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Shabbat Parashat Vayeishev 5774

P'ninat Mishpat: A Get for a Fake Marriage?

(from Piskei Din Rabbanim, vol. X, pp. 327-331 - a psak din by Rav Ovadia Yosef, Rav B. Zolty, and Rav E. Goldschmidt)

Case: A woman received a ring from a man along with the declaration of “hari at mekudeshet…” in a manner that, according to all indications, was a joke. A majority of dayanim in the regional beit din required her to receive a get l’chumra (to remove doubt), but she appealed to the Supreme Rabbinical Court.

 

Ruling: The Rama (Even Haezer 42:1) says that if a man and woman went through a basically valid act of kiddushin, including the woman’s expressed interest in it, except that the man threw the ring into her lap and she shook it off, she is considered married. He says that this is so even if there are reasons to believe her claims that she was just joking and did not intend for marriage, because we are very strict about the prospect of permitting remarriage to a woman who could be already married. We take into consideration that while she apparently did not want to marry the man who gave her the ring, maybe she decided not to be choosy.

However, this case is different in that the husband and the witnesses all say that the “marriage” was a joke. Here we say that the man is not likely to also have decided to enter a marriage that he apparently was not interested in, and he also has little to gain by denying a valid marriage since he can give a get if he wants (Tzuf D’vash 25; Halichot Eliyahu 13). While this approach is not certain, there are several other doubts on the validity of the kiddushin.

For one, the ring the man used was borrowed from another woman, and he did not tell the owner it was to be used for kiddushin. Therefore, it is questionable if he owned the ring, as is required (Shulchan Aruch, EH 28:19 – the Rosh, Kiddushin 1:20 says they are not married). Additionally, the witnesses were not set aside, in which case, some say that the presence of non-kosher witnesses (in this case, the women present) connects them to the kosher ones and disqualifies all (based on Ritva, Kiddushin 18b). Although we require a get in such cases, the matter is still a doubt that can join up with other doubts.

The witnesses are not reputable people, and there are strong indications that they are Shabbat desecrators. Even if we don’t trust them that they violated Shabbat, the fact that they are problematic personalities makes them unfit as witnesses Rabbinically, raising further questions about the need for a get (see Shut R. Akiva Eiger 100). Also, the witnesses are not able to testify in sufficient detail (e.g., remembering the “ceremony’s” date) to be considered “interrogated” (drisha v’chakira). A final point is that there are opinions that the Rabbinical decision not to do kiddushin without a simultaneous chupa might uproot the marriage.

While some of the doubts raised are stronger than others, it is clear that the confluence of the different reasons not to give legitimacy to the act of marriage is enough to not require a get.  The two regional dayanim who required a get without explaining their halachic basis should cease acting in such a manner. [Editors note – the idea of connecting doubts and the rejection of unnecessary stringency are both hallmarks of Rav Ovadia Yosef zt”l’s halachic style.]

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