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Kidushin, 65

1) A MAN WHO DENIES MARRYING A WOMAN, BUT GIVES HER A GET

QUESTION: The Mishnah states that when a woman says to a man, "You were Mekadesh me," and the man denies it, she is prohibited to his relatives, and he is permitted to her relatives. She may not marry *anyone*, though, until she receives a Get from the man she claims to have married her. Rav says that "we force" him, and Shmuel says that "we request of him" to give her a Get. The Gemara concludes that everyone agrees that we may only request from the man to give her a Get, since giving her a Get makes him prohibited to her relatives. Rav, when he says that "we force" him, is not referring to the giving of the Get, but is referring to the Kesuvah -- once he gives a Get to the woman voluntarily, then we may force him to give her a Kesuvah as well, since, by giving her a Get, he "admits" that he married her.

The Mishnah states that since the man says explicitly that he was not Mekadesh this woman, he is permitted to marry her close relatives. Why, then, when he gives a Get to the woman who claims to be his wife, does he suddenly become prohibited to marry her relatives? He has not changed his position at all, for he still claims that he never married her!

ANSWER:

(a) The TAZ (EH 46:2) explains that the prohibition to marry her relatives after he gives a Get to her is not the same type of prohibition discussed in the Mishnah. The Isur of the Mishnah is an Isur mid'Oraisa, based upon the principle of "Shavyei a'Nafshei Chatichah d'Isura" (see Rashi on the Mishnah). The Isur that exists after he gives a Get is a Takanah d'Rabanan which the Rabanan enacted because people who see him giving her a Get will assume that they were actually married and that the Get is a real divorce. If we permit the man to marry one of her relatives, people might mistakenly think that in all cases of a Get, the man is permitted to marry the relatives of his former wife. In order to prevent such an error from occurring, the Rabanan enacted an Isur d'Rabanan prohibiting this man from marrying the woman's relatives.

(b) The BEIS SHMUEL (EH 46:3) offers a different explanation. When a man gives a Get to his wife, he is, in effect, making a statement that whatever is written in the Get is true. Therefore, in our case, even though the man has not openly retracted his claim that he never married this woman, when he gives her a Get we must assume that he is retracting his original claim and now agrees that she was his wife, as is stated in the Get.

The Beis Shmuel bases his explanation on a ruling of the REMA. The REMA (EH 46) maintains that this Halachah -- that a man who gives a Get to a woman becomes prohibited to her relatives even though he claimed that he never married her -- applies only to the man and not to the woman. That is, the man originally claimed that he did not marry her, and now he agrees to give the woman a Get in order to free her from the state of Isur which she created for herself ("Shavyei a'Nafshah") by claiming that she accepted Kidushin from him. Giving the Get makes the man prohibited to the woman's relatives (and the woman is, of course, prohibited to the man's relatives because of her claim that she was married to him).

However, in the opposite situation, this Halachah does not apply. When the *man* claims that he married the woman, and the woman claims that she never received Kidushin from him, and yet she accepts a Get from him in order to clear herself of any "Kol" (rumor) that she is married to him, she does *not* become prohibited to his relatives.

What is the difference between this case and the case where the man claims that he never married her and yet he agrees to give her a Get?

The Beis Shmuel explains the difference as follows. The man is the one who plays the active role in the giving of a Get. Mid'Oraisa, a man may give a Get against the will of the woman. When a man gives a Get, he is effectively making a statement saying that everything written in the Get is true. Hence, the man becomes prohibited to the woman's relatives, because -- by giving a Get -- he is agreeing to the fact that he was married to her. In contrast, the woman plays a passive role in the Gerushin procedure. Moreover, a Get can be given to her against her will. Therefore, for the woman, the fact that she receives a Get is not a statement on her behalf that she accepts as true everything written in the Get, and so she remains permitted to marry his relatives!

65b

QUESTION: Beis Shamai and Beis Hillel argue concerning a case of a man who divorced his wife and then secluded himself with her. Beis Shamai says that no new Get is necessary, for we do not assume that the man lived with his former wife with intention to be Mekadesh her again. Beis Hillel says that a new Get must be given, since we assume that the man lived with his former wife with intention to be Mekadesh her again. The Gemara concludes that the Machlokes involves a case where there are witnesses who saw them seclude themselves with each other, but there are no witnesses who saw the act of Bi'ah. Beis Shamai maintains that the testimony of the witnesses who saw the seclusion, Yichud, does not qualify as testimony that there was Bi'ah. Beis Hillel maintains that the testimony of the witnesses who saw the Yichud *does* qualify as testimony that there was Bi'ah ("Hen Hen Edei Yichud, Hen Hen Edei Bi'ah").

However, according to Beis Hillel, even if we assume that since there was Yichud there was also Bi'ah, why does that presumed act of Bi'ah constitute a valid Kidushin? Perhaps the man intended to commit Z'nus with his former wife, and not to do an act of Kidushin! (See RASHI, DH Amrinan Hen Hen.)

ANSWER: The RITVA explains that since the man was once legally married to the woman, we assume that he would not commit an act of Z'nus with her, but would rather continue to have relations with her legally.

In contrast, if a man is found to have secluded himself with a Penuyah (a woman who was never married), then we do not say that the presumed act of Bi'ah was done for the sake of Kidushin, but rather that it was done for Z'nus, and the woman does not need a Get from the man in order to marry someone else.

HALACHAH: The issue of whether a man has intention for Kidushin or intention for Z'nus when he has relations with a woman to whom he is not married has important practical ramifications today, particularly with regard to civil marriages. Contemporary authorities discuss the Halachic status of a civil marriage. Needless to say, the actual "marriage" itself is meaningless since it is not a Halachic procedure and does not create Kidushin. However, after the civil procedure is performed, when people see the man and woman living together, they might constitute "Edei Yichud," and, if so, the principle of "Hen Hen Edei Yichud, Hen Hen Edei Bi'ah" would apply, Consequently, it is assumed that the man and woman had marital relations. Since we know that the intentions of the man and the woman are to live together as husband and wife (since they performed a civil marriage ceremony), perhaps this is sufficient grounds to assume that the Bi'ah was done "l'Shem Kidushin," for the sake of Kidushin.

The consequences of this question can be very serious. If the man and woman later decide to get divorced through a civil procedure (without a proper Get), and the woman remarries someone else, the children from the second marriage would be Mamzerim since she is still married (due to the Bi'ah l'Shem Kidushin) to the first man!

Ha'Rav Eliyahu Henkin zt'l maintained that the Yichud that occurs subsequent to a civil marriage *does* create Kidushin. According to his ruling, all children born to the woman from a second marriage after she was divorced from her husband through a civil procedure are Mamzerim.

Ha'Rav Moshe Feinstein zt'l ruled leniently on the matter. His leniency was based on a number of proofs that show that a person who is suspected to transgress Isurei d'Oraisa is also suspected to commit Z'nus. Even though the man and woman expressed interested in being "married," the does not mean that they were interested in the actual concept of marriage that exists through Kidushin. The obligations and responsibilities (Shi'abudim and His'chayevus) that are created through Kidushin are not part of the world's concept of marriage. Since we cannot clarify the man's intention, and since such persons are suspected of Be'ilas Z'nus, we cannot assume that any Kidushin took effect. (See IGROS MOSHE EH I:74, II:19.)