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Shabbat Parashat Chaye Sara| 5766

Pninat Mishpat



Delay Between Get After a Civil Marriage and a New Marriage - Based on Piskei Din Rabbani’im, XVII pp.112-121
 
Case: A woman was civilly married and divorced many years ago in Russia. Only a few days ago she received a get. She now wants to get married to a man who demands that the kiddushin take place immediately, because he needs to return to America. Can the period of havchana (3 month wait between the end of one marriage and the beginning of another) be waived?
 
Ruling: The requirement that a widow or divorcee wait three months to determine whether a child she may bear is from the first or second husband is derived from p’sukim. However, the majority opinion is that this is a rabbinic law. Either way, the Rabbis ruled that recent widows and divorcees must do havchana across the board, even if there is no possibility that she is pregnant at the time of the second marriage (Rambam, Geirushin 11:20).
 The question is when the first union did not require a get according to the letter of the law, whether we still require havchana. [The dayanim pointed out that when necessary, one can permit remarriage after a civil marriage without a get.]The Ran and Rashba say that anytime a get is given, the woman is considered a divorcee, as we should not distinguish between different types of get, lest people learn to ignore certain laws of divorcees. Yet there is a secondsource from the Rashba in which he does not require havchana after a get that was given when it was not clearly necessary. There are different approaches to reconcile the apparent contradiction. We should note that the Rashba referred to a case where there were reports of real kiddushin that prompted the get; in our case, in contrast, there was clearly no more than a civil marriage, and the get was a stringency (l’chumra).
 There is a machloket between Tanaim whether a woman who had pre-marital relations has to do havchana or whether we can assume she took steps to prevent pregnancy. The Shulchan Aruch (Even Haezer 13:6) says that she does not need havchana, but the Rama (ad loc.) says that she does, and this should be the decisive ruling for the couple, who are Ashkenazic. Even the Shulchan Aruch should agree in the case of a couple who are civilly married, because that is a permanent relationship where she is interested in having children. However, that situation is not relevant in our case, where the couple was divorced civilly years ago, so that practically there is no likelihood of her being pregnant. From the halachic perspective of treating all married women the same, we have already pointed out that a civil marriage is likely halachically inconsequential. Therefore, as this is a question of only a possible rabbinic law and considering the pressing nature of the situation, we can accept the lenient opinion that the woman does not have to wait three months subsequent to her get l’chumrah before marrying.
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Dedication

This edition of
Hemdat Yamim is dedicated to the memory of
R’ Meir ben Yechezkel Shraga Brachfeld o.b.m.

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