3 Adar: Kiddushin Isn’t Always Kiddushin

This past Sunday was the third of Adar, and it brought me to a responsum written in 1991 by Tsits Eliezer 19;42, about a woman whose divorce case had dragged for nine years. Along the way to dismissing any arguments that she needed to wait for a get, R. Waldenburg raises issues of this case of and of how rabbinic courts deal with such challenges.

The Facts

The couple in question married and divorced but then resumed living together, and had a daughter. When they again split up, the husband claimed that he had given her a ring for the purposes of kiddushin at a party at some point after they had the baby.  While kiddushin is only the first stage of marriage, it obligates a Jewish divorce. She denied this had happened, but rabbinic courts were unsure how to handle their split.

Tsits Eliezer points out that there are two questions, whether the two were married by virtue of the ring incident, and whether they are married by virtue of living together. The Gemara assumes that אין אדם עושה בעילתו בעילת זנות, men don’t engage in intercourse for promiscuous reasons, they mean it to create marriage (as it can in halachah).

Since the ring incident is more easily dispensed with, Tsits Eliezer starts there.

There Are No Witnesses

The ex-husband claimed he had three witnesses to having given her a ring, two of whom were Sabbath-observant. However, one of the observant ones turned out to be a first cousin, rendering him invalid as a witness in this case, and he did not come to court.

We might have had a question about accepting the nonobservant witness’s testimony, since we generally do not accept witnesses who flagrantly violate the Torah. Assuming we could establish the fact of nonobservance (halachic courts do not accept negative testimony about oneself, so the witness’s assertion that he is a Sabbath violator is not credited).

In our times, however, even if we knew for a fact that he kept nothing, it’s not clear that that invalidates him. For the past century and more, halachic authorities have ruled that we don’t treat the nonobservant with all the strictures mentioned in the Talmud. While we wouldn’t ask such a person to be a witness, it’s not clear we can dismiss his testimony as invalid.

In this case, Tsits Eliezer says, we don’t have to get into such questions because the transcript shows that he originally testified that he didn’t know whether the husband had given her anything or said anything, only changing his story after the man whispered in his ear and fed him leading questions. The situation was so blatant that the transcript records the mocking comments of one of the judges. So that witness is meaningless.

The Kosher Witness

That left one witness. While there were some questions about his testimony as well, Tsits Eliezer again refrains from adjudicating that question, since a perfectly valid lone witness is still not sufficient to establish the fact of kiddushin. Shulchan Aruch Even HaEzer 42;2 says that’s true even if the man and woman agree a marriage occurred, because the presence of two witnesses isn’t only about establishing the facts, it’s necessary to the ceremony.

While Rema cites some who rule stringently, that’s not where she denies a marriage took place.  In addition, where there’s a question of iggun, of stranding this woman without the possibility of remarriage—as there is here, where she’s been waiting nine years, and the man was adamant that he would not give a get unless he received a great deal of money– Rema himself did not require following this view.

Where Does the Time Go?

The responsum doesn’t tell us all the background of the case, so we cannot know how this lengthy delay came about before they found their way to Tsits Eliezer. It seems to have taken seven years to get to the court that sent its transcript to him; what happened before that, I don’t know. But it reminds us that in trying to be properly cautious about not allowing halachically married women to think they’re free to marry someone else, we can go overboard and leave a woman stranded for years and years.

In Good Will Hunting, Ben Affleck says “tomorrow, I’ll turn around and I’ll be fifty…”  People have commented on how time flies for decades if not centuries; Tsits Eliezer’s case reminds us that we have to watch the time carefully, particularly when there’s someone suffering every moment her case drags.

Does Living Together Make People Married?

The incident at the party safely dismissed, Tsits Eliezer turns to the harder issue, their having lived together. The easiest implication of a discussion in Gittin 81a-b—the case there is a divorced couple that then took a hotel room together, and Beit Hillel require a get—is that we assume that when men sleep with women (particularly when they’ve been married previously), they mean it to be for the purposes of marriage, since men do not copulate promiscuously, אין אדם עושה בעילתו בעילת זנות. If so, in our case, the woman needs a get.

Tsits Eliezer points out that many authorities (some cited in Pitchei Teshuvah Even HaEzer 149;1) ruled that that principle does not apply where the couple is living together in sin, such as her not going to mikvah. Since they do not care about halachah in niddah terms, there is no reason to assume they care about halachah’s opposition to promiscuity, to men and women having sexual relations outside the context of marriage. (Once again some disagree, but Tsits Eliezer thinks enough authorities hold this way to rely upon in this case of pressing need).

Aruch HaShulchan Even HaEzer 149;3 agrees—a couple that’s willing to incur the early death, loss of children, or of their share in the World to Come of karet by living together without her going to mikvah, why would we think they’d care about whether they’re married?—and adds that if the man has another wife (where halachah has disallowed that), that too frees us from thinking they might be married.

Aruch HaShulchan prefers having a get in these cases but, as Tsits Eliezer points out and as should be a refrain, where that’s not possible, there’s much to rely on to say they’re not married.

Three More Reasons

In our case, the man in fact had another woman with whom he slept regularly and openly (in front of the woman now stranded as his “wife”), showing his lack of concern with halachic niceties regarding his sex life. He had also been diagnosed as a paranoid schizophrenic, helping us withhold the Talmudic presumption that if he slept with someone, he meant to marry her.

Tsits Eliezer adds that the whole incident at the party, where he claims he tried to give her a ring for kiddushin, shows that he did not think they were married. People who live together as marriage don’t later try to marry.

Finally, he adds an interesting claim of Sha’agat Aryeh, writing in the late 1700s (when I wouldn’t have thought this would be much of a problem; apparently, our view of a lack of promiscuity in times gone by is exaggerated—there have always been people who live together without the sanction of marriage, although probably in much smaller numbers. The halachic question is their status in terms of needing a get).

Sha’agat Aryeh says the whole Talmudic presumption that the man meant the act to be kiddushin only applies when that was still a practically applied method of kiddushin. For all that the first Mishnah in Kiddushin says that a man can betroth a woman in three ways, money (or an item of value, such as a ring), a document of betrothal, or an act of sexual intercourse, it has long been true that Jewish men only use money.  When some people still used that third option, it made sense that Beit Hillel would hold that people had that in mind when they slept together.

But where no one gets married that way any more, there’s no reason to assume this man meant that, especially since it’s unlikely he even knew that it’s a possibility.  Unless you’ve learned Kiddushin, you’re likely to think Jews get married with a ring, which inherently means you don’t know that your act of living together could create a marriage as well.

For all these reasons and more, Tsits Eliezer thinks this woman does not need a get, and can go build a house in Israel. Reminding us that, among all other things, the delay in freeing her is also a delay in her getting on with her life, which might include having children, who might contribute to the Jewish people in ways we can only imagine.

Part of what is important about the teshuvah is its highlighting the two sides of concern in get cases. Much as we need to ensure we do not allow halachically married women to think they are free to remarry, we can err on the side of caution as well, allowing the ideal to get in the way of the real, of this woman moving on with her life.

It’s a fine line, and we need to be sure we have halachic leadership that walks it carefully, looking out for when caution is necessary and when we can lean when more towards leniency. In this instance, Tsits Eliezer seems to have been up to the job.