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December 28, 2014 / 6 Tevet, 5775
 
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Can One Marry A Married Woman?


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This column is dedicated to the refuah sheleimah of Shlomo Eliezer ben Chaya Sarah Elka.

Both of this week’s parshiyos discuss the various arayos – forbidden relationships. The Gemara in Kiddushin 67b states that if one attempts to perform kiddushin on one of the arayos, the kiddushin is invalid. The Gemara’s conclusion is that this is so because Rabi Yona derived by means of a hekish that kiddushin will not be valid on any of the arayos with whom a relationship warrants koreis or death. A married woman is considered one of the arayos with whom a relationship would warrant death. Therefore, kiddushin will not be valid if performed on a married woman.

The Pnei Yehoshua (Gittin 43a) says that the reason why one cannot perform kiddushin on a previously married woman who is not divorced and whose husband is still alive is because she is considered to belong to her first husband. The same way that one cannot buy something that belongs to someone else, so too one cannot perform kiddushin on a woman who “belongs” (not in a monetary sense) to someone else.

With this explanation the Pnei Yehoshua explains why another man cannot perform kiddushin on a shifchah charufah who is married to a man who is half-free and half-slave. In this case the married woman is not considered one of the arayos with whom a relationship would be deserving of koreis; rather, it would only warrant a lav. In such a case kiddushin should be valid, for kiddushin is only not valid on arayos with whom a relationship would warrant koreis. Kiddushin will generally be valid when performed on someone who is only forbidden by means of a lav. However, since a shifchah charufah who is married to a man who is half-free and half-slave is considered as “belonging” to her husband, no other man may perform kiddushin on her.

The Avnei Miluim asks on the Pnei Yehoshua the following question: The aforementioned Gemara in Kiddushin initially attempts to derive that kiddushin will not be valid when performed on one of the arayos by means of a banyan av from the erva of one’s wife’s sister. The Gemara rejects this because we would not be able to derive from there that kiddushin would not be valid on a married woman who is different from other women since she has a way of becoming permitted to have kiddushin during her husband’s life – by means of a get. If we assume, like the Pnei Yehoshua, that another man cannot perform kiddushin on a married woman because she “belongs” to her husband, why is the Gemara concerned with a source that kiddushin will not be valid when performed on a married woman? We should know that kiddushin cannot be performed on her because she “belongs” to her husband – as the Pnei Yehoshua posited.

Perhaps we can explain the opinion of the Pnei Yehoshua with the following explanation given by the Pnei Yehoshua on a similar topic: The Rambam (Hilchos Ishus 7:16) says that as the Gemara concludes, one may perform kiddushin on an unborn fetus, provided that the woman is recognizably pregnant. This is because a father has the right to marry off his daughters while they are minors. Thus, if a man says to another man, “if your wife gives birth to a girl, let her be mekudeshes to me,” the kiddushin is valid. The Rambam adds that although the Gemara does not explicitly require the following, he feels that when the girl is born, the man must perform a second kiddushin as well.

The Pnei Yehoshua (Kiddushin 62b) explains that the reason for this is because there are two aspects of every kiddushin – the kedushah aspect and the kinyan aspect. Even though regarding hekdish we consider a fetus to be in this world and thus able to have kedushah on it, as is evident from the Gemara in Temura 10a, concerning kinyanim we view a fetus as not being in this world. So even though when one is mekadesh a fetus, the kiddushin is valid from a kedushah standpoint; regarding the kinyan aspect the kiddushin is not valid. Therefore the Rambam was mechadesh that the kiddushin must be repeated after the girl is born, in order that the kiddushin will be valid from a kinyan standpoint.

Based on this we can answer the Gemara in Kiddushin from the question of the Avnei Miluim. The Gemara in Kiddushin was searching, from a kedushah viewpoint, for a source that kiddushin cannot be performed on a married woman. The Gemara knew that kiddushin would generally not be valid when performed on a married woman because she “belongs” to her husband. But there are cases whereby a woman is married and only has the kedushah aspect, not the kinyan aspect, e.g. a fetus. The Gemara wanted to prove that even in this case, the kiddushin would not be valid because the woman is nonetheless considered to be one of the arayos.

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