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Rambam-Gerushin      Rambam-Issurei Biah   Talmud-Yebamot    Talmud-Gittin
Summary:
 
(5747) Rambam: "A man should not marry a woman if he intends to divorce her" (Hil Gerushin 10:21, Hil. Issurei Biah 21:28)

The repetition and difference in the two places in Rambam (ibid)
 
The difference between the two sections in Shas on this topic - Yebamot (37b) and Gittin (90a).

Essential concept of the "marriage" between Hashem and Knesset Yisroel
 

Translation:

1. Rambam writes in Hilchot Gerushin (10:21):

“One should not marry a woman if he intends to divorce her. Nor should he maintain her as a wife and live with her, while he intends to divorce her”.

He repeats this is Hilchot Issurei Biah:

“It is forbidden for a person to marry a woman with the intent to divorce her, as it states, (Prov. 3:29): ‘Do not devise evil against your loved one, one who dwells securely with you’. If he notifies her at the outset that he is marrying her only for a limited time, it is permitted”.

Seemingly, one must examine, why Rambam needs to cite this law in two places, in Hilchot Gerushin and in Hilchot Issurei Biah?

One must also understand the differences between the two places:

In Hilchot Gerushin he also cites the law:

“Nor should he maintain her as a wife and live with her, while he intends to divorce her”

Which he does not write in Hilchot Issurei Biah.

Moreover, in Hilchot Issurei Biah:

  1. He cites the source for this from the verse: “Do not devise etc.”
  2. He adds a manner in which this law does not apply: “If he notifies her at the outset . . it is permitted”.

The source for these laws are in two sections in the Talmud (as is cited by the commentators):

  • In Tractate Yevamot (37b) it cites the Beraita of R’ Eliezer b. Yaakov:

“A man must not marry his wife (a woman) if it is his intention to divorce her, for it is written, ‘Do not devise evil against your loved one, one who dwells securely with you’”.

  • In Tractate Gittin (90a):

“R’ Mesharsheya said to Rava: If a man intends to divorce his wife, but she still lives with him and waits on him, what are we to do with him? — (He replied:) We apply to him the verse, ‘Do not devise evil against your loved one, one who dwells securely with you’”.

From that which the verse states the verse: “Do not devise etc.”, both for the law of,

“A person should not marry . . with the intent to divorce her”

as well as for the law of,

“If a man intends to divorce his wife, but she still lives with him and waits on him”,

it proves that even the second law has its source in this verse.

If so, one must understand, why does Rambam cite this verse solely in Hilchot Issurei Biah as a proof for the first law,

(“A person should not marry etc.”)

and not in Hilchot Gerushin (where he cites the two aforementioned laws)?

2. One could say in all this, that it is known that it is not Rambam’s style in Sefer HaYad to cite the sources in Scripture (that the Talmud cites) for the laws that he writes in the middle of the Halachot and chapters (באמצע ההלכות והפרקים)- unless the source is related to the boundary (להגדרת) (and so forth) of the law. This is so, even though in the enumeration of the Mitzvot, in the beginning, he is precise in citing the verses, as well as in the beginning of the law (which are from the Torah).

Therefore, he cites the law specifically in Hilchot Issurei Biah. For there, it is explained, through this verse, the continuation of the law:

“If he notifies her at the outset that he is marrying her only for a limited time, it is permitted”.

For this is the innovation in Hilchot Issurei Biah. For this exemption (according to Rambam’s view) is solely in the law at the beginning of marriage - “One should not marry . . with the intent to divorce her”. However, this does not apply when “she is living with him”. This is derived from the verse that he cites, as will be explained.

The explanation of this is:

When it states, “Do not devise evil against your loved one, one who dwells securely with you”,

(as is understood, that this verse is dealing with an (type of) “evil” that, in and of itself, is permitted from the Torah)

one must clarify:

What is the main prohibition in this? For one can explain this in two manners:

  1. The emphasis of the prohibition of “Do not devise evil etc.” is – the detestable conduct (and bad trait) of a person who devises evil - who deceives his friend and devises evil against him while his friend “dwells securely with you”.
  2. The main prohibition is the pain and shame of his friend. For his dwelling “securely with you” is in a shameful manner (since he is devising evil against him).

The difference in this in Halacha is when the “one devising evil” notifies his friend regarding this, yet his friend is in a condition, that notwithstanding this, continues to dwell with him (for whatever reason):

  • According to the first manner, since he informs him of this, and therefore, from now on, his dwelling with him is not in a manner of being “secure”, and there is no deception, this is no longer a conduct that the Torah prohibits.
  • Whereas, according to the second manner – this knowledge does not remove the prohibition, since in the end (it is difficult for his friend to depart from living with this person who has deceived evil against him, and) he is pained by this. Therefore, there exists in this an element of “Do not devise evil etc.”.

According to this, one could say that the reason for the debate of the codifiers in our case of,

“when she is living with him and serving him and he intends to divorce her”,

is whether it helps when he notifies that his intention is to divorce her:

  • Some say that this notification helps just at the beginning of the marriage. For “if, in the beginning, she acquiesces to be with him, for a certain period, she understands and accepts it. However, if he informs her afterward that he intends to divorce her, what can she do? Her heart is pained within her and we call this, “Do not devise evil against your loved one”. These codifiers maintain like the second aforementioned manner.
  • However, according to many codifiers, the “main prohibition” against devising evil is specifically when “he is “dwelling securely with you”.

Therefore, “if he informs her that is intent is to divorce her, it is well and good. For the verse precisely notes, do not devise evil against your loved one, while he dwells securely with you. However, here he is not dwelling securely with him for he informed him at the onset. Therefore, it does not apply”. This is like the first manner.

3. One could say that according to Rambam’s view, both are included:

In other words, there are two laws in the aforementioned prohibition:

(One law reflecting the conduct of the person, and a second law reflecting the pain of his friend).

These sources are in the two sections of the Talmud:

  • In Tractate Yevamot (in the Beraita of R’ Eliezer b. Yaakov):

“A man must not marry a woman if it is his intention to divorce her, for it is written, ‘Do not devise etc.”,

refers to the law of the prohibition due to the disgrace of the one devising evil. For this is the simple meaning of the verse – doing evil to one’s friend while he is “dwelling securely with you”. This prohibition applies (according to Rambam) specifically when the dwelling with his friend comes, at the onset, in a manner where he is devising evil. In other words, that this is his intent at the beginning of the marriage – in order to divorce her afterward.

  • Whereas in Tractate Gittin, Rava innovates that even,

“if a man intends to divorce his wife, but she still lives with him and waits on him”,

it is not a fitting conduct according to the verse, “Do not devise etc.”. However, this is not (so much) due to the disgraceful conduct of the one who is devising evil, but rather because since his friend is dwelling with him “securely” – it is a shameful and painful condition, since he is devising evil against him, as aforementioned.

(However, this is not the simple meaning of the verse. Therefore, he is precise in his wording and does not say “it is prohibited because of ‘Do not devise evil’ and so forth. Rather, “We apply to him the verse, ‘Do not devise etc. “. For even on this, one is able to apply the verse, “Do not devise etc.”).

It is understood that due to this law of, “Do not devise”, namely the prohibition of causing pain to one’s fellow - that informing her at the beginning, does not help, when she is dwelling with him and serving him and he intends to divorce her, as aforementioned.

These are the two laws in Rambam:

  • In Hilchot Gerushin, Rambam cites the law of Rava (in Tractate Gittin): “He should not maintain her as a wife etc.” - due to causing pain to one’s fellow.
  • Whereas in Hilchot Issurei Biah Rambam cites (from the Beraita of R’ Eliezer b. Yaakov) the prohibition against marrying a woman while he intends to divorce her. Therefore, he needs to cite here the verse, “Do not devise etc.”, and he also writes the law:

“He should not maintain her as a wife . .while he intends to divorce her”.

For his intent here is to define the law and the innovation of the law in this. Namely, that the prohibition of this law is due to “Do not devise” (and not from the reason of causing pain etc.). Therefore, “If he notifies her at the outset . . it is permitted”.

However, it is still not completely resolved:

For from Rambam’s plain wording in Hilchot Issurei Biah,

“It is forbidden to marry a woman with the intent to divorce her, as it states . . If he notifies her etc.”,

it appears that he is coming to inform us, not just the boundary of the Halacha that he already wrote in Hilchot Gerushin (and the manner that it is permitted), but also (and primarily) the essence of the prohibition.

Also:

According to the aforementioned, in the two separate laws in their scope – Rambam should have brought the prohibition of, “A person should not marry a woman with the intent to divorce her” solely in Hilchot Issurei Biah – together with (the source from the verse, and) the exemption.

Whereas, in Hilchot Gerushin, he should have just brought solely the law (of Tractate Gittin) of “if she is dwelling with him etc.”.

4. This can be understood by prefacing the precise change of Rambam’s words in Hilchot Gerushin and Hilchot Issurei Biah:

In Hilchot Gerushin he writes:

“A person should not marry a woman with the intent to divorce her”

Whereas in Hilchot Issurei Biah he writes:

It is forbidden to marry a woman with the intent to divorce her”.

It is probable to say that according to Rambam’s view, there are two different laws here. The law in the “laws of marriage and divorce” (דין בהל׳ אישות וגירושין), and the law in the manner of conduct between husband and wife. This (in Hilchot Issurei Biah) is from the verse “Do not devise etc.”.

The explanation of this is:

The essence and scope of marriage between a man and woman (as it should be) is, in the words of the verse,

“a man shall . . cleave to his wife (ודבק באשתו), and they shall become one flesh”,

a constant acquisition and attachment (קנין ודבקות תמידי), without any detail that brings or causes separation

(The aspect of divorce is something that is innovated after the betrothal and marriage, that weakens and destroys, so much so, that it severs the knot (this “attachment”).

However, when the acquisition and essence of the marriage is in a manner that there is a detail that is opposite of “Cleaving”, whether it is in the beginning of the marriage, or after time, this is a deficiency in the essence of the marriage.

This is the essence of the Halacha in Hilchot Gerushin,

“A person should not marry a woman with the intent to divorce her. Nor should he maintain her as a wife and live with her, while he intends to divorce her”.

In other words, although there is no prohibition, nevertheless this is not an aspect of true “marriage” according to Torah.

Therefore,

“A person should not marry a woman . . Nor should he maintain . . while he intends to divorce her”.

Therefore, Rambam continues in that same Halacha:

“A man should not divorce his first wife unless he discovers an incident of sexual misconduct,, as (Deut. 24:1) states: ‘When he finds evidence of sexual misconduct etc.’. One should not hurry to divorce one's first wife”.

For the theme of these laws is one – the scope of the aspect of marriage, in and of itself – “cleaving to one’s wife” which does not allow room for its opposite (division), at all.

 However, there is an additional law of

"Do not devise evil against your loved one, one who dwells securely with you."

This is a prohibition in one’s conduct with his fellow, and also in the conduct between a husband and wife.

Namely, that

It is forbidden to marry a woman with the intent to divorce her”.

Therefore, Rambam writes this law in Hilchot Issurei Biah, in the chapter where it explains the scope of the conduct between husband and wife, toward each other, between them (as well as between their children etc.)

5. One could say that Rambam’s source is from the two statements in the Talmud - the Beraita of R’ Eliezer b. Yaakov in Tractate Yevamot and the question of R’ Mesharsheya (and Rava’s answer) in Tractate Gittin:

  • In Tractate Yevamot, R’ Eliezer b. Yaakov‘s statement comes in continuation to many statements concerning forbidden marriages (איסורי חתנות) (due to concerns and obstacles (חששות ותקלות) that will arise from them).

These laws are indeed brought by Rambam in the following laws, there in Hilchot Issurei Biah. In continuation to this, comes the statement regarding the prohibition toward one’s wife,

“A person should not marry his wife (a woman) with the intent to divorce her because it states, ‘Do not devise evil against your loved one, one who dwells securely with you’”.

  • However, in Tractate Gittin, in the continuation of the section and the debate in the clarification of the debate between Beit Shammai, Beit Hillel and R’ Akiva- concerning when it is permitted to divorce, that is derived from the verses in “Parshat Gerushin” (בפ׳ גירושין) (Our Parsha: Deut 24:1)

“Should she not find favor in his eyes because he found in her some unseemly matter”.

And in continuation to R’ Papa’s question:

“if the husband found in her, neither forbidden sexual intercourse nor any other matter, (but divorced her anyway, what is the Halacha? Is the divorce valid?)

Rava answered him:

“The answer can be derived from what the Merciful One reveals in the Torah with regard to one who forced her: ‘He may not send her away all his days’. Specifically, in that case, the Merciful One revealed that the husband may not divorce her. But here, in this case, what he did, he did”.

(afterward the Talmud continues (in the Beraita of R’ Meir) many opinions (characteristics) regarding a husband and wife – with regard to divorce).

Seemingly, what is the relevance of this section of the Talmud, whose subject is - when it is permitted to divorce, and whether divorce helps – to the question of R’ Mesharsheya to Rava,

“If he intends to divorce her and she is living with him and serving him, what is the Halacha?”  

(In other words, if there is a punishment in the matter, or not)?

It is expressly stated in the Beraita of R’ Eliezer b. Yaakov that,

“A person should not marry a woman with the intent to divorce her because it states, ‘Do not devise etc.’”.

Therefore, what is R’ Mesharsheya‘s doubt in the matter?

From this Rambam proves that the question of R’ Mesharsheya is whether this is from the essence of the Biblical Parsha of marriage (and divorce), and not just a particular prohibition due to the reason of, “Do not devise etc.”.

The intent of Rava’s answer,

“We apply to him the verse, ‘Do not devise etc.’”

is not that the prohibition is due to, “Do not devise”.

(For if so, is should have stated, “she should not live with him . . because it states, ’Do not devise’”, or “It is forbidden because it states, ‘Do not devise’”, and so forth).

Rather, it is because this verse is a revelation that this is not a proper marriage. For in marriages such as these,

“We apply to him the verse, ‘‘Do not devise evil against your loved one, one who dwells securely with you’”.

Thus, we find that the difference between the Beraita of R’ Eliezer b. Yaakov in Tractate Yevamot and the statement of Rava in Tractate Gittin is:

  • In Yevamot the verse, “Do not devise evil against your loved one etc.” is like a source for the law: “A person should not marry a woman with the intent to divorce her”.
  • Whereas in Tractate Gittin this is a revelation of the scope of marriage according to Torah. Namely, that during the entire time of marriage, the “clinging to one’s wife” is complete without any scintilla of division etc.

According to this, the reason that Rambam, in Hilchot Gerushin does not bring the clause that

“If he notifies her at the outset . . it is permitted”

is understood.

For this exemption in “notifying her” (הודיעה) just applies to the prohibition of, “Do not devise evil against your loved one, one who dwells securely with you”.

However, this is not applicable and learned regarding the lacking in the essence of the scope of marriage (and divorce). For even when he informs her that he intends to divorce her, this degrades (גורע) the essence of the aspect of marriage (and divorce).

6. One could say, in the Pnimiyut of the matter:

Husband and wife, in all their details here - below in this world, are symbolic (and come and descend from) the “husband and wife” – G-d (husband) and Bnei Yisroel (wife) as is explained at length in Shir HaShirim, and in the Midrashim of the Sages.

The same is related to our case:

Marriage (and divorce) of a husband and wife, comes and stems from the marriage, as it were, between G-d and Knesset Yisroel (the Jewish People). This is like the text of the blessing that we recite at the betrothal of each one of Yisroel,

“(Blessed are You) who sanctifies His people Israel through chuppah and kiddushin”.

In other words, the marriage (betrothal and marriage) of each person of Yisroel, is a part, as it were of the sanctification of His people Yisroel - from the general “marriage” between G-d and His people (Knesset Yisroel).

According to this, it very nicely fits why among the boundaries of marriage – is that they are an eternal bond.

For the marriage between G-d and Knesset Yisroel, as it states in the verse,

“’on the day of his wedding’ (between G-d and Bnei Yisroel) – this is Matan Torah”-

is an eternal connection (that is impossible to have any severing, G-d forbid).

7. However, according to what has been explained, in the scope of the prohibition of, “marrying a woman with the intent to divorce her”. Namely, that this is (not just unseemly conduct on the part of the husband, but rather that this is) a deficiency in the essence of marriage – there must be an explanation with regard to the marriage of G-d and Knesset Yisroel:

It is known that the entire aspect of Galut is similar to the aspect of divorce, as it states in the Midrash, “I judged them with divorce”, and as it states in the Talmud,

“Knesset Yisroel (the congregation of Yisroel) answered the prophet . . a woman divorced by her husband, does this person have any claim upon that person?“

Since G-d knew that there would be the aspect of Galut - we therefore find that there is, as it were, an element of, “A person should not marry a woman with the intent to divorce her”.

Plainly, one could say that it is not applicable to say, in this regard, that “He had intent to divorce her”. For the entire aspect of Galut is just a result of Yisroel’s conduct, and there is complete free-choice (בחירה חפשית בשלימות). It is just “Due to our sins (our own) we have been exiled from our Land”, and absent our sins, there would not be any aspect of divorce.

(Although it states in the Torah,

“When you have children and grandchildren, and have grown old in the land; and you will be corrupt . . and the L-rd  will disperse you among the peoples etc.”

which is stated in assured terms (that this will certainly happen), and the Torah preceded the Creation of the world. Therefore, we find that already at the time of Matan Torah it was, as it were, “in his mind to divorce” afterward (when “you have grown old in the land etc.”)

Nevertheless, this is not a question.

For:

  1. These verses were said after Matan Torah, in the fortieth year. As long as during this entire time it was not revealed in G-d’s Speech, there was still able to be a change. Additionally,
  2. Even if one were to say that this is tantamount to “speech”, even after it was actually said, Rambam writes that regarding words of retribution that a prophet says:

“If his words do not come true, this does not nullify the validity of his prophecy. . For the Holy One, Blessed be He, is slow to anger, abundant in kindness, and forgiving of evil. Thus, it is possible that they will repent and they will be forgiven”).

However, it is still not sufficiently resolved.

For since, in the end, G-d knew at the time of Matan Torah that there would be the aspect of Galut, Therefore, even if one were to say that this is not in the scope of, “his intent (and will) to divorce”. For free-choice was given to man to conduct oneself in a manner that averts Galut (and this is G-d’s Will) –

Nevertheless, in the end, the marriage (from G-d’s side) was not done in a manner of an eternal knot – an everlasting knot. Therefore, we find that there is a lacking, G-d forbid, in the marriage between G-d and Yisroel?

8. The explanation of this is:

In the Talmud there, it continues that G-d says to Knesset Yisroel,

“Where is your mother’s writ of divorce, with which I sent her away?”

In other words, that there was no divorce (“writ of divorce”/ ספר כריתות).

Therefore, one must say that when it states in the Talmud, before this, that

“Knesset Yisroel responded to the prophet with an eternal answer . . a woman divorced by her husband, (does this person have any claim upon that person)?“,

this is because Galut is an aspect of divorce (solely) on the part of Knesset Yisroel. For in the time of Galut, Bnei Yisroel do not feel G-d’s closeness toward them. Therefore, they claim that this is a condition of a “wife whose husband divorced her”.

However, the truth is that even in the time of Galut, the marriage was not severed, G-d forbid, between G-d and Knesset Yisroel (it is just that it is not displayed in a visible manner).

On the contrary, the entire intent of G-d’s hiding His face, in the time of Galut, as it states,

“And I will surely conceal My face etc.”

is just in order that,

“And from there you will seek the L-rd your G-d, and you will find Him, if you seek Him with all your heart and with all your soul.. then you will return to the L-rd your G-d and obey Him”.

That through this, the connection and “cleaving” (ודבק) is revealed more deeply, that even when Bnei Yisroel are scattered among the nations, they are the “wife” of G-d and bound to him.

Through Bnei Yisroel conducting themselves like a “proper wife” (אשה כשרה) and showing their “attachment” with G-d (by keeping Torah and Mitzvot) - this results - in “measure for measure” - that G-d’s conduct with Yisroel is also in a likewise manner. That (even) all the nations see that there is no divorce between G-d and Bnei Yisroel, and they clearly see (בעליל) G-d’s protection and providence over Yisroel, and that He, blessed be He, fulfills all their needs (her sustenance, her clothing and her conjugal rights/honor) in a manner that even in (the end of) the time of Galut, there is “much good to the house of Yisroel”, literally.

We will immediately and instantly go to the true and complete Geulah. For then the completeness of the marriage between G-d and Knesset Yisroel will be revealed, as it states

“And it shall come to pass on that day, says the L-rd, you shall call Me ‘Ishi’ (my Husband), and you shall no longer call Me ‘Baali’ (my Master)”

(Note: You shall worship Me out of love and not out of fear. ‘Ishi’ is an expression of marriage and the love of one’s youth, whereas ‘Baali’ is an expression of mastership and fear – Rashi)

with the coming of our righteous Moshiach, speedily in our time, mamosh.

M’sichas Shabbat Parshat Korach,5745, Lag b’Omer 5746

Links:
https://www.sie.org/templates/sie/article_cdo/aid/2628356/jewish/Divorce-of-Husband-and-Wife.htm

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