Mar 20, 2018

Interesting Psak: no chalitza does not make mamzerim

Mr 1 died in a car crash, and left his wife a widow with no children. Mrs tried to persuade her brother in law to come to the beis din and perform chalitza so that she can move on with her life and find someone to spend the rest of her life with and have children, etc. Brother In Law refused and she could not persuade him otherwise.

Eventually Mrs found someone anyway, despite never having had chalitza performed to release her bond. When beis din refused to allow them to marry, Mr 2 and Mrs went to Cyprus to have a civil wedding, and then returned to Israel. Eventually they had a couple of children.

And now they wish to divorce.

Mr 2 and Mrs went to beis din to take care of the gett, even though they had only married civilly. When they went to beis din, the beis din decided to look into the kashrut of the two children and determine if they have the status of mamzer or not. The question is does the child of a woman who had not had yibbum or chalitza performed for her have the status of mamzer - is she considered still married, thus an eishes ish, or not. While she is not technically married to anyone, she is also not single and available, as she has a bond connecting her to the dead husband and his brother.

The beis din in Netanya worked on this unusual case and came to the conclusion that the children are kosher and when they get older they will be able to marry any other kosher Jewess, like anybody else in the Jewish community - they are not mamzerim, neither mideoraisa or drabanan.

Haredim10 brings the case and the psak but what is sorely lacking is that the site does not enlighten us as to how the psak was arrived at. I think the logic behind the psak is probably the more interesting aspect of the case.

It seems to me that her lack of yibbum/chalitza does not keep her as eishes ish and even if she did something wrong by living with Mr 2 as husband and wife. Also, the fact that she married civilly and nto halachically should have no bearing on the matter. Even had they not married, a single man having children with a married woman, those children would be mamzerim, so it seems to me the civil marriage is irrelevant and is not what saved them in this case.

But I would really like to hear the logic and proofs employed by the dayyanim in deciding this case.



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11 comments:

  1. If it's that easy, why have there been such efforts to secure chalitzot over the years?

    Perhaps they found some problem with the *original* marriage, as is often done to free potential mamzerim.

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    Replies
    1. Because it is absolutely FORBIDDEN to remarry without chalitza, even if the children are not mamzerim.

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    2. Of course, you're right. But the issue is always presented as being the same. Certainly you must admit that this is a chiddush.

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    3. I actually thought that it was obvious that the children weren't mamzerim - I was surprised that it was even a doubt.

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    4. Isn't this an isur lav and it's a macholokes tanaim if the kids are mamzeirim and we pasken they're not? I'm also surprised that there was even a doubt here. I feel like we may be missing something.

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    5. If I recall correctly (and I probably don't), Rabbi Akiva is the lone voice who stated that even relationships that are not חייבי מיתה create ממזרים. We definitely do not Pasken this way. If we did, many, if not most, secular Jews would be ממזרים, as their parents were unlikely to have been careful of טהרות המשפחה.

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    6. Avi, Almost correct. Issur Kareis also causes Mamzerus except for Niddah.

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  2. There is no kares for it
    so kids aren't mamzeirim.
    https://www.yeshiva.org.il/wiki/index.php?title=%D7%9E%D7%99%D7%A7%D7%A8%D7%95%D7%A4%D7%93%D7%99%D7%94_%D7%AA%D7%9C%D7%9E%D7%95%D7%93%D7%99%D7%AA:%D7%99%D7%91%D7%9E%D7%94_%D7%9C%D7%A9%D7%95%D7%A7

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    Replies
    1. Thanks for posting the link, very interesting. But according to the link you posted, there is a Machloket Achronim what the status of the child is, although very glad that the Rabbanut was able to posken L'Kula in this case. However it is not so clear cut.

      שומרת יבם שילדה לאחד מן השוק, אם הוולד ממזר, נחלקו בו תנאים, אמוראים וראשונים (יבמות מט ב, צב א; קידושין עו א). להלכה נחלקו ראשונים:

      יש פוסקים שהוולד אינו ממזר (רי"ף גיטין פ א; שו"ע קנט ב דעה א), מהם יש שכתבו שאף כשר הוא (רמב"ם יבום ג יט, כשנישאת בשוגג), ויש מהם שכתבו שאין הבנים ממזרים, אבל הם תועבים (הקדמת בה"ג בהקדמה, מהד' הילדסהיימר ירושלים ח"ג עמ' 21).
      ויש פוסקים שהבן ספק ממזר (אור זרוע יבום תרמז; ביאור הגר"א בשו"ע קנט ס"ק יג בדעת השו"ע), ויש פוסקים שהוא ממזר (טור שם בדעת הרא"ש) מדרבנן (תוספות יבמות צב ב ד"ה אבל, בשם ר"י; דעה ב בשו"ע שם).

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  3. I also don’t understand why this is complicated. Rare, ok.

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