011 - הִלְכוֹת גֵּרוּשִׁין פֵּרֶק יא

Laws of Divorce, Chapter 11

1. One may not marry a minor girl. If someone marries a minor orphan girl, and she does not wish to remain with her husband, she may refuse him and leave, and she does not require a get from him, because the marriage of a minor is not a fully valid marriage, as we have explained. Similarly, a minor girl whom her father married off and who then became widowed or divorced while still a minor is considered like an orphan during her father's lifetime; and if she is married as a minor during her father's lifetime, she may refuse her husband.

2. A deaf-mute woman—although her marriage is by rabbinic law, like the marriage of a minor—they did not institute for her the option of refusal, so that people would not refrain from marrying her.

3. The minor girl may refuse—whether from betrothal or from marriage, whether in the presence of her husband or not in his presence; and just as she may refuse her husband, so too she may refuse a yavam. She may refuse this husband and marry another, and refuse the second, and likewise the third—even many times: as long as she is a minor, she may refuse. And a minor who did not refuse, even though she is married, and then became betrothed to another while still a minor—her betrothal is itself her act of refusal.

4. Until when may a girl refuse? As long as she is a minor—until she becomes a na'arah (young woman), or until it is known that she is an aylonis (incapable of developing signs of maturity). In what case is this said? When her husband did not have relations with her after she became twelve years and one day old. But if she reached this age and had relations, since intercourse effects acquisition by Torah law, as we have explained, she can no longer refuse; and she does not require examination for refusal, for the presumption is that she has developed signs of maturity.

5. If she was examined and no signs of maturity were found—since she had relations after reaching the age appropriate for signs, we are concerned that perhaps she developed signs and they fell off; therefore, she requires a get out of doubt. And if she refused after being examined and then became betrothed to another, she requires a get from him out of doubt; and if she married, she must leave both men, and the child is a doubtful mamzer from both.

6. A minor who did not refuse and reached maturity—even if her husband did not have relations with her after she became twelve years and one day old—she can no longer refuse, for she has matured; and she requires a get by rabbinic law, since he did not have relations with her after she reached the age of na'arus, so we are concerned that perhaps she developed signs and is doubtfully married, and he did not have relations with her after she matured so that she would be a fully married woman; thus, she only requires a get from the marriage of her minority, which is by rabbinic law. Therefore, if she remained and became betrothed after she matured, the second betrothal takes effect; and if the first husband divorces her, the second may marry her. But if the second divorces her, the first should not remarry her, lest people say he took back his divorcee after she was betrothed to another. And if the second had relations with her before the first divorced her, she must leave both, for she is like a woman who heard her husband had died, remarried, and then her husband returned. The child from the second is not a mamzer; but if the first had relations with her before the second divorced her, the child is a mamzer.

7. What is the age of a minor girl who requires refusal? From six years old to ten years old, she is examined according to the sharpness of her mind: if she knows how to guard her betrothal and that it is a betrothal—not that she guards it as she would guard a nut or a date or the like—then she requires refusal; but if she does not know how to guard her betrothal, she does not require refusal, but goes to her mother's house as if she was never betrothed at all. If she is younger than six—even if she knows how to guard, she does not require refusal. If she is older than ten—even if she is extremely foolish, she requires refusal. And anyone who was married off by her brothers or relatives or mother, without her knowledge—she does not require refusal.

Laws of Divorce, Chapter 11

8. How does a minor girl refuse (me’enes)? She says before two people, “I do not wish to be with so-and-so, my husband,” or “I do not wish for the kiddushin with which my mother or brother married me,” or similar statements. Even if guests are reclining in her husband’s house and she is standing and serving them drinks, and she says, “I do not want so-and-so, my husband,” this is considered refusal (me’un).

9. The two before whom the minor girl refuses write for her: “On such-and-such a day, so-and-so, daughter of so-and-so, refused before us her husband so-and-so,” and they sign and give it to her. This is the actual text of the get me’un (document of refusal). A get me’un is not like a get of divorce, whose delivery effects the divorce. It does not require writing for her sake, nor delivery, nor any of the legal requirements of a get of divorce. The standard formulas of a get are not written in it, lest it appear to be a get of divorce, since it is only an act of Beis Din.

10. The two before whom she refuses must recognize her and the husband whom she is refusing. Therefore, anyone who saw her refuse and heard her refusal may write her a get me’un, even if they do not recognize her. The Jewish people have already adopted the practice of writing a get me’un in this form:

11. “On such-and-such a Shabbos, such-and-such a day of the month of such-and-such a year according to such-and-such a reckoning, so-and-so, daughter of so-and-so, refused before us and said: ‘My mother or my brother misled me and married me off or betrothed me while I was a minor to so-and-so, son of so-and-so. Now I have revealed my intent before you that I do not desire him and do not wish to remain with him.’ We examined this so-and-so and determined that she is still a minor, and we wrote, signed, and gave it to her as proof and clear evidence.”

12. If a man divorces his wife and she becomes betrothed to another—even if the second husband did not have relations with her—she becomes forbidden to the first husband. If the first husband remarries her and has relations with her, he is liable for lashes and is compelled to divorce her, as it is stated: “Her first husband… may not take her again…” (Devarim 24:4).

13. If she committed adultery with another man while divorced, she is permitted to return to her first husband, as it is stated: “She leaves his house and goes and becomes another man’s wife” (Devarim 24:2)—it is her becoming another man’s wife, meaning kiddushin, that prohibits her from returning to her first husband.

14. Included in this prohibition is that any woman who commits adultery while married becomes forbidden to her husband, and he is liable for lashes because of her, as it is stated: “After she has been defiled” (Devarim 24:4), and she has indeed been defiled—unless she was a Jewish woman who was raped. Therefore, any woman who becomes forbidden to her husband due to warning and seclusion (kinui and setirah)—if he has relations with her, he is punished with disciplinary lashes; and if he transgressed and remarried her after divorcing her, he must divorce her with a get.

15. If a deaf-mute divorced his wife by gesture, as explained, and she went and became betrothed to another deaf-mute, and certainly if to a hearing man—she is forbidden to return to her first husband, the deaf-mute. But if the wife of a hearing man was divorced and married a deaf-mute, and then was divorced, she is permitted to return to her first husband, the hearing man.

16. A minor girl who refuses a man is not considered divorced from him; her status with the husband she refused is as if he never married her at all: she is permitted to his relatives, and he is permitted to her relatives, and she is not disqualified from marrying a Kohen. If she marries another and he divorces her, or dies, or she refuses him, she is permitted to return to the first. Moreover, even if the first divorced her and remarried her, and she refused him, and then married another after refusing him, and the second divorced her—she is permitted to return to the first. For anyone who leaves through refusal, even if a get preceded it, is considered as if she was never divorced from him with a get, and she is permitted to return to him. But if one divorces a minor girl with a get, and she marries another and then refuses the second, she is forbidden to return to the first, because she left him with a get, even though she left the second with refusal; and certainly if the second divorced her or died. Similarly, she is forbidden to the father, son, or brother of the first husband, like other divorcees, even though she left the second with refusal.

Laws of Divorce, Chapter 11

17. A woman who refuses the yavam is forbidden to his father, because she appears as his daughter-in-law at the time his son died. However, she is permitted to his other relatives. Therefore, if she refused one of the brothers-in-law, she is permitted to his brother.

18. Any woman who is divorced or widowed may not marry or become betrothed until she waits ninety days, not counting the day she was divorced or the day her husband died, nor the day she became betrothed; this is so it will be known whether she is pregnant or not, to distinguish between the offspring of the first husband and the offspring of the latter.

19. For a divorced woman, the count begins from the day the get is written, even if it was conditional, or even if it did not reach her hands until several years later—the count begins from the day it was written, since from the time it was written for her, he no longer secludes himself with her.

20. It is a decree of the Sages that even a woman who is not fit to bear children, and even one who was divorced or widowed from betrothal, must wait ninety days; even a minor, or an elderly woman, or a barren woman, or an aylonis, and even if her husband was overseas, or was ill, or imprisoned, even a virgin from betrothal—all must wait ninety days.

21. A maidservant who was freed, and a convert who converted, must wait ninety days; even a convert and his wife who converted together, we separate them for ninety days, in order to distinguish between offspring conceived in holiness and offspring not conceived in holiness. Likewise, a beautiful captive—even though the Torah gave her thirty days for her own adjustment, she must wait ninety days for the sake of the child; and the thirty days are included in the ninety.

22. A woman who refuses her husband does not need to wait ninety days; the decree was made only for a divorced woman. Likewise, a woman who committed adultery does not need to wait, because she guards herself so as not to become pregnant; likewise, a woman who was raped or seduced does not need to wait.

23. If someone married a woman in error, and it became known that she was forbidden to him, and Beis Din removed her from him—if she was a minor who was not fit to bear children, she does not need to wait, for this is an uncommon occurrence, and the Sages did not decree in cases that are not common.

24. One who betroths a woman within ninety days is placed under a ban; if he betrothed her and fled, he is not placed under a ban. If he married her within ninety days, we separate them until after the time has passed; and he may remain with his wife.

25. Likewise, the Sages decreed that a man may not marry a woman who is pregnant with another man's child, or who is nursing another man's child, even though the father of the child is known: a pregnant woman—lest he harm the child during relations, since he is not concerned for another man's child; a nursing woman—lest her milk be ruined, and he will not be careful to restore her milk with things beneficial for milk if it is ruined.

26. The period of nursing is twenty-four months, not counting the day the child was born or the day she becomes betrothed.

27. Just as it is forbidden to marry, so too it is forbidden to become betrothed until after this period; even if she gave her child to a wet nurse, or weaned him within the twenty-four months, she may not marry. If her child died, she is permitted to marry, and we are not concerned that she might kill him.

28. If one transgressed and married a pregnant or nursing woman within this period, he must divorce her with a get, even if he is a Kohen; and if he is a Yisroel, he may remarry her after the twenty-four months of nursing. If he married her and fled, and after the period returned, he may remain with his wife, and there is no issue. If he betrothed a pregnant or nursing woman, we do not compel him to divorce her; but he should not marry her until after the nursing period, or until the child dies.