Wednesday, May 13, 2015

Rav Dovid Eidensohn: Telephone Conference Shiur #7 - Negating a Marriage without a GET Shiur on Wednesday night 9:30 May 13

Shiur on Wednesday night 9:30 May 13 – Call 605-562-3130 then enter code 411161#

1. HaGaon Reb Moshe Feinstein in EH IV:52 writes that if a woman marries and finds out that the husband has a great defect, that the marriage can be negated without a GET. Cases are that the husband cannot have BIAH, or the husband is a Shoteh.

2. In EH IV:113 Reb Moshe permits the wife to remarry if her husband is discovered to be strongly involved in homosexuality. But this only applies if the wife, immediately upon learning about her husband’s problem left him and did not return.

3. However, “If it is impossible to get a GET from him we permit her to remarry, but if it is possible to get a GET from him we must do everything possible to get the GET.”

4. But why is there such a need to get a GET that everything possible, such as paying large sums of money, must be invoked? And the answer is, that it is extremely rare to find a Rov who permits a married woman to remarry without a GET, and even Reb Moshe commands us to get a GET at any cost, if possible

5. Also, Reb Moshe in EH I:79:1 brings from the Beis HaLevi Simon 3 and the Kovneh Rov, AIN YITSCHOK 24:6 and BIARE YITSCHOK 4:3, Gedolei hador in the time of the Chofetz Chaim who were are not sure that the marriage is negated by a great Mum or blemish.

6. The Kovneh Rov brings in AYIN YITSCHOK I:EH 24:7:44 that some authorities feel that there is a doubt whether if there is a great defect the marriage is negated: Chavass Yoir, the Besomim Rosh, Rashbatz and Shevuse Yaacov did not want to permit remarriage without a GET. If so many great authorities were not sure of the halacha with a great blemish and refuse to permit the wife to remarry, Reb Moshe took upon himself to permit this. But this does not mean that we do this as we see that the majority of the great authorities from previous generations did not consider the woman free to remarry.

7. Reb Yosef ben Leib, considered by some the rebbe of Rebbe Yosef Karo, writes in volume two IV:19:3, Regarding a woman remarrying when she may be forbidden to do this, we are stringent and forbid this, even if most authorities permit it.” What if most or all other authorities forbid it? That is the situation with Reb Moshe’s opinion about permitting a woman to remarry when nobody agrees with him. But there is another problem with this heter.

8. Reb Moshe himself says that the person who wants to cancel the marriage can only do so when the great blemish is discovered and immediately, without delay, the person leaves the house and has nothing to do with the blemished person. This is found in Chelkas Mechokake EH 39:9.

9. My question is: Let us assume that a blemish does permit a woman to be free of the marriage. But who knows that the wife immediately fled from the husband? Of course, now, hours or days or weeks later, she may have decided to leave. But if she delayed even by a small span of time, she is not free. And is it not likely that the woman was in a great state of shock and struggled to think things over. Leave? Maybe yes, maybe not. Perhaps being alone is worse. What would people say? Who will support me? What will the children say? How will the children ever marry if people know that their father was an active homosexual? What if the wife wants to straighten out her bank account that has large sums that if she has a few days can be in her favor, but if she just runs away, she may lose everything? What is the halacha about that? Who takes the responsibility to say it is not a problem?

10. Another problem is one I learned the hard way. I once needed a GET from somebody who would not allow a rabbi into his office. Reb Moshe had a teshuva permitting making the GET. A rabbi agreed to do the GET on the condition that he personally not give a document that the woman was properly divorced. Rather, he would write that according to Reb Moshe the GET was kosher. At that, I called Reb Moshe’s gabei and was told, “Just because it says that in the Teshuva sefer, does that mean that we do it?” I was stunned and just hung up. I called up Reb Aivigder Miller zt”l who told me, “Reb Moshe became stricter later in life and regretted some decisions he had made in earlier times. When the world was a complete disaster Reb Moshe felt he had to be very lenient. But as the word got frumer Reb Moshe pulled back.

11. If so, who says that anyone should do what Reb Moshe permits in this case when all rabbonim disagree with him?

12. I heard from the assistant to Rav Henkin, Rabbi Margolin, a similar thing. We used to doven in the same shull and we would talk. He told me that he constantly asked Rav Henkin to put out his teshuvose, because he was the posek hador in America before Reb Moshe, and he had a huge amount of teshuvose. But Rav Henkin refused. He felt that his teshuvose were for a lost generation, and he hoped that better times would come when his teshuvose were not appropriate.

13. If so, when we find an incredible chidush from Reb Moshe, who says something that nobody else in the world accepts, and what the greatest authorities discuss in depth and reject Reb Moshe’s leniency, who can go release a woman from a marriage and have her remarry and have children after that? Probably, there is a serious doubt if Reb Moshe himself would continue to hold this opinion. And even if he does maintain his leniency, how can we permit a woman to remarry when all of the great rabbis who discussed this refused to permit her to remarry? And how do we know that she really left immediately when finding out the problem with the husband?

14. Another problem. A marriage made with the understanding that it will only be viable if such and such are done. Or a marriage that is only viable if a person does not have a certain problem. If the condition is not fulfilled do we cancel the marriage? If the marriage was made with ERUSIN alone, only giving a ring, for instance, and the condition is not fulfilled, the marriage is off. But if the couple had CHUPAH or intimacy, the condition may be cancelled. See Shulchan Aruch EH 38:35.

15. “One who makes ERUSIN with a condition [that cancels the marriage if the condition is not fulfilled], but has relations with his wife without mentioning the condition, [and the condition is not fulfilled seemingly canceling the marriage] she needs a GET [meaning she is married despite the condition that cancelled the marriage] even though the condition was not fulfilled. We suspect that he negated the condition when he had relations with her or brought her into his home. Ramo – And if somebody else marries her she needs a GET from both of them.” We see from this that even when somebody says he will marry only if a certain condition is fulfilled, and the condition is not fulfilled, if he has relations or CHUPAH with his wife, we fear that he negated his conditions. This could be because “nobody wants to have marital relations that are zenuse.” See also EH 38:36 at the end that she is married after the intimacy and he must give her a KESUBO even if the condition for the marriage is not fulfilled.

16. Thus although if somebody makes a condition to marry and the condition is not fulfilled the marriage is off, that only applies to ERUSIN, without CHUPAH or BIAH. But if somebody makes a condition that only with this condition is there a marriage and then there is CHUPAH or intimacy, there is a serious question if the condition is negated by the CHUPAH or intimacy. Because once a person has CHUPAH or intimacy and still presses the condition, the marriage is off. And the CHUPAH and intimacy were outside of a marriage, or Zenuse. Therefore, it is quite possible that any condition made for ERUSIN is negated upon CHUPAH or intimacy. But a woman married with CHUPAH or intimacy, even if we would normally assume that no man or woman would accept such a blemish in marriage, this is only prior to CHUPAH. But once there is CHUPAH conditions are negated so that the intimacy is not Zenuse. If so, in all cases where the marriage is negated because of a MUM or serious problem, once there was CHUPAH it is possible that the marriage is still viable to prevent BIAS ZENUSE.

17. See Yevomose 107 “Nobody makes his intimacy Zenuse” and “a marriage made with certain conditions, those conditions are negated when the couple is together” means basically that the marriage with CHUPAH survives the requirement of conditions. This is a complicated topic but surely it is not a simple thing to free a woman who is married to somebody who has a great blemish MUM, especially as other than Reb Moshe nobody permits it, and everyone forbids it. And, as I mentioned earlier, Reb Moshe’s teshuvose often contain material that he personally refused to permit in later years. Perhaps this is one of them.

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