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 Shabbat Parashat Ki Tavo| 5765P’ninat MishpatRequest of an Apparent Kohen and Divorcee to Certify Their Marriage - Based on Piskei Din Rabbaniim - vol. V, pp. 219-224
Case: A couple approached beit din to certify their marriage, claiming they had performed without undergoing the normal legal process that Israel requires. Upon questioning, beit din ascertained that there were indications that the man was a kohen,andit is documented that the woman is a divorcee. The couple, who live together and are known by their acquaintances as husband and wife, brought halachic precedents that even if their marriage is forbidden, it takes effect post facto (b’dieved). Their request is not to approve of the union but to recognize a fact, with their intention being only to benefit in the civil and/or financial arenas. They explain that they did not undergo the regular, legal process because the rabbis who were to take care of the matter refused to do so.
Ruling: After investigating the matter, beit din was able to ascertain that the father of the man in question acted and was treated as a kohen. This presumption, which remained unquestioned for an extended period of time and remains for many members of the family, creates a halachic chazaka. The halacha is that when there is a chazaka of kehuna for a father [and the child is not known to have been born through a union that is forbidden for kohanim] the chazaka applies to his sons as well (Shulchan Aruch, Even Haezer 3:6). Thus, there is a negative, Torah prohibition for this presumed kohen to marry a divorcee.
It is true that in the case of a marriage between a couple who are forbidden to marry by a “simple” Torah prohibition, the kiddushin takes hold post facto (see derivation in Yevamot 23a). However, it is not that post facto we recognize their union as a legitimate one. To the contrary, beit din is obligated to force them to divorce (Shulchan Aruch, EH 6:1). Therefore, it is forbidden for beit din toassist the forbidden union by granting formal recognition of a status which is required to be ceased as soon as possible (Shut Beit David 6). This is included in the general rule not to aid in the performance of a sin.
Additionally, the rights that the couple wants to secure are rights that they are not entitled to, not from a religious perspective and not from a legal perspective. The financial rights that halacha gives to a wife are intended to give her security and stability in her marriage. They do not apply in cases where the couple is required to end the marriage immediately. From a legal perspective, the couple admits that they purposely circumvented the legally prescribed process because they were aware that they were asking for an illegal union. To fulfill their desire to formalize the union post facto is to make a mockery of the legal process. The extent of the post facto effect of the marriage is that they need to end their relationship with a get.
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