Marital Relations After Divorce (Column 512)

With God’s help

Disclaimer: This post was translated from Hebrew using AI (ChatGPT 5 Thinking), so there may be inaccuracies or nuances lost. If something seems unclear, please refer to the Hebrew original or contact us for clarification.

A few weeks ago I saw a very concise ruling by Rabbi Sherlow regarding the status of a couple who had marital relations after divorce. I thought it appropriate to look at this ruling from a broader, more critical perspective, since it serves as a paradigm for many similar rulings.

The Question and the Answer

A woman turns to him about a partner who is divorced and had relations with his ex-wife after their divorce:

Greetings and blessings.

I started dating a divorced man and discovered that he had relations with his ex-wife after their divorce. To the best of my understanding, this renders them married. I spoke with him about it, but as far as he is concerned he is divorced and will not go back to the Rabbinate to receive another get (writ of divorce). What should be done in such a case, and am I stumbling and causing a man who is considered married to stumble? I myself am divorced and want to start a clean chapter in my life.

Her question is whether she may marry him without his giving another get to his first wife. The partner refuses, arguing that he is divorced and therefore may marry her without a get.

Rabbi Sherlow replied briefly:

Greetings and blessings,

An early Mishnah established that if a divorced man and woman return to marital relations—they are obligated to give a (second) get. It is painful, but you cannot build a home with him without a new get.

All the best and joy,

I found a similar response of his here.

The Source of the Ruling

At first glance this is a clear case, since we are dealing with an explicit Mishnah. Its source is Mishnah Gittin 81a:

“One who divorces his wife and she lodges with him at an inn—Beit Shammai say she does not require a second get from him, and Beit Hillel say she does require a second get from him. When is this? When she was divorced from marriage; but they agree that if she was divorced from betrothal, she does not require a second get from him, because his heart is not familiar with her.”

If a man divorced his wife but they spent the night together in the same room, Beit Hillel assume they likely had relations for the sake of betrothal, whereas Beit Shammai think not. To clarify: Beit Hillel are not saying that the original divorce is void. The original divorce stands, but the assumption is that there was a new betrothal, and this husband effectively took back his divorcee by betrothal through intercourse.

In practice, of course, we rule like Beit Hillel. Thus Maimonides (Rambam), Laws of Marriage 10:18, writes:

“If he secluded himself with her before witnesses—provided that the two witnesses were together—if she had been divorced from marriage, we are concerned that intercourse may have occurred, and the witnesses to seclusion are [considered as] the witnesses to intercourse. For anyone who betroths by intercourse need not have the act before witnesses; rather, he secludes himself in their presence and has intercourse, as we have explained. Therefore, she requires a get out of doubt, and she is doubtfully betrothed. But if she had been divorced from betrothal, we are not concerned, for his heart is not familiar with her.”

For him this is only a get out of doubt, since it is not certain that intercourse actually took place, and even if it did, it is not certain it was intended as betrothal. Beyond that, it is unclear whether we are dealing with a case where the husband and wife admit to having had relations, whether there were witnesses to seclusion, and what the couple say about their intention (for betrothal or not). This is also how it is ruled in Shulchan Aruch, Even HaEzer 149:2.

Two Problems

However, the Magid Mishneh there writes:

“There (81) is the Mishnah: ‘One who divorces his wife and she lodges with him at an inn—Beit Shammai say…,’ and we hold like Beit Hillel in the Mishnah that even if they did not see intercourse we are concerned, and so was ruled in the halakhot. And our master wrote: ‘Provided that there are two witnesses together’—this is obvious, and so it is explicit in the Tosefta: ‘One [witness] in the morning and one in the evening—this was the incident, and they said: She does not require a second get from him.’ And the Rashba wrote: It is reasonable [to say] that this is where he saw the witnesses, but if two saw him from a window and they see him while he does not see them, she does not require a second get from him, for a person knows that one who betroths between himself and herself is not betrothed, even if both admit; therefore, when he had intercourse it was not for the sake of betrothal but merely licentious intercourse.”

He explains that two witnesses to seclusion are required; otherwise, even if we are certain he had intercourse with intent to betroth, at most there were betrothals between the two of them without witnesses. That is not a valid betrothal. In our case, the man says he had relations with his first wife, but the question does not report that there were valid witnesses to seclusion who observed them simultaneously (i.e., not split testimony). Without this there is no concern of betrothal. Therefore, it would seem there is no reason to require him to give a second get, and he may marry her.

But let us assume, at least for the sake of discussion, that there were valid witnesses to seclusion who saw them together. I still do not see on what basis Rabbi Sherlow assumes that their intention at the time of relations was for the sake of betrothal. We should remember that today it is not customary to betroth by intercourse, and in fact the Sages already banned this in the Talmud. It is therefore highly doubtful that the couple’s intent in intercourse was truly for betrothal. Beyond this, recall that the premise of this law is that a respectable person does not have promiscuous intercourse; therefore, if he had relations with her, it was presumably for betrothal. But today we do not betroth by intercourse, and the Sages forbade it and denounced one who does so; it follows that such a person is not particular about the framework of his relations. It is quite doubtful we can presume that if he has intercourse with a woman his intent is betrothal rather than promiscuity. On the contrary: precisely because he is familiar with her (she had been his wife), it is more reasonable that he merely wished to have relations with her outside of marriage.

Remember that the Mishnah itself, and the later decisors following it, distinguish between a divorcee from betrothal and from marriage. With a divorcee from betrothal, whose heart is not familiar with her, we doubt whether he had relations at all. From this one may infer that we are dealing with an assessment of the parties’ intentions; if it is clear to us that their intention was not betrothal, or that relations did not take place, the concern for betrothal does not apply. In my understanding, that is the situation in our case.

A Broader Perspective

Why is this a matter of broader significance? Because at first glance the ruling I propose stands in direct contradiction to the Talmud. May a judge or decisor today go head-on against the Talmud? After all, the Mishnah says that if they secluded themselves there is a concern he betrothed her anew, whereas my claim is that in the described circumstances and in our times this concern is not meaningful.

But this is a factual determination, not a halakhic one. We are dealing with assessments of what the couple did and of their intentions. True, this is not a fact accessible to direct observation, and it is doubtful whether their own statements carry evidentiary weight; still, presumptions (chazakot) were created precisely for such doubtful situations. If I do not know what happened, I follow what reasonable people would do in such a case and my assessment of their intent. “A judge has only what his eyes see.”

Such assessments (what people do and what they intend) are neither halakhic in nature nor universal constants. They can certainly change according to people, circumstances, and prevailing norms, and there is no reason in the world to cling to Talmudic rulings when what is at issue is the assessment of reality or intention. Therefore, even if we rule that in the circumstances before us it is unlikely there was intent to betroth, this is not a deviation from the Talmud’s ruling but rather an application of Talmudic law to a different reality. See a detailed discussion of this in Column 475 and the subsequent columns, where I termed this approach “midrashic conservatism.” Beyond this, at the conceptual level authority does not pertain to factual claims at all. One cannot say a fact is true because an authority said so—that is an oxymoron; hence there is no need to “justify” why we did not deviate from the Talmud. Even if this were a deviation, there would be nothing wrong with it.

Incidentally, I checked online and found a decision of a rabbinical court that states this explicitly (see a summary here). They also cite decisors who require that the couple return to living together for some time (apparently only when there are no witnesses to seclusion, such that the publicity of their living together substitutes for witnesses to betrothal) and that they observe the laws of family purity and halakha. Without this there is no real concern for betrothal, and the presumption that a person does not have promiscuous intercourse does not apply. This teaches us that the courts and their serving judges are not always more conservative than decisors considered “liberal.”

Applications

To conclude, we should treat all Talmudic and halakhic assessments of reality in this way. There are situations in which courts and decisors are very reluctant to implement the approach of midrashic conservatism, due to a mistaken feeling that this entails a “Reform-style” deviation from the Talmud. Take for example (see Column 147 and my article here) the presumption “tav le-meitav tan du”—that a woman prefers any partnership, whatever the price. On its basis, the Sages and most decisors do not apply the doctrine of a contract entered into in error (mekach ta’ut) to betrothal, even if it emerges that the husband is abusive, not sane, fled abroad, etc. It is important to understand that, in terms of contract law—both in halakha and generally—if it emerges that we are dealing with a situation to which one would not have consented had it been known in advance, then that is consent obtained in error and the contract is void. The assumption that a woman is content with any partnership effectively cancels the possibility of applying mekach ta’ut to betrothal, since the assumption is that she would have consented in any case. Applying mekach ta’ut can save agunot and women denied a get (though it is not possible in every case).

It is crucial to understand that the “tav le-meitav” presumption, like any halakhic presumption, is merely an assessment of reality. It is a factual claim—not a law or a norm from Sinai or subject to the authority of the Sages of the Talmud or the Sanhedrin. An assessment of reality is valid so long as it is accurate to the reality at hand. If the reality has changed, there is no impediment to changing this halakhic application, and there is no deviation from the Talmud. And as noted, even if there were a deviation, there would be no problem. Nonetheless, courts are very reluctant to apply mekach ta’ut to betrothal, and the “tav le-meitav” presumption has acquired the status of something like a law from Sinai that must not be touched.

This is, of course, utter nonsense. There is no sanctity to this presumption, and it must constantly be examined against reality—just like the presumption that a person does not pay before the due date, or that a person does not have promiscuous intercourse. These are assessments of reality; even in the time of the Sages they may have been mistaken about them, and certainly there is no necessity to apply them in a different reality. Any reasonable person understands that even today men and women desire relationships and are willing to pay a price for them—this is indeed human nature. But nowadays it is also clear that women are not prepared to pay any price and do not want toxic relationships. In extreme cases there is almost no doubt that a reasonable woman would prefer to remain single. The Talmudic presumption does not hold in our day, at least not in its full scope.

It is quite amazing to me that even an intelligent Torah scholar deeply attuned to modern society and its thought and conceptions, such as Rabbi Joseph B. Soloveitchik, once said in a lecture that this presumption came from Sinai and cannot be changed (I once saw an impassioned quotation of his words in a text from the “Kav” camp, designed to defend yet another foolish position of theirs—for some reason, on this point they apparently consider him their guide). Personally, I am quite sure he himself did not believe this nonsense and likely said it against the winds of Reform (holy untruths). See here for his words and a systematic critique of them.

Applying Talmudic law to our times requires a sharp distinction between norms and facts. Talmudic norms are (usually) binding, but its factual assumptions are not. At least on the factual plane, application to our day requires an up-to-date examination of realities on the ground; the Talmudic statement by itself does not suffice.

Back to Our Case

It is strange to me that in his ruling Rabbi Sherlow suffices with citing the Talmudic source, which in itself is inapplicable to the case at hand for the reasons I explained; beyond that, on a principled level it is not applicable to most cases in our day. We have seen that there is no reason to be beholden to the Talmud’s assessments and conjectures about reality. And in the present case, at least as described in the question, in my view there is no real concern of betrothal and they may marry without a get (moreover, the prohibition to take a second wife is only on account of the ban of Rabbeinu Gershom, not an intrinsic prohibition).