֲרֵי אֵלּוּ מֻתָּרוֹת לְהִנָּשֵׂא לָהֶן לְכַתְּחִלָּה. וְכֵן אִם הָלְכוּ נָשִׁים אֵלּוּ וְנִשְּׂאוּ לַאֲחֵרִים וְנִתְאַלְמְנוּ אוֹ נִתְגָּרְשׁוּ הֲרֵי אֵלּוּ מֻתָּרוֹת לְהִנָּשֵׂא לָהֶן לְכַתְּחִלָּה:

16

All these women are permitted to marry [any relatives of the men involved]. [A woman may marry] the son of the witness who testified on her behalf, the son of the sage who declared that she was forbidden to her husband, the son of the man with whom she was reputed to have had relations, or any other relative of theirs. [The rationale for this leniency is that] a person will not commit a sin so that another person will benefit.

A woman is permitted to marry one of [the two witnesses] to her divorce or to her mi'un, or to marry one of the judges in whose presence she performed the rite of chalitzah. Our suspicions are aroused only when [the woman's license to marry depends on] the testimony of one witness.48

A person should always shy away from serving as a witness to mi'un,49 and make himself available [as a witness to enable] the rite of chalitzah [to be performed].

טז

וְכָל אַחַת מֵהֶן מֻתֶּרֶת לְהִנָּשֵׂא לְבֶן הָעֵד שֶׁהֵעִיד לָהּ. אוֹ לְבֶן הֶחָכָם שֶׁאֲסָרָהּ עַל בַּעְלָהּ. אוֹ לְבֶן הַנִּטְעָן עָלֶיהָ אוֹ לִשְׁאָר קְרוֹבִין. שֶׁאֵין אָדָם חוֹטֵא כְּדֵי שֶׁיֵּהָנֶה אַחֵר. וּמֻתֶּרֶת הָאִשָּׁה לְהִנָּשֵׂא לְאֶחָד מֵעֵדֵי גֵּרוּשֶׁיהָ אוֹ מֵעֵדֵי מֵאוּנֶיהָ. אוֹ לְאֶחָד מִן הַדַּיָּנִים שֶׁחָלְצָה בִּפְנֵיהֶם. שֶׁאֵין חוֹשְׁשִׁין אֶלָּא לְעֵדוּת אֶחָד. וּלְעוֹלָם יִתְרַחֵק אָדָם מֵעֵדוּת מֵאוּן וְיִתְקָרֵב לַחֲלִיצָה:

17

When a man divorces his wife and then engages in relations with her in the the presence of witnesses before she marries another man,50 we assume that since she was [originally] his wife, he remarried her and engaged in relations with the intent of consecrating her, and not as a licentious act.

[The above rule applies] regardless of whether they were divorced after marriage, or only after consecration. And this applies even if we saw that he paid her money.51 For it is an accepted presumption that a person will not enter into sexual relations with his wife with a licentious intent, when he has the possibility of having these relations considered to be a mitzvah.

For this reason, this woman is definitely considered to be consecrated,52 and requires a second divorce [in order to marry another man].

יז

הַמְגָרֵשׁ אֶת אִשְׁתּוֹ וְחָזַר וּבְעָלָהּ בִּפְנֵי עֵדִים קֹדֶם שֶׁתִּנָּשֵׂא לְאַחֵר בֵּין שֶׁגֵּרְשָׁהּ מִן הַנִּשּׂוּאִין בֵּין מִן הָאֵרוּסִין הוֹאִיל וְאִשְׁתּוֹ הָיְתָה הֲרֵי זוֹ בְּחֶזְקַת שֶׁהֶחֱזִירָהּ וּלְשֵׁם קִדּוּשִׁין בָּעַל וְלֹא לְשֵׁם זְנוּת. וַאֲפִלּוּ רָאוּ אוֹתוֹ שֶׁנָּתַן לָהּ מָעוֹת. שֶׁחֲזָקָה הִיא שֶׁאֵין אָדָם עוֹשֶׂה בְּעִילָתוֹ בְּאִשְׁתּוֹ בְּעִילַת זְנוּת וַהֲרֵי בְּיָדוֹ לַעֲשׂוֹתָהּ בְּעִילַת מִצְוָה. לְפִיכָךְ הֲרֵי זוֹ בְּחֶזְקַת מְקֻדֶּשֶׁת קִדּוּשֵׁי וַדַּאי וּצְרִיכָה מִמֶּנּוּ גֵּט שֵׁנִי:

18

[There is an extension to the above principle.] If a man entered into privacy with his divorcee in the presence of witnesses, the two witnesses observed [their conduct] simultaneously,53 and [the couple] had been married previously, we suspect that they engaged in sexual relations.

The witnesses to their entrance into privacy are thus considered to be witnesses to sexual relations. For a person who consecrates his wife via sexual relations need not engage in relations in the presence of witnesses. [All that] is necessary that [the couple] enter into privacy in the presence of witnesses and engage in relations in privacy, as explained.54

Since [it is possible that the couple engaged in relations], the status of the woman is in doubt, because we suspect that she has been consecrated. Because of this suspicion, she requires a [second] get. If, however, the woman had merely been consecrated and was divorced [before she was married], we do not suspect [that they engaged in sexual relations], because they did not share such familiarity.55

יח

נִתְיַחֵד עִמָּהּ בִּפְנֵי עֵדִים וְהוּא שֶׁיִּהְיוּ שְׁנֵי הָעֵדִים כְּאֶחָד. אִם הָיְתָה מְגֹרֶשֶׁת מִן הַנִּשּׂוּאִין חוֹשְׁשִׁין לָהּ שֶׁמָּא נִבְעֲלָה וְהֵן הֵן עֵדֵי יִחוּד הֵן הֵן עֵדֵי בִּיאָה. שֶׁכָּל הַמְקַדֵּשׁ בְּבִיאָה אֵינוֹ צָרִיךְ לִבְעל בִּפְנֵי עֵדִים אֶלָּא יִתְיַחֵד בִּפְנֵיהֶן וְיִבְעל כְּמוֹ שֶׁבֵּאַרְנוּ. לְפִיכָךְ צְרִיכָה גֵּט מִסָּפֵק וַהֲרֵי הִיא סָפֵק מְקֻדֶּשֶׁת. וְאִם הָיְתָה מְגֹרֶשֶׁת מִן הָאֵרוּסִין אֵין חוֹשְׁשִׁין לָהּ שֶׁהֲרֵי אֵין לִבּוֹ גַּס בָּהּ:

19

Several of the geonim have ruled that any woman with whom a man engaged in sexual relations in the presence of witnesses requires a get, [the rationale for their ruling being that] a person will not carry out sexual relations with a licentious intent.

[Moreover,] they extended [the application of] this principle, until they decided to rule that when a man's maidservant bore him a son, we take the matter into account, and the man's wife is not [allowed to perform] the rite of yibbum [if he dies without children],56 lest he have freed his maidservant57 and afterwards engaged in relations with her [with the intent of consecrating her]. And there are those who ruled that we can definitely assume that he freed her [and consecrated her],58 for a man will not carry out sexual relations with a licentious intent.

I considered these opinions to be far from the paths of the Torah judgment, and it is not fit for one to rely on them. Our Sages made such statements only with regard to [a man's] wife whom he divorced, or to a person who consecrated a woman conditionally and then entered into sexual relations without clarifying his intent.59 For in these instances the woman is the man's wife, and with regard to a man's wife we assume that he will not enter into sexual relations with a licentious intent unless he explicitly states that this is his intent, or that he is entering into these relations with a condition in mind.60

With regard to other women, however, [we do not follow this assumption]. Instead, whenever [a man enters into relations with] a wanton woman, we assume that he had a licentious intent,61 unless he explicitly states that he intends to consecrate her. Needless to say, this applies with regard to a maidservant62 or to a gentile woman,63 for our marriage laws do not apply with regard to them at all, and we have no suspicions [with regard to marriage] at all. A son born by them is assumed to be a gentile or a servant until it is definitively substantiated that his mother was freed or converted.

יט

הוֹרוּ מִקְצָת הַגְּאוֹנִים שֶׁכָּל אִשָּׁה שֶׁתִּבָּעֵל בִּפְנֵי עֵדִים צְרִיכָה גֵּט. חֲזָקָה שֶׁאֵין אָדָם עוֹשֶׂה בְּעִילָתוֹ בְּעִילַת זְנוּת. וְהִגְדִּילוּ וְהוֹסִיפוּ בְּדָבָר זֶה שֶׁעָלָה עַל דַּעְתָּם עַד שֶׁהוֹרוּ שֶׁמִּי שֶׁיֵּשׁ לוֹ בֶּן מִשִּׁפְחָתוֹ חוֹשְׁשִׁין לוֹ וְלֹא תִּתְיַבֵּם אִשְׁתּוֹ שֶׁמָּא שִׁחְרֵר שִׁפְחָתוֹ וְאַחַר כָּךְ בָּא עָלֶיהָ. וְיֵשׁ מִי שֶׁהוֹרָה שֶׁוַּדַּאי שִׁחְרְרָהּ שֶׁאֵין אָדָם עוֹשֶׂה בְּעִילָתוֹ בְּעִילַת זְנוּת. וְכָל הַדְּבָרִים הָאֵלֶּה רְחוֹקִים הֵם בְּעֵינַי עַד מְאֹד מִדַּרְכֵי הַהוֹרָאָה וְאֵין רָאוּי לִסְמֹךְ עֲלֵיהֶן. שֶׁלֹּא אָמְרוּ חֲכָמִים חֲזָקָה זוֹ אֶלָּא בְּאִשְׁתּוֹ שֶׁגֵּרְשָׁהּ בִּלְבַד אוֹ בִּמְקַדֵּשׁ עַל תְּנַאי וּבָעַל סְתָם שֶׁהֲרֵי אִשְׁתּוֹ הִיא וּבְאִשְׁתּוֹ הִיא שֶׁחֶזְקָתוֹ שֶׁאֵינוֹ עוֹשֶׂה בְּעִילַת זְנוּת עַד שֶׁיְּפָרֵשׁ שֶׁהִיא בְּעִילַת זְנוּת אוֹ יְפָרֵשׁ שֶׁעַל תְּנַאי הוּא בּוֹעֵל. אֲבָל בִּשְׁאָר הַנָּשִׁים הֲרֵי כָּל זוֹנָה בְּחֶזְקַת שֶׁבָּעַל לְשֵׁם זְנוּת עַד שֶׁיְּפָרֵשׁ כִּי הוּא לְשֵׁם קִדּוּשִׁין. וְאֵין צָרִיךְ לוֹמַר בְּשִׁפְחָה אוֹ כּוּתִית שֶׁאֵינָהּ בַּת קִדּוּשִׁין שֶׁאֵין חוֹשְׁשִׁין לָהֶן כְּלָל. וַהֲרֵי הַבֵּן מֵהֶן בְּחֶזְקַת כּוּתִי וְעֶבֶד עַד שֶׁיִּוָּדַע בְּוַדַּאי שֶׁנִּשְׁתַּחְרְרָה אִמּוֹ אוֹ נִתְגַּיְּרָה:

20

When it has been assumed that a woman is either married or consecrated, and a rumor is spread in [her] city that she has been divorced, [the rumor] is not given credence, and we continue to operate under the assumption [that there was no change in her status].64 [This applies] even if the majority, or even the entire city spread this rumor.

[Different rules apply, however, in the following instance.] A rumor was spread through the city that a woman was consecrated, and that rumor was reported in court, in which case we suspect that the woman was consecrated, as explained.65 Afterwards, a rumor was spread that she was divorced from those kiddushin; we consider her to be divorced.66 [Since] she was forbidden on the basis of a rumor, she is permitted on the basis of a rumor.

כ

מִי שֶׁהֻחְזְקָה אֵשֶׁת אִישׁ בֵּין מִן הַנִּשּׂוּאִין בֵּין מִן הָאֵרוּסִין וְיָצָא שְׁמָהּ בָּעִיר מְגֹרֶשֶׁת. אֲפִלּוּ רֹב הָעִיר אוֹ כֻּלָּהּ מַעֲבִירִין הַקּוֹל שֶׁנִּתְגָּרְשָׁה אֵין חוֹשְׁשִׁין לָהּ וַהֲרֵי הִיא בְּחֶזְקָתָהּ. אֲבָל אִם יָצָא שְׁמָהּ בָּעִיר מְקֻדֶּשֶׁת וְהֻחְזַק הַקּוֹל בְּבֵית דִּין שֶׁהֲרֵי הִיא מְקֻדֶּשֶׁת בְּסָפֵק כְּמוֹ שֶׁבֵּאַרְנוּ וְאַחַר כָּךְ יָצָא עָלֶיהָ קוֹל שֶׁנִּתְגָּרְשָׁה מֵאוֹתָן הַקִּדּוּשִׁין הַקּוֹל אֲסָרָהּ וְהַקּוֹל הִתִּירָהּ וַהֲרֵי זוֹ מְגֹרֶשֶׁת:

21

[A man] should not marry a woman if he intends to divorce her.67 Nor should he maintain her as a wife68 and live with her, if he intends to divorce her.69

A man should not divorce his first wife unless he discovers an incident of sexual misconduct,70, as [Deuteronomy 24:1] states: "When he finds evidence of sexual misconduct...." One should not hurry to divorce one's first wife.71 With regard to a second wife, by contrast, if one hates her, one may send her away.72

כא

לֹא יִשָּׂא אָדָם אִשָּׁה וְדַעְתּוֹ לְגָרְשָׁהּ. וְלֹא תִּהְיֶה יוֹשֶׁבֶת תַּחְתָּיו וּמְשַׁמַּשְׁתּוֹ וְדַעְתּוֹ לְגָרְשָׁהּ. וְלֹא יְגָרֵשׁ אָדָם אִשְׁתּוֹ רִאשׁוֹנָה אֶלָּא אִם כֵּן מָצָא בָּהּ עֶרְוַת דָּבָר שֶׁנֶּאֱמַר (דברים כד א) ״‎כִּי מָצָא בָהּ עֶרְוַת דָּבָר״‎ וְגוֹ'. וְאֵין רָאוּי לוֹ לְמַהֵר לְשַׁלֵּחַ אִשְׁתּוֹ רִאשׁוֹנָה. אֲבָל שְׁנִיָּה אִם שְׂנֵאָהּ יְשַׁלְּחֶנָּה:

22

It is a mitzvah to divorce a woman who possesses unsavory character traits and does not conduct herself modestly73, as is the practice of proper daughters of Israel, as [implied by Proverbs 22:10]: "Drive away the scoffer, and contention will depart."

When a woman has been divorced for loose moral conduct,74 it is not fitting for a proper man to marry her, lest people say: "This one sent away this wicked woman, and this one brought her home."

כב

אִשָּׁה רָעָה בְּדֵעוֹתֶיהָ וְשֶׁאֵינָהּ צְנוּעָה כִּבְנוֹת יִשְׂרָאֵל הַכְּשֵׁרוֹת מִצְוָה לְגָרְשָׁהּ שֶׁנֶּאֱמַר (משלי כב י) ״‎גָּרֵשׁ לֵץ וְיֵצֵא מָדוֹן״‎. וְאִשָּׁה שֶׁנִּתְגָּרְשָׁה מִשּׁוּם פְּרִיצוּת אֵין רָאוּי לְאָדָם כָּשֵׁר שֶׁיִּשָּׂאֶנָּה. שֶׁלֹּא יֹאמְרוּ זֶה הוֹצִיא רְשָׁעָה מִבֵּיתוֹ וְזֶה מַכְנִיסָהּ:

23

When a man's wife becomes a deaf-mute,75 he may divorce her, [by giving her] a get, and the divorce is effective. If, however, [his wife] loses control of her mental or emotional faculties,76 he may not divorce her until she regains stability.

This is a prescript ordained by our Sages so that she will not [be divorced and left] unattended, [and be violated] by immoral people, for she is unable to care for herself. Therefore, [her husband] should provide a place for her, provide her with food and drink from her own resources,77 and marry another woman. He is not obligated to provide her with her sustenance, garments and conjugal rights.78 [For although our Sages compelled the husband to remain married to such a woman, they did not compel him to live with her as man and wife,] because a mentally sound individual cannot endure living with a mentally incapable person in one dwelling.

[The husband] is not obligated to provide her with medical treatment,79 nor to redeem her if she is taken captive. If he divorces her, the divorce is binding.80 He should remove her from his home, and he is not obligated to care for her.

כג

מִי שֶׁנִּתְחָרְשָׁה אִשְׁתּוֹ הֲרֵי זֶה מְגָרְשָׁהּ בְּגֵט וְתִהְיֶה מְגֹרֶשֶׁת. אֲבָל אִם נִשְׁתַּטֵּית אֵינוֹ מוֹצִיאָהּ עַד שֶׁתַּבְרִיא. וְדָבָר זֶה תַּקָּנַת חֲכָמִים הוּא כְּדֵי שֶׁלֹּא תְּהֵא הֶפְקֵר לִפְרוּצִין שֶׁהֲרֵי אֵינָהּ יְכוֹלָה לִשְׁמֹר עַצְמָהּ. לְפִיכָךְ מַנִּיחָהּ וְנוֹשֵׂא אַחֶרֶת וּמַאֲכִילָהּ וּמַשְׁקָהּ מִשֶּׁלָּהּ. וְאֵין מְחַיְּבִין אוֹתוֹ בִּשְׁאֵר כְּסוּת וְעוֹנָה שֶׁאֵין כֹּחַ בְּבֶן דַּעַת לָדוּר עִם הַשּׁוֹטִים בְּבַיִת אֶחָד. וְאֵינוֹ חַיָּב לְרַפְּאוֹתָהּ וְלֹא לִפְדּוֹתָהּ. וְאִם גֵּרְשָׁהּ הֲרֵי זוֹ מְגֹרֶשֶׁת וּמוֹצִיאָהּ מִבֵּיתוֹ וְאֵינוֹ חַיָּב לַחֲזֹר וּלְהִטָּפֵל בָּהּ:

Footnotes
1.

In the Talmud, by contrast, the terms bateil and pasul do not have these specific meanings. There are times when pasul is used to connote a get that is unacceptable according to Scriptural law, and bateil to refer to a get that is unacceptable according to Rabbinic law (Maggid Mishneh). (See also the responsum of the Rambam quoted by the Maggid Mishneh in his gloss on Chapter 8, Halachah 4.)

2.

The Ra'avad differs and maintains that the priest should be forbidden to remain married to a woman he divorced with such a get, lest the impression be created that the prohibition against a priest's marrying a divorcee can be waived. The Shulchan Aruch (Even HaEzer 150:3), however, accepts the Rambam's ruling.

3.

See Chapter 8, Halachah 5.

4.

The Maggid Mishneh explains that the Rambam considers the proof-text that he quotes as an asmachta - i.e., a support from the Torah invented by the Rabbis to uphold their decree. The Maggid Mishneh himself differs, noting that Gittin 82a appears to indicate that the prohibition is of Scriptural origin.

Kin'at Eliyahu explains that the Rambam's conception can be resolved based on his statements in Sefer HaMitzvot (General Principle 2), that any law that is not explicitly stated in the Torah, but rather derived through the Thirteen Principles of Biblical exegesis, is considered to be Rabbinic in origin (midivrei soferim). This classification does not, however, in any way diminish the status of this practice, and it is as though it were explicitly stated in the Torah. (See the commentaries on Hilchot Ishut 1:2.) Similarly, in this instance the prohibition is not explicit in the Torah, but rather derived through exegesis. Thus, it has the status of Scriptural law, but is considered to be Rabbinic in origin.

It must be emphasized that just as the woman is prohibited from remarrying a priest if divorced, she is also prohibited from remaining married to her husband, if he is a priest [Shulchan Aruch (Even HaEzer 150:3)].

5.

I.e., according to Scriptural law, the divorce is binding. Our Sages, however, disqualified the divorce and forbade the woman from remarrying until a get is given that presents no halachic difficulties.

6.

Similarly, if her first husband is a priest, he may no longer become impure while caring for her burial (Hilchot Eivel 2:13).

7.

Since her divorce is effective according to Scriptural law, our Sages did not abrogate her second marriage.

8.

I.e., in these instances, our Sages were unsure whether or not the get is valid according to Scriptural law. Because of the doubt, the woman is not allowed to engage in marital relations with anyone other than her first husband until an acceptable get is given. The first husband can no longer annul her vows, nor does he have the right to inherit her property if she dies in his lifetime.

9.

The Rambam's intent is somewhat questionable. The Maggid Mishneh and the Kessef Mishneh explain that even in this situation, the husband must consecrate his wife a second time.

10.

For the marriage blessings should not be recited if there is a doubt whether they are necessary. Even with regard to a get that was disqualified by Rabbinic law, since the woman should not remarry, the blessings should not be recited (Maggid Mishneh).

11.

The marriage contract states: "When you [may] marry another person, you may collect the sum mentioned within." Since such a woman is not fit to remarry, and she could not collect the money due her by virtue of her original marriage contract, that contract remains in effect (Maggid Mishneh).

12.

Although her second marriage is void, and thus, according to Scriptural law there is no need for a get, our Sages established such a requirement because of the impression that might be created.

13.

When a woman commits adultery, she is forbidden to engage in marital relations both with her husband and with the adulterer (even after being divorced from her husband). In this instance, the woman's second marriage is an adulterous relationship. Therefore, she may not remain married to either of her husbands.

14.

I.e., the abovementioned prohibition stems from Scriptural law. It applies, however, only when the prohibition against adultery was willfully violated. Nevertheless, even when adultery was committed unwittingly, the woman is forbidden to both husbands: to her second husband, because her marriage to her first husband has not been terminated, and to her first husband, because of the Rabbinical decree mentioned by the Rambam.

15.

As explained in Hilchot Ishut 4:9, a deaf-mute's mental capacity is considered insufficient for him to establish a marriage bond. Nevertheless, our Sages ordained that if a deaf-mute man or woman enters into a marriage relationship, that relationship is binding according to Rabbinic law, regardless of whether the mate is also a deaf-mute or is fully mentally competent.

Since a deaf-mute's marriage is not effective according to Torah law, there is room to suppose that the woman should be allowed to remarry her first husband, for the difference between a deaf-mute's marriage and an ordinary marriage is obvious. And conversely, one might assume that since a deaf-mute is not held responsible for his actions, if a woman's second husband were a deaf-mute, they would be allowed to remain married. For these reasons, it is necessary to state that the stringencies apply in these instances as well.

16.

Since the woman did not enter into forbidden marital relations, there is no reason to penalize her (Yevamot 89a).

17.

The second husband is not entitled to the article, because he is not truly her husband. The first husband is not entitled to it because our Sages granted a husband rights to ownerless articles his wife discovers to prevent friction from arising in the home, and in this instance, since he is required to divorce her, there is no need to prevent friction (Yevamot 90b).

18.

A husband is granted the profits from his wife's work in return for providing for her sustenance. Since neither of the husbands is required to provide for her, neither is entitled to this benefit (Ibid.).

19.

The Torah granted a husband the right to annul his wife's vows so that she will remain attractive to him. In this instance, the husband should not be attracted to the wife (Ibid.).

20.

Our Sages explained that the woman should have been entitled to be recompensed for these benefits. Nevertheless, they were withheld from her as a penalty for her actions. The Shulchan Aruch (Even HaEzer 17:56) does rule that the benefits that her second husband received after her first husband returned (or after the get was discovered void) should be returned to her.

21.

Our Sages instituted the requirement of a marriage contract so that a husband would be deterred by the financial burden he would have to bear, and would not consider divorce a light matter. In this instance, however, our Sages desire the divorce. Therefore, they did not impose a financial burden (Yevamot 89a).

22.

It is only when a woman is entitled to the money due her by virtue of her marriage contract that the stipulations apply (Ibid.).

23.

I.e., she is judged as a woman who was divorced because of adultery, who is penalized, as stated in Hilchot Ishut 24:10. She is, however, entitled to take all her property that remains intact [Shulchan Aruch (loc. cit.)].

24.

Property for which the husband takes financial responsibility (Hilchot Ishut 16:1).

25.

For when she received the funds, they were not aware of the prohibition (Jerusalem Talmud, Yevamot 10:1).

26.

As reflected in the following halachot, based on Yevamot 94b, it appears that only when the woman has been merely consecrated is a get required from the second husband. For it is possible for an onlooker to think that perhaps the first kiddushin were given conditionally, and the marriage to the second brother is binding. Lest a misconception arise and one think that a married woman can be released without a get, the second husband is required to give a get.

If she was married to - not merely consecrated by - her first husband, a get is not required from the second husband, because when his brother returns, everyone will realize that his marriage to his brother's wife is not binding. Rabbenu Asher makes a further distinction and states that when the woman was married to - not merely consecrated by - the first brother, she and her first husband may continue living together as man and wife, despite the fact that she erred and performed the rite of yibbum. The Shulchan Aruch (Even HaEzer 159:4) follows the Rambam's ruling, while the Ramah follows that of Rabbenu Asher.

27.

It is forbidden to marry two sisters in each other's lifetime. Once a man's wife dies, however, he may marry her sister. (See also Hilchot Yibbum 3:11.)

28.

The intent is the Hebrew term arayot, a word with a specific meaning. As explained in Hilchot Ishut 1:5, this refers to a woman with whom sexual relations are forbidden and punishable by karet.

29.

E.g., one was unaware of the family connection.

30.

For, as mentioned, a marriage bond cannot be established with one of the arayot.

If the man married the first sister, then there is no possibility of such a misconception arising. A man will never marry a woman conditionally, for if the condition is not fulfilled, their marital relations are considered to be sinful. We assume that a person will not take that risk (Shulchan Aruch, Even HaEzer 15:27). (Note, however, Hilchot Issurei Bi'ah 2:10 and the gloss of the Ra'avad.)

31.

The wording used by the Rambam here is somewhat confusing. For the scribe should give the get to the husband, who should give it to his wife. The intent appears to be, as in the source for this halachah, Gittin 80a, that the scribe gave the man the receipt and the woman the get, and they exchanged them. Thus, the woman was never given the get by her husband.

32.

Indeed, we do not even require that, as a safeguard, the first husband give her the get while she is married to her second husband (Beit Shmuel 151:2).

The Beit Shmuel also states that this law applies even if the woman was merely consecrated by the second husband, but their marriage had not been consummated.

33.

In his Commentary on the Mishnah (Gittin 8:7), the Rambam explains that the husband is acting out of spite, seeking to prevent his divorcee from remarrying. Rashi (Gittin 80a) offers a different rationale.

34.

See Hilchot Ishut 24:16.

35.

This represents the Rambam's interpretation of Gittin 45b, 46b. Other halachic authorities view this situation slightly differently. The various views are listed in the Shulchan Aruch (Even HaEzer 10:3).

36.

I.e., it is as if he gave her the get on the condition that she remain unchaste, and, because of her repentance, that condition was not fulfilled. Most authorities maintain that since this condition was not actually stated, such a complaint would not be heeded by the court. Nevertheless, since the matter might become a subject for gossip, her first husband is bound by these restrictions (Tosafot, Gittin 46a). From one of the Rambam's responsa, however, it appears that he maintains that the get would actually be void in such an instance.

37.

If, however, she was consecrated by another man, even if she was divorced before their marriage was consummated, she may not remarry her first husband and must be divorced by him if they do remarry, as stated in Chapter 11, Halachah 12.

38.

A woman who suffers from physical disorders and lacks female physical characteristics. She is unable to bear children. (See Hilchot Ishut 2:6, 15:7, 24:1.)

39.

See Hilchot Ishut 25:8-9.

40.

See Chapter 7, Halachah 5. If, however, a person brings a get from one place in Eretz Yisrael to another, the permission granted to the woman to remarry does not depend on his statements. Therefore, he is permitted to marry her (Shulchan Aruch, Even HaEzer 12:1).

41.

See Chapter 12, Halachah 15.

42.

I.e., a woman took a vow that caused her to be forbidden to derive benefit from her husband, in which case he is required to divorce her. She asked a sage to annul the vow, but he could not find a halachic basis to do so (Yevamot 25b).

43.

For this would substantiate the initial rumor and make the couple a subject of gossip (Yevamot 24b). On this basis, there are authorities who rule that if the rumor is substantiated - e.g., a couple are openly living together, or were married in a secular court - the woman should be encouraged to convert, and they should be married according to Jewish law.

Indeed, we find a responsum of the Rambam himself regarding a man who had an attractive female servant, and it was rumored that they had spent time together in private. The Rambam advises that the man be compelled to free the servant and either marry her or send her away. He acknowledges that doing so would violate the Rabbinic decree mentioned in this halachah, but states that because of the permissive state of morals prevalent in his society, there is no alternative.

44.

From Yevamot (loc. cit.), it would appear that the reason for this restriction is that people should not say that the man converted in order to marry. This is undesirable. (See Hilchot Issurei Bi'ah 13:14.) With regard to this prohibition as well, it has become customary in the present time to show leniency.

45.

There are opinions that state that if the woman has merely been consecrated, but the marriage bond has not been consummated, the couple should be forced to separate. (See Maggid Mishneh; Beit Shmuel 12:2). There are other opinions, however, that maintain that the consecration is equivalent to the consummation of the marriage. Rav David Arameah cites Hilchot Issurei Bi'ah 21:31 as an indication that the Rambam follows the latter view.

46.

The Maggid Mishneh quotes the Rashba as maintaining that a witness who brought a get and said "It was written and signed in my presence," should be forced to divorce the woman if he marries her. The Shulchan Aruch (Even HaEzer 12:1) quotes the Rambam's ruling. See Chelkat Mechokek 12:1.

47.

The Ramah (Even HaEzer 12:4) writes that if the man's wife was sick at the time that the woman became eligible for marriage, the prohibition remains in effect. For it possible that he was waiting for her to die.

The Chelkat Mechokek 12:2 extends this stringency to include a man and wife whose marriage was known to be plagued by strife. Even if the divorce came at the woman's initiative, it is possible that the man expected it and had planned another alternative.

48.

It is unlikely that two individuals will sin so that one may benefit (Jerusalem Talmud, Yevamot 2:12). The Hagahot Maimoniot, nevertheless, state that "a master of his soul" should avoid such a marriage.

49.

Lest the woman later regret her decision (Yevamot 109b).

50.

If the woman has remarried and divorced, however, the presumption stated does not apply, for it is forbidden for her first husband to remarry her (Beit Shmuel 149:2).

51.

Although this would make it appear more likely that the man was relating to her as a prostitute and not as a wife, it is not sufficient cause for us to negate our presumption (Gittin 73b).

52.

The Beit Shmuel 149:3 interprets this to mean that if another person consecrates her afterwards, we consider it as if he had consecrated a married woman, and he is not required to divorce her.

53.

It is not sufficient for one to have observed them in private at one time, and the other at a different time, for the two witnesses who observe the consecration of a woman must be together at that time.

54.

Hilchot Ishut 3:5; see also Hilchot Ishut 14:16, which states that it is forbidden to engage in sexual relations in the presence of others.

55.

The previous halachah dealt with an instance in which relations were observed; hence, no distinction was made whether the couple was divorced before or after their first marriage was consummated. In this instance, they merely entered into privacy together. If, however, we know for a fact that a couple shared familiarity before the marriage bond was completed, a second get is required (Maggid Mishneh; Shulchan Aruch, Even HaEzer 149:2).

56.

A son borne by a maidservant is not considered to have any connection to his father. These authorities, however, suspect that the woman was freed and then married, and that the child thus shares a connection with his father. According to this opinion, chalitzah is, nevertheless, required.

57.

For until the maidservant is freed, she cannot be married.

58.

These authorities do not even require chalitzah.

59.

See Hilchot Ishut 7:23.

60.

The Radbaz and others state that if the witnesses know that the woman is in the niddah state, we do not assume that the couple entered into relations for the sake of marriage. If they are prepared to violate the prohibition of niddah, we assume that they will have no hesitation to conduct relations outside marriage. [Some modern authorities consider taking this concept even further. Although a man and a woman claim that their intent is "marriage," if they violate the laws of niddah, their conception of marriage is not kedat Moshe viYisrael, "according to the faith of Moses and Israel," and Torah law does not require a divorce. See the responsum of the Rivash cited below.]

61.

The Ra'avad differs with the Rambam on this matter and maintains that if a man is in general known to be moral and observant, we assume that he will not enter into sexual relations with a licentious intent. This applies even if he entered into relations with a maidservant. If, however, the man has a reputation for wanton behavior, this assumption is not applied. The Shulchan Aruch (Even HaEzer 149:5) follows the Rambam's view.

In the law that follows, the Shulchan Aruch explains that if a Jewish man and woman marry according to gentile law, we do not consider them to be man and wife according to Torah law. This ruling is based on a ruling of the Rivash (Responsum 6), which explains that a Jewish marriage must be "according to the faith of Moses and Israel," and a couple who marry according to gentile law, regardless of their desire to live together, are not establishing their union on this foundation.

62.

See Hilchot Nachalot 4:6.

63.

In this instance, the Ra'avad accepts the Rambam's ruling, for it is impossible for a man to compel a woman to convert.

64.

Thus, if her husband was a priest (who may not marry a divorced woman), he may remain married to her. We do not suspect that he divorced her and remarried her. (See Hilchot Issurei Bi'ah 17:20.)

65.

See Hilchot Ishut 9:22.

66.

The Ra'avad differs with the Rambam and interprets Gittin 88b, the source for this halachah, as referring to an instance where there is one rumor that says that the woman was consecrated and then divorced. Although Rashi and others interpret the passage as the Rambam does, the Shulchan Aruch (Even HaEzer 46:7) appears to merge both views into a single understanding.

67.

If the man informs a woman that he intends to divorce her, he may marry her for a brief amount of time (Hilchot Issurei Bi'ah 21:28; Shulchan Aruch, Even HaEzer 119:1).

68.

He did not intend to divorce her originally, made this decision after they married, but lives together with her as husband and wife with the thought of divorcing her in the future.

69.

Children conceived during this time will have severely tainted personalities, as stated in Hilchot Issurei Bi'ah 21:12.

70.

There is somewhat of a difficulty with the Rambam's ruling. The opinion he cites is that of the School of Shammai, as mentioned at the conclusion of the tractate of Gittin. The School of Hillel differs and maintains that if a woman wrongs her husband, even with regard to as insignificant a matter as burning his meal, he may divorce her. Rabbi Akiva goes even further and maintains that even if a person finds a more attractive woman, he may divorce his wife.

Most authorities agree that in this, as in most other instances, the halachah follows the School of Hillel. Why then does the Rambam (and the Shulchan Aruch [Even HaEzer 119:3]) follow the opinion of the School of Shammai?

Among the resolutions offered is that the difference of opinion between the Schools of Shammai and Hillel applies only with regard to a second marriage. With regard to a first marriage, by contrast, even the School of Hillel accepts the School of Shammai's stringency (Beit Yosef, Even HaEzer 119).

Note also the statements of the Ramah, who rules that the prohibition applied only during the Talmudic era, when a woman could be divorced against her will. In the present era, when a woman must willingly accept a divorce, this prohibition does not apply.

71.

See Gittin 90b, which states that whenever a man divorces his first wife, the altar itself cries.

On the surface, the wording used by the Rambam is problematic. First he says that it is forbidden to divorce one's first wife, and then he states that one should not hurry, implying that one may, but that it is ethical not to be impulsive about the matter. The Chelkat Mechokek 119:2 offers two resolutions: a) The prohibition exists only when, as was possible in the Talmudic era, the husband is divorcing his first wife against her will. If she is willing to accept the divorce, there is no prohibition; one should, however, proceed without haste. b) Even when one hears about improper sexual conduct, one should not be hasty about the matter. Instead, the incident should be investigated carefully to determine if in fact any wrongdoing occurred.

72.

Although divorce is undesirable, an unhealthy marriage is even more undesirable, and a marriage should be terminated if there are severe ill feelings between a couple.

73.

The implication is both that she is continually contending with her husband and that she is immodest. In such an instance, it is a mitzvah to divorce her, even if she is a man's first bride (Chelkat Mechokek 119:4).

74.

See Hilchot Ishut 24:12.

75.

This refers to a situation in which a woman married while fully capable and became a deaf-mute while married. Since a deaf-mute is considered to be mentally incapable, such a person is unable to establish a marriage bond that is binding according to Scriptural law. Our Rabbis made certain provisions for the marriage of such individuals, as explained in Hilchot Ishut 4:9. In this instance, however, since the woman was not a deaf-mute at the time of marriage, the marriage is binding according to Scriptural law.

The law teaches us that since according to Scriptural and Talmudic law, a woman can be divorced against her will, the fact that the woman is mentally incapable does not prevent her husband from divorcing her. Since a woman who is a deaf-mute is not totally incapable of caring for herself, our Sages did not make provisions for her, as they did for a woman who becomes mentally unsound.

76.

This also refers to a situation in which the woman lost control of her faculties after marriage. If, however, she was mentally unstable at the outset, any marriage that she enters into is not binding at all (Hilchot Ishut, loc. cit.).

77.

He must, however, put at the woman's disposal the money due her by virtue of her marriage contract and the money due from her dowry (Chelkat Mechokek 119:9).

78.

This ruling does not apply in the Ashkenazic community, nor in other places where the custom is to follow the ban of Rabbenu Gershom not to divorce one's wife against her will. In these communities, the husband is required to provide for his wife's sustenance and garments from his own resources. The rationale is that since he is not able to divorce her - for she is not capable of consenting to the divorce - he remains liable to bear the financial burden of supporting her (Chelkat Mechokek 119:9).

The husband is not, however, obligated to give her conjugal rights. The Bayit Chadash (Even HaEzer 119) and the Chelkat Mechokek 119:12 state that in such a situation, the husband may be granted license to marry a second wife by 100 rabbis.

79.

Even according to the law in Talmudic times, many differ with the Rambam's thesis and maintain that the husband is obligated for his wife's medical expenses.

The Ra'avad protests that in many instances, a person with mental disorders can be rehabilitated, and he maintains that the husband should be required to pay for such treatment. The Beit Shmuel 119:11 states that even the Rambam would agree to such an obligation.

In the Ashkenazic community today, just as a husband is required to supply his wife with her sustenance in such a situation, he is also held liable for all her medical expenses (Ramah, Even HaEzer 119:6, Chelkat Mechokek 119:12).

80.

As the Ra'avad mentions, in an instance when a woman has lost mental competence to the extent that she cannot safeguard the get she was given, all authorities agree that the divorce is not binding. Even when she has that degree of mental competence, there are many authorities that maintain that the divorce is not effective. The Shulchan Aruch (Even HaEzer 119:6) quotes the Rambam's view, as interpreted by the Ra'avad. The Ramah follows the more stringent views.

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The Mishneh Torah was the Rambam's (Rabbi Moses ben Maimon) magnum opus, a work spanning hundreds of chapters and describing all of the laws mentioned in the Torah. To this day it is the only work that details all of Jewish observance, including those laws which are only applicable when the Holy Temple is in place. Participating in one of the annual study cycles of these laws (3 chapters/day, 1 chapter/day, or Sefer Hamitzvot) is a way we can play a small but essential part in rebuilding the final Temple.
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