Translation:Shulchan Aruch/Even ha-Ezer/42

From Wikisource
Jump to navigation Jump to search

Paragraph 1- A woman can only be married with her consent. If one marries a woman against her will, she would not be married. If a man was compelled to marry against his will, the woman would be married. There are those who say she should not be married. Thus, the marriage is uncertain. If the woman initially said to marry her, and the man threw the marriage money into her arms and told her “you shall be married to me,” and she shook it off her clothing within kidei dibur of the throwing of the marriage item and says she was just kidding around initially, she would still be married. When it comes to marriage we do not follow circumstantial evidence and compelling evidence that a woman did not intend to get married. If a man forcibly took a woman’s hand without her consent and married her and she did not throw away the marriage item, although the initial marriage was compelled and he married her without specifying and did not say anything, because he initially discussed marriage with her, she would be married. If the man owed her money and she told him to give her the money and when he started giving it to her he said “you shall be married to me,” and she threw the marriage money from her hand, she would not be married.

Paragraph 2- If one marries without witnesses, or even with a solo witness, the marriage is not valid, even if both parties admit to the marriage. Even if the man married her without a solo witness and then married her again in front of another solo witness but outside the presence of the other, she would not be married. There are those who are stringent where they married in the presence of a solo witness and they both admit. If one of the parties contradicts the witness, there is no concern. In a pressing situation where the woman will be chained, one can rely on the lenient view. There is no distinction between a case where the solo witness says the woman got married only in front of him or where he says she got married in front of two and he was the only one who saw while the others say they did not. Likewise, if one married in front of two witnesses and one of them was a relative, it is as if he married in the presence of one witness.

Paragraph 3- The man and women getting married must see the witnesses. If the two witnesses saw them from the window and they can see but either the husband or wife cannot see them, the wife would not need a get. Even if the witnesses heard her say she was accepting the marriage she is able to say she knew marriage without witnesses is ineffective and she intended to joke around. If she contradicts them, however, saying she never accepted the marriage while the witnesses testify she did, she is no longer believed to say she was joking and the marriage would be valid.

Paragraph 4- If one married in the presence of witnesses, even if he did not say “you are my witnesses,” the marriage would be effective. Even if he designated witnesses, others who saw the incident may testify. The witnesses must literally see the actual giving of the marriage item to her hand or possession. Even if they heard the man say “marry me with this item,” and she later produces the item the marriage is not valid until they see the actual transfer. We would not care about compelling circumstantial evidence. If one married via a hole in the wall, such as where a woman stuck our her hand through the wall and a man came gave her a marriage item, and the hole was narrow and it was impossible to see her at the time of the marriage, and the woman says she did not hear the man say he was marrying her, she would be believed with a migu that she could have said it was not her hand, but belonged to someone else, so long as the witnesses do not contradict her. Any testimony which has not been investigated in court is not considered testimony with respect to marriage. Thus, even if witnesses said outside of court that a woman was married, they can retract in court and say she was not married, and vice versa. Interrogation is not required for marriage witnesses unless it is a matter where it seems like fraud is involved. If they discovered a document that stated “so-and-so married so-and-so,” and witnesses were signed on it, so long as the document is not verified there is no reason to be concerned that there was a marriage, not like those who are stringent on the matter.

Paragraph 5- If one marries with witnesses who are biblically disqualified, the marriage is not valid. With respect to rabbinically disqualified witnesses or witnesses whose biblical disqualification is uncertain, however, if the husband wants to remarry with valid witnesses he may do so and if he does not want to, the woman would require a get out of uncertainty. Even if the woman denied it and says the man did not marry her, we would compel the husband to give a get. The same rule applies for all uncertain marriages. If the man wants he may remarry properly and if he does not want to marry her, the woman would require a get out of uncertainty. If a third party came and married her, she would have an uncertain marriage with such third party and would require a get out of uncertainty from both men. Alternatively, the first husband may divorce her and the second husband can marry her. The second husband cannot divorce her and have the first husband marry her, however. If one is suspected of violating the rules of prohibited relations, even if there are no witnesses of an actual sexual encounter but is merely suspect, he is disqualified from being a witness on behalf of a woman, whether for marriage or divorce purposes. If one marries in the presence of witnesses who are biblically disqualified due to their wickedness, such as apostates or other wicked individuals, there are those who say we are concerned the marriage is valid because the witnesses may have repented. There are those who are lenient. Those apostates who had to become apostates out of fear and it is impossible to protect themselves but they do keep the commandments in private, however, are valid witnesses. There are those who say that this rule that we said that we are concerned a marriage is valid where the witnesses are disqualified rabbinically is only where the marriage is biblical. If the marriage is rabbinical, however, and the witnesses are rabbinically disqualified, we would not be concerned for the marriage at all.