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 Shabbat Parashat Miketz| 5766P’ninat MishpatWaiving of Kiddushin Becauseof Invalid Witnesses - From Piskei Din Rabbaniim - vol. I, pp. 19-22
Case: A 15 year-old girl was pressured at a family gathering to accept a ring as kiddushin from a man and be halachically betrothed. She is not willing to marry him as she feels that the marriage is not a good one, and the man wants to marry her and refuses to consider giving a get. The act of kiddushin was done only in front of family members.
Ruling: Although there were only relatives at the kiddushin, it is not simple to disqualify the marriage without a get. In this case, the relatives included the girl’s maternal grandfather and maternal uncle. There are opinions of Geonim, and according to many, the Rambam (Edut 13:1), that relatives from the mother’s side are invalid as witnesses only rabbinically. If this is so, as the Rama (Choshen Mishpat 33:2) takes into account, then the marriage, although invalid rabbinically, is valid from the Torah. As the Rabbis did not come to uproot the Torah law but to add on to it, she would require a get.
However, in this case, where there is great need for leniency, as we cannot expect the girl to marry a man she reasonably considers inappropriate, we must look for room for leniency. The grounds are as follows.
1) R. Akiva Eiger (Shut 95) says that the Rama meant to accept the stringency of the minority opinion that relatives on the mother’s side are invalid only rabbinically, only in a case where that would not cause great difficulties. (Not all agree that the Rambam treats these relatives’ disqualification as rabbinic, as it is derived from p’sukim, even though it is not explicit.)
2) The two witnesses in question are a father and son and they cannot testify together. Therefore, we look at them as if they were, at best, only one witness. When there is only one witness at kiddushin, the Shulchan Aruch (Even Haezer 42:2) says that the kiddushin is totally invalid. Although the Rama says that we should be stringent in the case of kiddushin that was done in front of one witness, he agrees that in cases of an agunah one can rely on those who are lenient.
3) Many (including the Beit Yosef) rule that when two witnesses are relatives of each other, we apply the rule that they disqualify each other, and the two do not even count as one witness.
4) Since the litigants are Sephardic and the reasons for stringency are based on the Rama, as the Shulchan Aruch is lenient, we follow the Shulchan Aruch’s position.
Therefore, we allow the girl in question to remarry without the need for a get.
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