Q&A: The Prohibition of a Married Woman Who Committed Adultery
The Prohibition of a Married Woman Who Committed Adultery
Question
Hello, my dear honored Rabbi, may he live long and well.
A Jew from a Hasidic background who left religion asked me the following: he got married, conducted an open relationship, then divorced. Now they have repented and want to remarry.
What about the prohibition that a married woman who committed adultery is forbidden to her husband?
Of course, it would be a great mitzvah to permit them…
I saw that you wrote an article on the subject of promiscuity with the husband's consent.
I would be happy to receive a halakhic ruling.
Many thanks
Answer
Greetings to the gentleman. I hope he is well.
I don't recall an article of mine on this subject. What I found now on my site is a rather short question and answer: https://mikyab.net/%D7%A9%D7%95%D7%AA/%D7%90%D7%99%D7%A9%D7%94-%D7%A9%D7%96%D7%99%D7%A0%D7%AA%D7%94-%D7%91%D7%94%D7%A1%D7%9B%D7%9E%D7%AA-%D7%91%D7%A2%D7%9C%D7%94-2/
On the face of it, it is very difficult to permit this in such a case. True, some halakhic decisors have written regarding a woman who committed adultery because she thought it was not considered adultery at all (for example, some rabbi seduced her by claiming it was a mitzvah for the good of her marriage, and the like—as in the Weinberg case from Safed, and now another such case has been publicized, may the Merciful One save us). But that is because she herself did not think there was any trespass against her husband here (and they distinguished that case from the words of the Maharik). But in our case, the reasoning that arises is different: there is no trespass because he agrees. That is a very novel argument, and in my view it is hard to permit on that basis. On the face of it, the matter does not depend on his objection or lack thereof.
But perhaps there is room to examine the original betrothal itself on the basis of that same reasoning. If it took place when both of them were far from Torah and mitzvot, and it was done on the understanding from the outset that the relationship would be “open,” then there were no valid kiddushin at all. If he does not set her apart for himself, and both of them intended that it be “open,” then it appears they did not intend kiddushin according to the law of Moses and Israel. And according to the well-known Maharik regarding “she committed a trespass against her husband,” it seems that even if both of them thought the matter was permitted, still there are no kiddushin here, because at the end of the day these simply are not kiddushin. Admittedly, one could discuss this from the standpoint of unexpressed inner intention, but with secular people’s kiddushin in general everything rests on unexpressed inner intention anyway, since the validity of the kiddushin is only because we judge that in their hearts they want to marry according to the law of Moses and Israel. If it is clear after the fact that they did not, then there are no kiddushin here.
Perhaps one may also add that when these events took place they were coerced in their thinking, like children captured among non-Jews, and coercion is lighter than inadvertence, so she is not forbidden to her husband. However, this depends on whether even at that time they understood that the matter was forbidden and their desire overcame them, or whether they denied the truth of the Torah altogether—in which case they were indeed coerced.
To return to the law: the first reason seems doubtful to me, though perhaps it can combine with the other two. In any case, with the combination of those latter two reasons, there is room to permit them to remarry, because they were not married at all at the time of the promiscuity. At least in this situation, there is room to consider it this way so as not to lock the door before those who return. But if the latter two reasons do not exist in this case, I would unfortunately not permit it.
That is what seems correct to me.
Discussion on Answer
I looked into it again just now, and it seems to me that there is nevertheless room to discuss permitting it.
At first glance I thought that according to the Maharik, if she erred in the law, that does not permit her to her husband, because at the end of the day she in fact committed a trespass against him. If so, then in our case as well, even if in their situation this is considered coercion from a halakhic standpoint, in practice she did trespass against her husband. And seemingly from that angle there would be no permission for them. And in Ketubot 51 we find that even if it began under coercion and ended willingly, she becomes forbidden.
But on reconsideration I saw two grounds for leniency.
1. Some halakhic decisors wrote that if she committed adultery with her husband’s permission, it is not considered a trespass and she is not forbidden to him (I had overlooked this in my previous letter). So it appears in Rosh Pina 178, and in Igrot Moshe, Even HaEzer 4, siman 44.
2. The words of the Maharik themselves are his own novel ruling (see Seridei Esh 2:70, who noted this and suggested an explanation, though it is very forced) and have no source in the Talmud. Moreover, in a responsum of the Rashba (part 1, 1189), he wrote that one who says “it is permitted” is considered intentional, and therefore she is forbidden to her husband. From his words it follows that he disagrees with the Maharik, and according to his view, if she merely erred in the law she would be permitted to her husband were it not for the fact that she is treated as intentional. But in our case it is obvious that she is not treated as intentional, since she did not believe in Jewish law at all, and the idea that “she should have checked more carefully” does not apply. We are thus left with the conclusion that according to the Rashba she is not forbidden. So the Rashba’s stringency turns into a leniency. And finally, even if you say that the Maharik is correct and that his words apply to our case as well, still perhaps coercion is different from inadvertence, though that too is somewhat forced, as stated above.
Bottom line: there is room to permit in such a case. The permission is not broad or clear-cut, but in a time of great need, if they love each other very much and very much want to live together, it seems to me that one may rely on this—especially since here it serves to help those who return.
That is what seems correct to me.
Many greetings,
after another conversation with the Jew who asked. At the time of the kiddushin, both of them were far from religion, and he also was not interested in marriage at all, but only did so in order to satisfy his parents, who pressured him to marry. Alongside that, at that time he did not know about the concept of an open marriage.
However, they were complete deniers throughout the entire period in which they conducted open relations, so the last line of reasoning does apply in this case.
Thanks and blessings