• August 15, 2022
  • 18 5782, Av
  • פרשת עקב

The Laws of Marriage and Divorce

The Laws of Marriage and Divorce

In this course Rabbi Dr. Stuart Fischman will discuss some aspects of the laws of marriage and divorce, as well as some of the lesser known laws of these two institutions.

May 15, 2012 5:00 pm - 6:00 pm
The Laws of Marriage and Divorce: Lesson 1
Class description

Hello and thanks to everyone who attended the shiur and who listen on the archives. Today we started our discussion of marriage in Halacha. First we saw the opinions if there is a mitzvah per se to get married or if the mitzvah of marriage is to be understood as means to perform the mitzvah of having children. We then moved on to study what is actually meant when we say that a man and woman are married. We saw that “marriage” is the agreement of a woman to knowingly enter into a monogamous relationship with a man and that this relationship can be terminated only by divorce or the death of the husband. We saw in Shulchan Aruch that marriage is normally created when the man tells his wife-to-be “Harei at mekudeshet li…” Significantly, the Halacha is that the giving of the ring does not have to be precede by “Harei at mekudeshet li..” In a case where the couple were having a marriage-related discussion, and then the man gave the woman an object, that object becomes a vehicle for kiddushin and the couple are married (if two witnesses saw the woman accept the object). This being the case, Rav Henkin zt”l wrote that when a man gives his fiancee-to-be an engagement ring (in front of 2 witnesses) they are married, because the woman accepted an object in a marriage-related context. Next week, bli neder we will continue with the discussion of marriage in Halacha. if anyone has questions or suggestions please write to me at

May 22, 2012 5:00 pm - 6:00 pm
The Laws of Marriage and Divorce: Lesson 2
Class description

Hello everyone. Today we began the discussion of marriages not performed along the ideal Halachic lines. We saw the Gemara in Gittin that says when a divorced couple lodge together in a hotel then they are considered to be re-married and a new divorce will need to be arranged. the reason that the couple are considered to be married is that there is a principle that “people do not have promiscuous relationships.” The Rambam quotes Geonim who feel that this principle applies to any man and woman who are alone together. the Rambam says that the view of the Geonim is incorrect and that this rule only applies only to a divorced couple. We then started the teshuvah of the Rivash, who was one of the last great Halachic authorities from Spain. The Rivash was asked if there is any validity to the marriage of two Anusim performed by a Catholic priest in a church. TheRivash answered that the Catholic ceremony lacks any validity because it does not conform to the basic Halachic parameters for marriage. Then the Rivash addressed the idea that perhaps the couple are married Halachically because of the fact that they lived together as man and wife, in a similar fashion to the Gemarah in Gittin. The Rivash explained that even if we say that people do not engage in promiscuous activity, that principle only applies when the alternative to a promiscuous relationship is to live together as a Jewish couple , wed according to Jewish law. However, in this case the couple chose to establish their relationship on the foundation of a Christian ceremony, and the Rivash emphasizes, there are no witnesses saying that the husband asked his wife to marry him, Halachically, via their living together. This being the case, we do not say that their living together creates a state of marriage. Next week, bli neder, we will finish the Rivash and go on to the subject of civil marriages. Have a Chag Shavuot sameiach, Stuart Fischman

Handouts
May 29, 2012 5:00 pm - 6:00 pm
The Laws of Marriage and Divorce: Lesson 3
Class description

Hello, and a particular welcome-back to Joel Nowicki. Today we finished our discussion on civil marriage in Halacha. We saw that there are two views on the fundamental nature of Jewish marriage; is it only a commitment to the creation of a state of monogamy between a man and a woman, or must this commitment be based on a commitment to Judaism. Two great authorities on Jewsih law disagreed along those lines. Rav Yosef Henkin zt”l adhered to the first view and consequently felt that a woman married by a civil ceremony requires a Jewish divorce ( a “get”) as long her “marriage” was known to valid witnesses. Rav Moshe Feinstein zt”l felt that civil ceremonies have no validity at all.

June 5, 2012 5:00 pm - 6:00 pm
The Laws of Marriage and Divorce: Lesson 4
Class description

Hello everyone. Today we spoke about two aspects of marriage. One aspect is the “finality’ of marriage- once the bride and groom perform the marriage ceremony, they cannot abjure their entering a state of matrimony. of course they can terminate the marriage via divorce, but they cannot end the marriage by claiming (among other things) that the marriage was not “serious.” We also saw that creating a marriage is very “process dependent.” It is not enough that the bride and groom intend to be married, to become married the groom must express his intent to marry his bride, the bride must understand what the groom is saying, and two witnesses must see the bride accept the wedding ring from the groom. If these steps are not followed scrupulously, the couple is not married. However, if these steps are followed, the couple is married, and neither bride nor groom can claim their participation was “a joke.” Joke weddings do occur and we saw two teshuvot, one from the 13 century and one from the 20th that dealt with such weddings. Maharam of Rottenberg was asked by a woman who claimed her participation in a wedding was ” a joke” if she was indeed married. Maharam, after questioning the witnesses ruled that they did not see the bride accept the ring, so the wedding was invalid. Rav Moshe Feinstein zt”l was asked by an American who married a Polish Jew in order to allow him to obtain a visa to enter the US if this marriage was binding. Rav Moshe Feinstein ruled that the marriage would be binding since she never explained to the witnesses anything to the contrary. However since she never had “yichud” with her groom, and since he died and the question was one of “chalitzah” she could claim that she did not enter the wedding only to be encumbered by the need to find her late “husband’s” brother, so the marriage is annulled.

June 12, 2012 5:00 pm - 6:00 pm
The Laws of Marriage and Divorce: Lesson 5
Class description

Hello everyone, Thank-you for attending the shiur. Today we studied a teshuvah about a “joke” marriage from Rav Moshe Feinstein zt”l. Rav Moshe Feinstein in his analysis made a very important point (of course). His point is that even though Chazal say that a bride accepts her groom “warts and all’ ( or in Aramaic, “it’ta b’cho d’hu neichah lah) if the witnesses have a well-founded doubt about the seriousness of the bride’s acceptance of the marriage, then the marriage is not valid. The reason for this is that the witnesses must have absolute , certain knowledge about all aspects of the wedding. This knowledge must encompass the seriousness of the bride and groom, and not merely the bride’s acceptance of the ring. rav Moshe feinstein emphasizes that Chazal’s statement that “b’chol d’hu neichah lah” is not meant to be an absolute rule for all women at all times. We will see later in the z’man, bli neder, other ideas about this statement.

June 19, 2012 5:00 pm - 6:00 pm
The Laws of Marriage and Divorce: Lesson 6
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Hello- Today we discussed the “Cherem Rabbeinu Gershom”- the early medieval decree which forbade polygamy to Ashkenazi Jews. We also discussed the “Heter Mei’ah Rabbanim” which permits a husband to take a second wife if 100 prominent sages agree that it would fair to do so. We saw a teshuvah of rav Kook zt”l who was reluctant to be part of a “Heter Mei’ah Rabbanim” because he was not convinced that permitting the husband to remarry was just or fair to the first wife. We also saw a teshuvah of the Rivash, an authority of medieval Spain (where polygamy was allowed since Sephardic Jews did not accept the Cherem Rabbeinu Gershom)who explained the rights of a wife whose husband wishes to take a second wife.

June 26, 2012 5:00 pm - 6:00 pm
The Laws of Marriage and Divorce: Lesson 7
Class description

Today we discussed the attitude of the Halacha towards the bride giving a ring to the groom as part of the wedding ceremony. From there we saw a teshuvah of Rav Moshe Feinstein zt”l about the women’s equality in Halacha, as well the web-site of a woman who claims the right to be “Soferet Stam.”

July 3, 2012 5:00 pm - 6:00 pm
The Laws of Marriage and Divorce: Lesson 8
Class description

Hello everyone. Today we studied some examples of “misrepresentation” which can void a marriage so that no divorce (“get”) would be required, since the marriage itself is invalid (and a “Get” is only needed to terminate a valid marriage). On the one hand we saw a teshuva from one of the greatest of the Poskim, the Noda BeYehudah. In a case brought before him, a man married a woman on the pretense that he was a single, observant Jew. On the day after the marriage he stole all of his bride’s property and ran away to a town where he was living as a Christian with a Christian wife. The Noda BeYehudah refused to void the marriage. In another case, the Chatam Sofer refused to automatically void the marriage of a couple when the groom did not disclose that he suffered periodic bouts of insanity which required him to be institutionalized two months of every year. On the other hand we saw that Rav Moshe Feinstein zt”l ruled in cases (which may not precisely mirror the cases of the Nodah BeYehudah and Chatam Sofer) that undisclosed flaws which prevent normal married life do void marriages. The Rav Weinberg zt”l in his responsa “Sridei Eish” ruled that an apostate who presented himself as an observant Jew is a fraud and his marriage is void. However Rav Weinberg wrote that he would not rule against the Noda BeYehudah without the concurrence of other authorities.

 

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Handouts
Archives
July 10, 2012 5:00 pm - 6:00 pm
The Laws of Marriage and Divorce: Lesson 9
Class description

Hello Everyone, Welcome to a new member of the shiur, Annah, and welcome back to Joel Nowicki. Today we started the subject of how a wife sues for a divorce. We saw the suggyaot in the Gemarah that describe how Beit Din compels a husband to give a divorce and the Rambam reconciles Beit Din’s authority to compel the husband to give a divorce with the requirement that a divorce be given willingly. Finally we began to study the laws of a woman who comes to court and says she is sickened by her husband.

Handouts
July 17, 2012 5:00 pm - 6:00 pm
The Laws of Marriage and Divorce: Lesson 10
Class description

Hello. Today we studied the opinions about under what circumstances we compel a husband to grant a divorce. There are three primary schools of thought: a) The Rif, quoting the post-Talmudic yeshivot says that any woman who asks for a divorce on the basis of incompatibility is granted the divorce immediately. b) The Tosafot (excluding Rabbeinu Tam)say that if the woman can provide a factual basis for her loathing of her husband, the husband must grant the divorce immediately, and should he fail to do so the court may compel him to do so. c) Rabbeinu Chananel says even if the husband behaves with cruelty towards his wife the court may only explain that the law expects him to divorce his wife, and that by failing to do so he will be regarded as a sinner. The court may not compel him to grant a divorce. d) Rabbeinu Tam agrees with with Rabbeinu Chananel that the court may not use physical force except in cases where the Gemara expressly allows this. However, Rabbeinu Tam says that the court can enforce social sanctions against the husband in order to compel him to grant a divorce. The Halacha in Shulchan Aruch is in accordance in with rabbeinu Tam

July 24, 2012 5:00 pm - 6:00 pm
The Laws of Marriage and Divorce: Lesson 11
Class description

Hello everyone, Today was the final shiur in our series. We saw how 3 contemporary Poskim ruled in cases where the wife asked for a divorce based on a claim of incompatibility (“ma’is alai”). Rav Herzog zt”l based his approach on the Tosafot in Kettubot, that whenever the court sees that an injustice is being perpetrated against the wife , then the court can compel the husband to issue a Get. Rav Waldenberg zt”l, wrote in 1952 about the wives who were forced to marry by their fathers in Sephardic countries and who claimed that they never consented to their marriages and now they want to be divorced. Rav Waldenberg wrote that there is a sufficiently large number of authorities who would allow the court to compel a divorce. the late Rav Elyashiv zt”l (who served on the court with Rav Waldenberg) wrote a dissenting opinion saying that the court cannot compel the husbands of these women to issue a Get. Rav waldenberg replied to rav elyashiv and made these points (a) the authorities who support and oppose compelling a get are evenly matched ,(b) these women were married off against their will ,(c) failure by the court to address the needs of these women will give impetus to those who wish to attack the Torah and (d)the financial penalties used to coerce the husband is not “coercion” in the strict sense of the Halacha. Rav Waldenberg closed his essays with the wish that his ideas would become the norm for all the rabbinical courts in Israel butsadly this does not seem to be the case. I hope everyone enjoyed the shiurim and I look forward to meeting with you again in Elul. A pleasant summer to all.

Rabbi Dr. Stuart Fischman graduated from Yeshiva University in 1980 and the dental school of Columbia University in 1985. In 1989 he began studying and teaching at Yeshivat Hamivtar and now studies and teaches at Yeshivat Machanaim in Efrat. He has rabbinic ordination from Rav Zalman Nechemia Goldberg.