Remarriage

RRR 163-167

Woman Returning to Her First Husband

A woman was married and had children. Then her husband divorced her. She subsequently married a second husband from whom she was divorced. Now a son by her first husband died and their mutual sor row brought the first husband and his former wife together. They want to be remarried. Is there any way in which this is permissible by our Reform in terpretation of Jewish law? (From Rabbi David Sherman, Cape Town, South Africa)

There are a number of situations in the traditional law of marriage as developed from the Bible in the Talmud and the Codes which no longer seem just according to our modern ethical standards. Most of these divergences between tradition and modern feeling concern the superior right of the male over the female. It certainly seems wrong to us, in spite of what the law says, that a husband can divorce a wife but that a wife cannot divorce a husband; that a man may marry his deceased wife’s sister but a woman may not marry her deceased husband’s brother; that a man may marry his niece but a woman may not marry her nephew. Some of these instances of the superior right of the male have been mitigated by Jewish law itself; as for example, the decree of Rabbenu Gershom, of the tenth century, forbidding (in Ashkenazic Jewry) a husband to marry more than one wife, or forbidding a husband to divorce his wife without her consent.

Some more of these discrepancies have been mitigated by Reform Jewish practice. In some Reform communities, the congregation establishes a court which gives the woman divorce rights equal to those of the man (as in the West London synagogue). In most of the congregations of America, the decision of the civil courts granting a divorce is accepted and the woman is remarried without needing to procure a divorce from her husband by Jewish law.

Now, the question which you present is not one in which a husband has greater rights than a wife. Nevertheless, it is definitely one in which our modern ethical standards do not comport with the older law. Of course, we should always be cautious about abolishing or disregarding an old law, especially in questions of marriage. Yet, if there is some way in which we can do what, according to our conscience, is justice, we should do it whenever we can. Let us, therefore, look into the old law and see its reason and its extent.

The law is based on Deuteronomy 24 : 1-4 (see also Jeremiah 3 : 1) in which it is said that if a woman was divorced by a husband and marries a second man, and the second man either divorces her or dies, the first husband cannot take her back as wife “since she has been defiled.”

The Biblical law as it stands, and the explanation given for it, is difficult. The reason, “since she has been defiled,” seems a curious one. What defilement is there in the woman being legally married to a second husband? Nachmanides, therefore, feels the necessity of giving an explanation which is not found in Scripture. He says that the purpose of the law is to prevent exchange of wives, i.e., two men each divorcing their wives so that there may be an exchange, and then later remarrying them. Obadiah Sforno (ad loc.) gives an analogous explanation. He says it was for the purpose of preventing men from lending their wives for a while to other men. If these are the only reasons given by those two great Biblical commentators, then we must say that the reason is hardly a realistic one. The Biblical explanation, “since she has been defiled,” is not explained thereby. As a matter of fact, the later law makes the Biblical explanation even more difficult. If “defile-ment” is the reason, then how can we explain the additional law, that if the woman who has been divorced by her first husband does not remarry another man but instead becomes adulterous, the adulterous divorced woman may be remarried to her first husband. (See Even Hoezer 10 : 1, and Maimonides, Yad, “Gerushim” XI: 13.) Surely the adultery is more of a defilement than a legal remarriage. But the explanation given is a forced stress of the word “and she shall be” (v’hoysoh) in Deuteronomy 24 : 2 (cf. Sifre to the passage). They say that that means “she shall be” legally married to the second husband; but if she is merely adulterous with the second man, she is not considered defiled. Surely, such a distinction can hardly have meaning for us.

An interesting variation of this anomalous situation (that a man may take back his adulterous divorcee, but may not take her back if she is divorced again after having been legally married to another man) is found in the Responsa of Meir of Padua, early sixteenth century (19), namely, that if the woman was not legally married to the first husband, but was merely his concubine, and then she married a second man and was divorced from him, the first man is not forbidden to marry her after she is divorced from the second man. In other words, the prohibition exists only when her relationships to the two men were legal and moral, but not if they were quasi-legal or even immoral.

Moreover, this law, so curiously and unacceptably interpreted (i.e., that adultery is no bar, but legal remarriage is a bar) is really not so firm a law as it seems. For what would happen if the first husband, in spite of the Biblical and Talmudic prohibition, does take her back after the divorce from the second husband? He is compelled to send her away. But suppose he does not send her away and the reunited couple has children? What is the status of such children? The law is clear that if they have children, the children are kosher in every way. See Alfasi to the passage corresponding to the Talmud, Yevamoth 11 b , and Joseph Chabib (“Nimukey Yoseph” to the passage in Alfasi). This decision of Alfasi is cited as law by Isaac Lamperonti in “Pachad Yitzchok,” s.v. “Gerusha im Nisez,” p. 72c.

The law, then, so very difficult for the scholars of the past to explain logically, hardly harmonizes with our moral standards. We cannot accept the view that a second marriage is a permanent bar to remarrying the first husband whereas adultery or concubinage is not a bar at all.

Now in the face of this strange law, we are confronted with a human situation. Two older people, reunited by sorrow, desire to re-establish their married life. How can we possibly say to the woman: If you had only not been legally married to your second husband, but had been adulterous, you could now go back to your first husband; but since you were a legal wife to your second husband, you cannot go back to your first husband. This is clearly one of the cases in which we must mitigate the law. As Rabbenu Gershom did in the case of polygamy and divorce, as modern Reform Judaism has done in a number of other cases, we must make every effort to allow this couple to be reunited.

Since what stands in the way is a technical legalism, we must first see if there is not a technical way out. Was this woman divorced from the first husband by means of an unquestionable legal Jewish get? If she was divorced merely in the civil courts, then even according to Jewish law her relationship to the second man was not legal marriage and therefore she may without question return to her first husband. But aside from this technicality, even if her marriage with her first husband was ended by a valid Jewish get, then even so, justice and our moral standards should permit us to remarry her to her first husband. Of course, such remarriages should not occur indiscriminately, since the law is there in the Shulchan Aruch. But whenever the human situation especially requires it, we should be frank enough and brave enough to be humane and just. This, I am sure, is the practice in most Reform congregations. The very fact that the question has rarely, if ever, come up indicates that Reform congregations follow, in this regard, the spirit of justice and mercy, rather than the technicality of the law itself.

NRR 193-197

REMARRIAGE OF RUSSIAN IMMIGRANTS

QUESTION:

Almost all of the married Russian immigrants nowadays were married in the Soviet-style civil ceremony. An Orthodox colleague suggested that the immigrant couples should be remarried with Jewish marriage. Is this necessary? (Asked by Rabbi Richard A. Zionts, Shreveport, Louisiana.)

ANSWER:

SADLY ENOUGH, this is not a new question. It came up frequently and grievously after the fifteenth century, when Marranos kept escaping from Spain and Portugal into Jewish communities. These Marranos had been married as ostensible Christians in the church by a priest.

When they escaped, the question of the Jewish legitimacy of their marriages came up in a tragic form. Generally Marrano couples did not escape together and by the same route. For safety’s sake they escaped separately by different routes. So it would happen that a wife would safely reach a Jewish community and the husband would be lost and never appear. The woman, then, was an agunah and could never marry anyone else.

There was a strong humane tendency on the part of the rabbinate to declare the Marrano church marriages null and void so that the woman need not remain an agunah. The classic responsum on this matter, and in the circumstances just outlined above, was by Isaac bar Sheshes in Algiers, in his responsum # 6. On the basis of this responsum, Joseph Caro, in the Shulchan Aruch, Even Hoezer 149:6, says that the marriage of two apostates has no Jewish validity, and Isserles to Even Hoezer 26:1 makes virtually the same decision. However, even in the early decisions with regard to the Marranos, there were some doubts as to this negative decision. It might have been, for example, that before going to church, the Marrano couple had met privately and a ring was given and the proper words were recited. Also, if there were Jewish witnesses present, that too would count toward making the marriage Jewishly valid.

It is relevant to the present question that Isaac bar Sheshes, whose responsum is the source of the decision that the Marrano church marriage had no Jewish validity, gives two main reasons for his opinion. First, the couple made no attempt to have some sort of Jewish marriage but seemed completely content with the church marriage; hence, he said, it is clear that it was not their intention to have marriage in the Jewish sense kiddushin. Second, there were no witnesses to the fact that the couple lived together as man and wife. Had there been such Jewish witnesses, he says, then the marriage could have been considered valid on that basis alone ( ayday yichud).

Applying these two arguments to the situation of the Russian immigrants, we must say, first of all, that we do not know that they were quite content with the Soviet-style civil marriage. It well may be that they would have preferred to have a Jewish religious type of marriage. This preference has bearing on the Jewish validity of their marriage because it would indicate an intention that the relationship should be truly a marriage, and such an intention counts toward according the relationship Jewish validity. Secondly, it well may be that even if they were married only in the Soviet registry office, they lived together in the presence of other Jews as man and wife. That fact, too, would tend to give Jewish validity to their marriage.

In modern times this question has come up very frequently. There are no Marranos forced into another religion to save their lives, but there is a widespread availability in the western lands of civil marriage. Very many Jews are married by a judge or a justice of the peace. The old question, therefore, comes up again. Are these civil marriages, which are without Jewish religious ritual, to be considered valid marriages by the Jewish religion? The reason for the widespread discussion of this question is basically the same as it was with the Marranos. It is a question of Jewish divorce, the get. If, as often happens, an ex-husband is no longer available to give a get, the woman remains an agunah and cannot remarry Jewishly.

Therefore, there is a tendency among some authorities to find ways of considering the civil marriage invalid Jewishly so that the woman may not need a get and so can remarry. But since civil marriages are now widespread, it is an extremely delicate matter to declare the marriages of tens of thousands of Jews invalid. Therefore, there is uncertainty among the scholars.

The well-known authority Joseph Henkin, in his Prushey Ibra, accepts the validity of civil marriages. After all, a ring is exchanged, words of marriage are spoken, and generally the couple lives in a Jewish community, where they are known as man and wife. The one authority who is inclined to invalidate civil marriages is Moses Feinstein, but he is always strict. In the case of the unavailability of a get, he declared marriages by a Reform rabbi null and void. So it is not surprising that for the sake of an agunah and in general, he would consider non-Orthodox weddings invalid. However, he is aware that the subject is debatable, as can be seen by the very fact of how often he discusses it in the various volumes of Igros Moshe. And even he, strict as he is, will admit the validity of a civil marriage under certain special circumstances which have direct bearing on the question asked. In his responsum # 7 5, he speaks of a couple who married in court but have frequently lived together in a Jewish environment, so there are “kosher” Jewish witnesses who know them as man and wife. This would make the marriage valid. So he concludes that such marriage is valid enough to require a get, though he would be willing to invalidate even this marriage in order to rescue an agunah.

Now directly as to the Russian immigrants, they are not apostates to another religion, whose marriages Joseph Caro and Isserles would declare invalid. They were simply required to go through civil marriage. It was not their choice. They considered this a marriage, and they meant it to be valid marriage, not an adulterous relationship. Furthermore, if at that civil marriage, the man gave the woman a ring and said words indicating marriage, that fulfills the need for Jewish marriage, which requires “he must give and he must say . . .” Besides, there may well have been Jewish witnesses at the ceremony, and moreover, most of them lived in a Jewish community, and there certainly may have been secretly observing Jews there, who knew them as married. All this is enough to make their marriage valid as Jewish marriage.

To require them to be remarried is to tell them thereby that the Jewish community which now welcomes them, considers that they have been living together without legal marriage. Such an attitude would be completely unjustified in light of the reasons given above for accepting their marriage as Jewishly valid.

Furthermore, we have now, in every modern Jewish community, a considerable number of couples who have been united only by civil marriage just as the Russian immigrants have. Will we undertake to say that all of these also are not living in valid marriage? Of course, if any of the Russian immigrants, of their own accord, were to ask for a Jewish ceremony, that might be allowed them, but even in this regard, we should hesitate because it would imply that they were not validly married hitherto. We might conduct such an occasional religious marriage, but certainly not require it as essential.

NRR 198-201

REMARRIAGE OF A WIDOWER

QUESTION:

According to the Halachah, how soon may a widower remarry? (Asked by Rabbi Roland Gittelsohn, Boston, Massachusetts.)

ANSWER:

THE SOURCE of the law is the Talmud (Moed Katan 23a), where it is stated that a widower may not remarry until the three festivals (Passover, Shavuos, Succos) have passed. In other words, he must wait virtually a whole year. The reason for this rather long delay in the permission to remarry is given by the Tosfos to the passage in Moed Katan. The man should be given time for thoughts of his first wife to fade from his memory. He should not marry one woman while his heart is still full of memories of another woman. The Tosfos uses the frequently employed phrase: that there should not be two different moods in the same bed, “shtay dayos b’mito. ” Asher ben Yechiel, in his notes to the Talmud passage, refers to the same emotional problem in a somewhat different way. He cites the opinion that if the widower will have the joy of the three happy festivals without his deceased wife by his side, she will then tend to fade from his mind.

The passage in the Talmud referred to above adds the following—if the widower has not fulfilled the duty of having children (which means at least a son and a daughter) or if his deceased wife left him with little children who need to be taken care of, then he may remarry at once. In this case, “at once” means he may have the marriage ceremony after the seven days have ended, but he must wait until after the thirty days of mourning before they have conjugal relations.

This law as stated in the Talmud is given in almost the identical words in the Shulchan Aruch, Yore Deah 392:2. However there Isserles adds that the custom has developed that the widower may remarry earlier than the passing of three festivals. This statement of Isserles, that the custom has developed that the widower need not wait for the passing of the three festivals, indicates that the custom must have been based on the opinion of various earlier scholars who sought to bring about a relaxation of the three-festival requirement. So it has been indeed. For example, the post-Talmudic treatise on mourning, Semachos (7:15), repeats the Talmudic relaxation that if there are no children, or if he has only small children, the widower may remarry at once, i.e., after thirty days. The Shach (Sifse Cohen) to the Shulchan Aruch cites the early Halachic booklet Aguda to the effect that Yom Kippur and Rosh Hashonah may be counted as two of the festivals. This would, of course, greatly reduce the time of waiting. For example, if the wife died before Rosh Hashonah and Yom Kippur, the widower could remarry immediately after Succos. Also, Ezekiel Landau, in his Shulchan Aruch commentary Dagul Mirvovo, says that one may count Shemini Atzeres as a festival for this purpose. Another of the many indications of a steady tendency toward leniency is the opinion of Jekuthiel Teitelbaum in his Avne Zedek {Even Hoezer # 18) . He speaks of a young widower who was hesitant about remarrying before the three festivals had passed. His father, however, wanted him to remarry sooner. In that case, Teitelbaum decided that the duty of “honor thy father” supersedes the duty of the three festivals and he should obey his father and marry sooner.

Asher ben Yechiel, in his commentary to the Talmud passage, cites an additional personal reason why the widower need not wait. It is not only if he has had no children or if he has small children that need to be taken care of, but also if he has no one to take care of him. Asher ben Yechiel gets this from the Yerushalmi, Yevamos 4:6b. The post-Talmudic book Semachos adds an incident from the life of Rabbi Tarfon (this is also taken from the Yerushalmi, ibid.). The Babylonian Talmud in Moed Katan 23a gives the same anecdote as happening to Joseph the Priest. Rabbi Tarfon, as soon as his wife died, said to his wife’s sister, “Come and take care of your sister’s little children,” which was a proposal of marriage to her, but they did not have conjugal relations until thirty days had passed. The Babylonian Talmud, reporting this same incident about Joseph the Priest, said that he actually made his proposal to his wife’s sister at the cemetery. All of which, in essence, sums up the clearly permissive tendency of the law.

There are, however, some cautionary opinions also. Moses Sofer in his responsa (Yore Deah 351) says that if the deceased wife’s sister is to be the widower’s second wife, he must not have the wedding ceremony within the thirty days (a ceremony which would be permitted if he had no children) because she also is in mourning for his first wife, who was her sister. Also, Baruch Teomim Frankel, in his commentary Imre Baruch to the Shulchan Aruch, says that if the marriage is as early as a month after the bereavement, there should be a minimum of dancing and festivities.

Yet for all these cautionary statements, one may say that the Halachah, as it has developed, has managed virtually to abolish the three-festival requirement, either because of the man’s need to take care of his children, etc., or by counting in other festivals besides the three main ones in order to shorten the waiting period. As Isserles indicates, the custom of early marriage has virtually abolished the law of the three-festival wait. But Isserles adds that a sensitive man should perhaps be hesitant in this matter.