Marital Relations After Divorce (Column 512)
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).
Discussion
You referred to an article by Rabbi Ohad Fixler (in a line above—see here his remarks and a systematic critique of them).
He presents there a more softened approach than yours, claiming that there are presumptions that are fixed and do not change, and others that do.
Why do you not agree with that approach?
This reminds me of Agnon’s beautiful story “Other Faces.” I found online a link to a version of it that was printed in one of the newspapers. Agnon depicts and makes present the possibility inherent in the physical closeness of the divorced couple sleeping near one another, as a way of repairing what had gone wrong between them.
.https://www.nli.org.il/he/newspapers/dav/1932/12/23/01/article/56?&dliv=none&e=——-he-20–1–img-txIN%7ctxTI————–1&utm_source=he.wikipedia.org&utm_medium=referral&utm_campaign=%22%D7%A4%D7%A0%D7%99%D7%9D+%D7%90%D7%97%D7%A8%D7%95%D7%AA%22&utm_content=itonut
I did not understand Rabbi Sherlo’s view.
Even if we assume that the fact that “a person does not make his intercourse an act of promiscuity” is a binding fact given at Sinai, still according to the Talmud there is no problem with a man marrying two women.
So here, socially speaking, it is obvious that he is not married, and if he is married it is only halakhically—and halakhically that is not a problem.
Rabbi Michi, before you came to discuss assessments of reality that have or have not changed,
there is a far graver issue here, namely that a rabbi is issuing rulings online in matters of gittin when he does not know the facts and apparently does not know the halakha either. Every child knows that witnesses are needed to validate kiddushin, and without witnesses this is mere promiscuity. And this rabbi did not even ask the woman about that and apparently issued an outrageous nonsense ruling (for after all, what are the chances that there were witnesses there [if it was a one-time occurrence and they did not live together—as sounds from the question]) on such a grave matter. Inconceivable.
Just to note two points:
A) I do not think the argument that today a person would not effect kiddushin through intercourse is any more convincing than that same argument was over the last 1,500 years.
Moreover, if that were the concern, then why, if a person claims that he did not effect kiddushin through intercourse, is he not believed? If this is only a matter of the act and the person is not believed to deny it, then we could also argue that any man who gave a woman something worth a perutah would need to divorce her out of doubt.
Isn’t it more reasonable to say that the momentary emotional closeness could bring the couple to a momentary agreement to formalize the relationship, and so what we really have is a doubt about kiddushei bi’ah, with no discussion at all about the statistical likelihood that they agreed to this beforehand in some contract?
B) The court ruling you cited is also connected to ruling out the possibility of the child being a mamzer, so to infer from it that this is how they would have ruled ab initio, and not like Rabbi Sherlo, does not seem necessary to me at all.
That “momentary agreement” is not enough. Witnesses have to be present.
And it is less reasonable to think that at that moment of “emotional closeness” he was thinking about witnesses.
Regarding Rabbi Soloveitchik’s remarks.
Those words were said almost fifty years ago.
It seems to me that today even he would agree that “human nature has changed.”
1. First of all, who told you that this halakha still existed even after the ban? Second, one has to know the situation that actually prevails: is there a concern for kiddushin or not? In our case it seems obvious that there is not.
2. A conclusive presumption certainly exists in halakha as well. For example, the presumption of a person’s fitness, which plainly is not based on a majority of fit people but on a person’s right to be regarded as fit. The presumption that one knows the law is not a presumption at all. It is an assumption requiring a person to know the law, and the reason for it is not to give people an escape from punishment. So there is no assessment of reality here at all (incidentally, as far as I know, if there are circumstances in which the assessment is that he justifiably did not know the law, they exempt him). This is a question of culpability, not of facts. The person is treated as guilty despite not knowing the law because he should have known it. That is not the case here. Here there are no rights or other interests involved, only an assessment of reality.
I explained why not. A presumption is the establishment of a fact, and facts depend on reality. What is there to explain here? If there is another example, one must examine it on its own merits (see examples in the first talkback and in my response there). Here that is certainly not the case.
The question was not whether his kiddushin takes effect, but whether they may marry without a get.
Do you know what the facts there were? Maybe he checked with her and only a brief version made it onto the internet? Somehow you are allowed to pass judgment on him without checking, and only he has to check?! I wrote a critique of the ruling, but I did not pass judgment on the rabbi himself (full disclosure: he is my friend).
Beyond that, someone who is asked very many questions can also answer mistakenly out of sheer speed. Rabbi Sherlo answers huge numbers of questions all the time, and mistakes can happen. He is certainly very well versed in the laws of gittin and kiddushin.
He did not make a factual claim that human nature is the same. He claimed that this presumption cannot change and was given at Sinai. That is nonsense.
Eitan,
A. In my opinion it is much more convincing. But if in your opinion it is not—then the conclusion is that for two thousand years this halakha has not been correct. That’s all. The fact is that in the time of Hazal giving a perutah did not raise doubts, while intercourse did. Simply because with intercourse there is the presumption that a person does not make his intercourse an act of promiscuity, whereas a perutah can be given for many reasons.
B. I am really not interested in what they would have ruled. In my view there is no difference. You can see there that this consideration, which goes against the Talmud, is legitimate in their eyes. If they would have ruled differently in our case, then they erred. That says nothing.
Mozer,
It is not necessary to designate witnesses. There need to be witnesses to seclusion. It is customary to designate witnesses at a wedding canopy when there are many invalid witnesses present who could invalidate the kiddushin. In our case, when it comes to witnesses to seclusion, there is no need to designate witnesses.
Why not say, in some cases like Rabbi Soloveitchik, that there are presumptions that are not determinations of fact? (Would “and your desire shall be for your husband,” for example, count for us as a fact and be nullified if women no longer had such desire?)
Rabbi Soloveitchik’s opinion regarding presumptions and so on was also, mutatis mutandis, Leibowitz’s opinion as well (that is what I heard him say regarding the law that Jews are not suspected of homosexual relations). And really, in your view, what was the reason he thought that? (With Rabbi Soloveitchik one could simply say it was because he was conservative and did not want to lend a hand to the Reform, etc.—but Leibowitz?)
Are there rabbis who agree with this ruling of Rabbi Sherlo? It looks like a lack of knowledge and understanding of the sugya, since they always required intercourse for the sake of kiddushin.
With Leibowitz and other academics there is a tendency to see these things as a divine decree that obligates regardless of its correctness, because that solves for them the dissonance between the lack of logic and the commitment. Leibowitz worked very hard to sever halakha from the world and from facts.
I don’t know. It is clear that intercourse for the sake of kiddushin is required, and the Gemara assumes that in such a situation there is such intercourse. Rabbi Sherlo knows that very well too.
In your opinion this academic approach does not hold water? I mean, is it clear to you that Hazal did not view halakha that way?
By the way, regarding this academic approach, I once read something interesting from Rabbi Shagar: from the fact that educated people like Leibowitz held this view despite its being clearly far-fetched and manifestly unreasonable (so according to Rabbi Shagar), that shows that his faith was so strong that he was willing to hold manifestly unreasonable views just so as not to abandon faith (he brought this as a kind of proof that faith is something internal, etc.).
Even if this testifies to strong faith, those conceptions are still far-fetched. I was not discussing how much they believe, but those conceptions in themselves.
As for the matter itself, it testifies to one of two things: either an inability to search for and find a more reasonable explanation that would withstand the criticisms, or a lack of courage to draw the conclusions called for by that lack of logic.
Option A reflects strong faith and intellectual inability. Option B reflects lack of faith accompanied by lack of courage/integrity.
With God’s help, Rosh Chodesh Cheshvan 5783
From the ruling of the rabbinical court in Petah Tikva (to which the post’s author linked), it emerges that the issue of the presumption that “a person does not make his intercourse an act of promiscuity” in the case of a husband suspected of violating prohibitions of intercourse, such as the prohibition of niddah, is disputed among the decisors. For example, according to the Or Sameach, the reason for the presumption is not only the severity of the prohibition of “promiscuous intercourse,” but also the likelihood that the husband regrets the divorce and wishes to renew the marital bond. In practice, the custom of the rabbinical courts is to require, even in the case of a husband who is not observant, a get ab initio; only in situations of concern for aginut or mamzerut do they consider permitting it even without a get.
Therefore, in my humble opinion, Rabbi Sherlo acted wisely when he advised the woman who seeks to begin a “clean second chapter” not to enter into a disputed relationship that is halakhically tangled and entangled. If the intended spouse truly and sincerely desires a relationship that will give the woman he loves a “clean second chapter,” he would agree without delay to release his previous partner by means of a get as a stringency. And one whose “stubbornness comes before his love” is not a worthy partner for married life.
With blessings, Menashe Barkai Buch-Trager
Two questions:
A. When the Sages said that a person does not make his intercourse an act of promiscuity, etc., they said this even though the matter is not at all plausible. So it is hard to say that we are dealing here with some estimate that actually assesses reality. In addition, one must remember that Hazal were speaking about a religious person—there is a claim here that if a person has intercourse, he will presumably prefer to do so for the sake of kiddushin and not for promiscuity, because he is someone who cares about halakha to some degree. Hazal were not speaking, for example, about a secular person—someone who does not care about halakha, in which case perhaps there is no basis for speaking about such an estimate. But regarding an ordinary religious person, who is to say that they did not establish that he makes his intercourse for kiddushin (as stated, assuming this is not an estimate based on reading reality).
B. Regarding the case Rabbi Sherlo dealt with—there, aside from what the rabbi mentioned and other arguments others mentioned here, there is a compelling presumption that he did not have intercourse for the sake of kiddushin, because he has a woman with whom he is involved in order to marry her, and he continued with her even after he had relations with his ex-wife; so he clearly desires her, and therefore where is there any basis to say that there is any possibility that he had intercourse for the sake of kiddushin? His actions prove that he acted out of desire.
A. You contradict yourself then and there. You say that this is not a description of reality (because it is implausible), and then explain that with regard to a religious person this is indeed his intention. In the second part you repeat my own words. So why is this a question for me?
B. Who told you that he was involved with the second woman before he had relations with his first wife? It is possible that the second relationship began much later.
The problem is when it gets complicated. I knew of a case of a woman with children who stayed in a shelter for battered women, and after she received a get she became pregnant by her husband. And they did not go back to living together. What would you rule in such a case?
Master, you are indeed correct. I will correct my words; I am writing from several angles:
A. Regarding “a person does not make his intercourse,” etc.—apparently the reasoning is that if you were to ask that person whether he would prefer this to be promiscuous intercourse or kiddushin, it is obvious that he would prefer it to be for the sake of kiddushin, and this is the presumption regarding that situation. Therefore, every person who has intercourse is basically standing at that crossroads, and we always place him in the category of one who has intercourse for the sake of kiddushin. And so here too we would say that he had intercourse for the sake of kiddushin and not for promiscuity (unless we say that he is secular/an apostate and then he does not care—but even that is not simple, because “a person does not abandon what is permitted and do what is forbidden”).
B. Regarding the Sages’ presumption, I am asking whether there is another angle for saying that here this is not intercourse for the sake of kiddushin, since we are dealing with a person who disparages halakha, and Hazal did not speak about such a person when they said that he does not want to make his intercourse promiscuous and therefore makes it for the sake of kiddushin.
B. I understand; only if it was during the relationship with the second woman, does the rabbi agree that here there is a compelling presumption that this was not intercourse for the sake of kiddushin, also because he is in a marriage-oriented relationship with the second one?
According to your description she does not need a get. There were no witnesses to seclusion, and who knows that the child is his. Beyond that, one would have to know them in order to determine whether they intended kiddushin.
A. Not true. This is not only a question of the meaning of the intercourse but also of their status afterward. A person does not want to find himself married and obligated to a woman just in order to validate his intercourse.
B. I wrote that.
C. Indeed.
As far as I know there was no doubt about the son; the father took responsibility, and what each of them intended—only they know.
Do you need the intention of both sides, or only of the husband?
For kiddushin, the intention of both is required. The husband’s “admission” is also not worth much. Who says he is believed (there is a dispute whether there is the credibility of “yakir” for someone who is not married), and who says she is telling the truth that she became pregnant by him and not by someone else?
Perhaps it is because in a case of doubt involving a Torah prohibition (a married woman) one rules stringently. (I’m not getting into the Rambam right now.) But the presumption is not merely obligating because of doubt, but beyond that; and today there is only a small doubt whether there is any basis for this presumption, and perhaps therefore one should be stringent and require a get in order to avoid a doubt concerning a Torah prohibition.
Does the rabbi have a list (or a source that notes a list) of such presumptions in Hazal and the possible practical ramifications of undermining the presumption today?
I assume a large part of them will be disputed, but I am curious to see how dramatic the practical implications may be.
Does this phenomenon exist throughout the halakhic decisors, historically speaking?
That is, although in the last 200 years the world has been changing at a dizzying pace, there is no reason to assume that between the earliest Tannaim or Amoraim and the latest Rishonim or earliest Acharonim, various presumptions in reality itself did not change. To what extent does the substantive argument—namely, “this is a reality-based presumption that is not valid today, and therefore the Gemara’s law changes”—exist in earlier halakhic sources?
I don’t have one.
Whoever can permit a married woman against the Gemara, Rambam, and Shulchan Arukh on the claim that the Gemara’s words are not relevant and that a presumption written in the Gemara can be mistaken, has no share in the Torah of Moses, exactly like the Reform movement.
1. If even in their time it was not accepted to effect kiddushin through intercourse (and it was forbidden by the ban), yet they still ruled that one must suspect a marriage, doesn’t that mean that this halakha is not necessarily tied to the presumption?
2. In law there is a concept of a “conclusive presumption,” meaning a presumption that remains valid even if it has been proven false. An example is the presumption that everyone knows the law: every citizen is treated as though he knows the law, even if a given defendant positively proved that he was unaware of the clause under which he was charged. How can one know which of the Sages’ presumptions are conclusive and which are not?