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Shabbat Parashat Vayishlach| 5766
Complaint About the Granting of Widow Status - Excerpts from Piskei Din Rabbaniim - vol. VI, pp. 281-291
Case: A woman (=A) demanded that a man (=B) marry her legally, after they had an unauthorized (she was under-age) private, wedding ceremony, and she was pregnant with his child. Beit din told them to undergo the legal process, including the check that they are single. The couple did not return until some time later when A demanded a get.Whenit turned outthat B had died, A demanded that she and her daughter be recognized as B’s widow and child, respectively. This was done after witnesses to the (illegal but valid, post facto) wedding testified. Another woman (=C) subsequently came to beit din with proof that she was B’s legal wife from before A’s “marriage” to B until his death. C wants the determination of A’s status to be revisited, as it was done without her involvement.
Ruling: Although the rule is that beit din mayhear testimony only in the presence of the litigants, that applies primarily to monetary cases, and not to determining a status in order to determine whether something or someone is permitted or forbidden. For example, when a married woman brings a get to beit din and asks for permission to remarry, her ex-husband does not need to be present at the hearing (Shut Harashba IV, 200). Also, in a case of an inquiry whether a woman committed adultery in order to determine whether her husband must divorce her, the accused adulterer need not be present even though acceptance of the charges will make her forbidden to him as well (Chelkat M’chokek 11:11). On the other hand, if the determining of marital status arises within the direct context of monetary issues (i.e. inheritance or support payments) (Shut R. Betzalel Ashkenazi 64) then the other side should be present. In our case,thedetermination of A’s status was done in the context of permitting her to remarry, and matters of inheritance are only a ramification. Certainly here, C is not a party to the question of A’s status.
We note that the situation arose because of A and B’s regrettable illegal marriage. Beit din could not lend credibility to a forbidden marriage by confirming it during his lifetime, even though A was already forbidden to remarry. Beit din’s policy is to confirm only after death that an illegal marriage had taken place. At that time, even forbidden marriages, such as that of a kohen and a divorcee, can be confirmed.
Even if C would be considered a litigant in the matter of A’s marriage, and witnesses should have testified in her presence, it is not clear that we would accept her demand that they testify again. The Rama (Choshen Mishpat 28:15) brings two opinions on whether testimony heard not in the presence of one of the litigants is valid post facto. If it is, then we apply the rule that witnesses cannot alter their testimony, making their return to beit din meaningless.
C’s demand to dismiss the ruling on A’s marriage to B is rejected.
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Hemdat Yamim is dedicated to the memory of
R’ Meir ben Yechezkel Shraga Brachfeld o.b.m.