Siman 119

It is written: "When a man takes a wife and marries her, and it shall be that if she finds no favor in his eyes because he found in her a matter of immorality, and he writes her a scroll of severance and places it in her hand and sends her from his house, and she departs and becomes another man's." And we learned at the end of Gittin: Beit Shammai say a man should not divorce his wife unless he found in her a matter of immorality, for they interpret the verse according to its plain meaning: "if she finds no favor in his eyes" because "he found in her a matter of immorality." And Beit Hillel hold even if she burned his food, for they interpret the verse thus: "because he found in her a matter of immorality"—either immorality or another matter in which she sinned against him. And Rabbi Akiva holds even if he found another more beautiful than her, for he interprets the verse thus: "and it shall be if she finds no favor in his eyes," meaning the favor of beauty, or "he found in her a matter of immorality." And the halacha is according to Beit Hillel, that if she sinned against him he may divorce her, but he should not divorce her in order to take one more beautiful than her (Tur).

The prophet Malachi said, "For I hate sending away," and our sages, of blessed memory, said (ibid.): one said, "If you hate her, send her away," according to R. Akiva (Rashi); and one said, "Hated is the one who sends away before the Omnipresent" (ibid.). And they do not disagree: this refers to a first marriage, and that refers to a second marriage, as R. Eliezer said: Anyone who divorces his first wife, even the altar sheds tears over him, and he derived it from the verse there. And specifically when he divorces her against her will, but when he divorced her with her consent, we have no concern regarding it (Beit Yosef). And according to this, for us, since there is the Cherem of Rabbeinu Gershom against a get against her will, this law does not apply (see Chelkat Mechokek subsection 2, that even in such a case he should not hasten to divorce her).

According to what I have written, it is explained that Beit Hillel only spoke regarding a first marriage, but regarding a second marriage, they hold like Rava Akiva, that even if he found another more beautiful than her, he may divorce her. However, from the words of the Tur, it is explained that according to Beit Hillel, whether in a first marriage or a second marriage, he should not divorce her for the sake of another more beautiful than her, for the verse "because he found in her an unseemly matter" refers to both of them (Prisha). And also in a second marriage, he shall not divorce her unless she burnt his food or the like, such that he has a hatred toward her, and regarding this the prophet says, "if you hate [her], send [her] away." And so it stands to reason, for regarding another more beautiful than her, it is not relevant to say of her that he hated her (Bach). However, in a first marriage, even though the Torah permitted him to divorce her in such a case, nevertheless, he should not hasten to divorce her, and the one who sends away is hated, unless he found in her an unseemly matter or licentiousness. And so it is explained from the words of the Rambam, chapter 10 of Hilkhot Gerushin, law 21, see there. And such is the intention of our teachers, the authors of the Shulchan Arukh, in section 3 (and this is what our teacher, the Rema, emended, "but otherwise etc." to explain the intention of the Beit Yosef, that he does not rule like Beit Shammai; and that which the commentators questioned is answered, and this is the intention of the Gra, and examine it carefully):

Some say that this prohibition is only regarding a married woman and not a betrothed woman, for he can divorce a betrothed woman in any circumstance. This is also the implication of the plain meaning of the verse, which deals with after marriage, as it is written: "When a man takes a woman and marries her." This is also implied by the words of Beit Hillel in the Mishnah, who said: "Even if she burned his food," and this is after marriage when she cooks for him. Nevertheless, some say there is no difference between a betrothed woman and a married woman (both opinions are in the Mishneh LaMelech, chapter 10, see there). According to this opinion, one must say that the verse and the Mishnah stated the common way of things. Likewise, some say that a "first pairing" is only when she was a virgin, for "a woman only makes a covenant with the one who made her a vessel" (Sanhedrin 22b), and regarding this the sages, of blessed memory, said (ibid.) that the altar sheds tears over him. But if she was a non-virgin, her status is like a second pairing (Pri Chadash), for even though for him it is a first pairing, nevertheless for her it is not the first (Beit Meir). And there is one who infers from the words of Rashi, of blessed memory, at the end of Gittin, that a virgin, even when she is not his first, her status is like a first pairing, and his first wife, even when she is not a virgin, their status is like a first pairing (Noda BaShe'arim) (and see Atteret Zvi and Maharsha, and according to what I wrote it is well-settled, and delve into it):

There is one who says that this primary law—that one should not divorce his wife unless he found in her an unchaste matter according to Beit Shammai, or according to Beit Hillel if she misbehaved toward him—is neither a Torah prohibition nor a rabbinic prohibition, but rather it is good advice (Mishneh LaMelech there in the name of Knesset HaGedolah and several other great authorities). However, from several great Rishonim it appears that it is a complete prohibition. The Rashba, of blessed memory, wrote in a responsum (siman 18) that for this reason they did not institute a blessing over divorce, because there are divorces that are performed through a transgression, such as when he did not find in her a matter for which he may divorce her according to the law; and therefore, even in a case where it is a mitzvah to divorce, they did not institute a blessing, for the sages did not distinguish. See there. Behold, he holds that it is a complete prohibition. Also the Rivash in a responsum (siman 127) wrote that if his father told him to divorce his wife, he need not listen to him, for if he told him to transgress a word of the Torah, he need not listen to his words. See there. Behold, he holds that this is a Torah prohibition. And so it is explicitly implied from the Yerushalmi, which asks according to Beit Shammai: why do I need the verse "her first husband... shall not be able to take her again," for she is already forbidden to him because of unchastity? And it answered: to make him transgress a negative commandment. See there. Behold, explicitly it is a Torah prohibition. And so it is implied in our Gemara, where Rav Papa asked Rava: if he found in her neither unchastity nor any matter, and he transgressed and divorced her, is it a valid get? And Rava said to him: since the Merciful One revealed regarding an anus that "he shall not be able to send her away" and all his days he stands under the obligation of "stand and return her," it follows that regarding other women, what he did is done. See there. And if there is no Torah prohibition here, what is this question? Rather, certainly it is a complete prohibition, but nevertheless the Torah commanded that if he transgressed and divorced, his get is a get (and Rava is consistent with his own reasoning in Temurah 4b that if one performs a prohibited act it is not effective, for according to Abaye there it is not a difficulty at all; and see Tosafot there 6a, starting with the words "And now," and examine it closely).

The general rule of the matter: when he divorces her because he found another more beautiful than her, there is a Torah prohibition in this even regarding a second marriage. But if he hated her in his heart because she sinned against him, even if she only overcooked his food, and certainly if he hates her because of some blemish in her or because of some improper trait she possesses, he may divorce her in a second marriage. However, in a first marriage, even in such a case he should not hasten to send her away, for the altar sheds tears over him, unless he found in her an unchaste matter or she is not modest like the fit daughters of Israel, such as one who violates Dat Yehudit; in such a case it is a mitzvah from the Torah to divorce her (Gemara), as it is said: "Because he found in her an unchaste matter... and he sends her from his house" (ibid.), and even according to Beit Hillel it is so (Tosafot). And a woman who was divorced because of licentiousness, it is not fitting for another to marry her if he is a fit man, and the Torah called him "another," as it is written: "And she goes and becomes the wife of another man," and it is not written "to a second man," to say that this one is not a mate for the first, for this one removed a wicked woman from his house and this one brought her into his house. If the second is meritorious, he sends her away, as it is said: "And the latter man hates her," and if not, she buries him, as it is said: "Or if the latter man dies," for he is worthy of death, as this one removed a wicked woman from his house and this one brought a wicked woman into his house (Gemara).

And so too, a woman who is bad to her husband, such as one who curses him or causes him distress by not eating with him and the like, such that he receives distress from her, even in a first marriage it is a mitzvah to divorce her, as it is said (Proverbs 22:10): "Cast out the scorner, and contention will depart," and a bad wife is as difficult as a rainy day (Yevamot 63b), which is a day of hail and wind, as it is said (ibid. 27): "A continual dropping in a very rainy day and a contentious woman are alike." And all these matters are ab initio, but ex post facto, if he transgressed and divorced her, in any case his get is a get and he is not obligated to take her back. And only regarding one who acts under duress did the Merciful One reveal that he stands under the obligation of "arise and take her back," and not in other cases (end of Gittin). The poskim omitted this because it is simple; and furthermore, it is possible that we only required this reasoning according to the one who holds that anything the Merciful One said "do not do," if one did it, it is not effective, as I wrote in section 5. But the poskim hold that if one did it, it is effective, for regarding the core of this law of "if one did it, it is effective," the halacha has not been clarified (see Lechem Mishneh chapter 6 of Bechorot, and Mishneh LaMelech chapter 8 of Malveh VeLoveh, and in the Maggid Mishneh chapter 1 of Gezeilah; and the Tur wrote this because he holds like Rava).

The Tur wrote: But if he found in her a matter of immorality or licentiousness, it is a mitzvah to divorce her, as it is written, "Drive out the scorner, and contention will depart." Thus far his words. And the sages, of blessed memory, applied this verse to a bad wife, as has been written. But regarding immorality or licentiousness, it is a mitzvah from the Torah, as has been written (Beit Yosef). Also, the wording of the Shulchan Aruch in section 4 is slightly imprecise, as he equates the law of a bad wife to one who is not modest; yet in the Shas it is proven that regarding one who is not modest, there is a positive commandment from the Torah to divorce her. Also, the wording of the Rambam is difficult in this matter, as he also wrote in chapter 10, law 22: A wife who is bad in her temperaments and who is not modest like the fit daughters of Israel, it is a mitzvah to divorce her, as it is said, "Drive out the scorner, and contention will depart." Thus far his words. And he did not write that it is a mitzvah from the Torah to divorce her. And it must be said that he holds that this which the sages, of blessed memory, said—that it is a mitzvah from the Torah to divorce her—is only according to Beit Shammai; for according to Beit Hillel, it is not specifically a matter of immorality, for even if she burned his food (Lechem Mishneh). And one should not ask: how is it possible to say that according to Beit Hillel there is no mitzvah from the Torah to divorce her for a matter of immorality, when it is forbidden to be with her? For it can be said that although it is forbidden to be with her, nevertheless he is not obligated from the Torah to divorce her, but rather he shall distance her from him and take another. And so it is explained from the words of the Rambam at the beginning of the Laws of Divorce, that from the Torah, divorce is not a mitzvah at all, even in a case where she is forbidden to him, for he wrote that there is a positive commandment that the one who divorces shall divorce with a scroll. Thus far his words. And so he wrote in the Sefer HaMitzvot, mitzvah 222, and this is his wording: That He commanded us to divorce with a document in any event when we desire to divorce, and that is His, may He be blessed, statement, "and he shall write for her," etc. Thus far his words. It is clear from his words that to divorce is never a mitzvah, and the mitzvah is when we desire to divorce, not to divorce except with a document; and this is like the mitzvah of shechitah, that when we desire to eat meat, it is a mitzvah to slaughter. But from the words of the Rashba that we brought in section 5, it is explained that there is a mitzvah to divorce one who is fit to be divorced. And so it is explained from the Tosafot at the end of Gittin, who wrote that even according to Beit Hillel it is a mitzvah from the Torah to divorce a licentious woman; see there.

The Rambam wrote (ibid.): A man shall not marry a woman with the intention of divorcing her, nor shall she dwell under him and serve him while his intention is to divorce her. Thus far his words. And so wrote the Tur and the Shulchan Aruch. And it means to say: whether to marry her initially with the intention of divorce, or whether he decided in his mind after he married her that he will divorce her and he uses her, there is a prohibition in the matter. And in chapter 21 of Issurei Biah he wrote, and this is his wording: It is forbidden for a man to marry a woman with the intention of divorcing her, as it is said, "Do not devise evil against your neighbor, while he dwells securely with you." But if he informed her at the beginning that he is marrying her for a period of days, it is permitted. Thus far his words. It is explained from his words that the reason for this prohibition is because she does not know of this; but if he informs her that he is marrying her for a time, it is permitted. And according to this, even when she is dwelling under him, there is no prohibition to use her unless he does not inform her that his desire is to divorce her, but when he informs her, it is permitted. And there are some of the great ones who wrote so (Chelkat Mechokek, subsection 1), and there are those who disagree on this (Beit Shmuel in the name of the Perishah). And in the Responsa of the Geonim it is explained that when he informs her, it is permitted (Pri Chadash). And it must be said that he does not hate her, for if he hates her it is forbidden to use her so that the children will not be "children of a hated woman," but rather that he wants to divorce her for other reasons. And also, this is not "children of a heart-divorcée," for that is only when at the time of his cohabitation his intention is to divorce her, and not when his intention is to divorce her after a period of time (Beit Shmuel). And know that from the words of the Tur it is explained that even just to be with her together without cohabitation there is a prohibition of "Do not devise evil against your neighbor," and so wrote the Acharonim (Beit Shmuel and Pri Chadash), and there are those who hesitate on this (Mishneh LaMelech, and so wrote the Chelkat Mechokek).

But there are some of our teachers who hold that to marry a woman for a set time, even when he informs her, is forbidden. And that which is found in the Shas, that they would announce "who will be [mine] for a day," they interpret that he would not cohabit with her, and if he were to cohabit with her, he would marry her forever (so it is according to the interpretation of the Tosafot and the Ra'avad in chapter 11 of Issurei Biah, as written by the Yam Shel Shlomo in chapter 4 of Yevamot, siman 6; and furthermore, that we rule according to the "if you wish, say" there 37b; and examine this closely). Therefore, whether he marries her initially for a set time, or whether his intention is to divorce her after he has married her, it is forbidden for him to be with her even when he informs her, for we call this "do not plot evil against your neighbor." And even though the end of the verse, "who dwells securely with you," does not apply when he informs her and she consents—for behold, she dwells securely without deception—nevertheless, there is the "plotting of evil" (Yam Shel Shlomo ibid.).

From the Torah, a man only divorces of his own will, but a woman is divorced whether of her own will or against her will. However, our teacher Gershom Meor HaGolah instituted in the ban of Rabbeinu Gershom not to divorce a woman against her will, and this enactment spread throughout the entire world, and this will be further explained. Our teacher, the Rema, wrote that according to Torah law, even if he does not have the means to pay the ketubah and the dowry, she nevertheless cannot delay the divorce because of this; rather, she should be divorced and sue him for what he owes her. Thus far his words. His source is from a responsum of the Rosh, who ruled accordingly regarding a woman afflicted with epilepsy, that even after the enactment of Rabbeinu Gershom, she does not have the power to delay the get because of the ketubah, as written in siman 117, section 25; see there.

The Rashba wrote in a response (brought in the Beit Yosef): I heard in the name of the Gaon that a man is not permitted to divorce his wife if he does not have the means to pay her ketubah, and I found similarly in a response of the Rif. Thus far his words. The Tashbetz wrote similarly. There are several proofs from the Shas that without the ketubah one may not divorce her, for the sages expounded on the verse, "The Lord has delivered me into hands from which I am not able to rise," this refers to a bad wife whose ketubah is large (Yevamot 63b). They likewise said in Eruvin (41b) that one who has a bad wife whose ketubah is large, such that he cannot divorce her, does not see the face of Gehenna. Likewise in Gittin (58a) regarding one who suspected his wife and wanted to divorce her, but was unable to divorce her because he did not have the ketubah. This is also explained in Midrash Bereshit (parashah 17) regarding Rabbi Yose HaGelili, who had a bad wife and did not divorce her until they lent him her ketubah, and he gave her the ketubah and divorced her.

And it appears to me that they do not disagree regarding the law. For certainly, when it is merely within his ability to live with her, even though she is a bad woman and he suffers from her, and the Torah gave him permission to divorce her, or if he hates her—and in a second marriage without the ketubah he is unable to divorce her, and all the more so in the time of the Shas when he was able to marry another—but when she is afflicted with a blemish, such as an epileptic or the like, which human nature is unable to suffer, for in such a case regarding a man we would also compel a divorce, we do not pay heed to her ketubah. And all the more so when she is licentious, where the law dictates that it is a mitzvah to divorce her, that we do not pay heed to the ketubah. And so it appears from several great Acharonim (and so it appears from the Chelkat Mechokek subsection 5, and so wrote the Pri Chadash; even though the Beit Shmuel subsection 6 did not write so, nevertheless, this appears to be the primary law).

Rabbeinu Gershom Me'or HaGolah and the great ones who were in his days issued a ban against divorcing a woman against her will. This enactment spread throughout the entire world, even in places where the ban of Rabbeinu Gershom against marrying two women did not spread. And even if he wishes to give her the ketubah, one may not divorce her in this time without her consent. However, when he divorced her with her consent and a disqualification was found in the get and another get is required, he may give it to her against her will, since she already consented and received it. But as long as she has not received it, even if she consented to receive it and then retracted, one may not give it to her against her will, unless it is in a case of a mitzvah, such as the fulfillment of procreation, for in this Rabbeinu Gershom did not enact. And there are those who disagree and hold that even in a case of a mitzvah he enacted. And this has already been explained in siman 1; see there. And likewise, if defects developed in her that are impossible to bear, Rabbeinu Gershom did not enact in this; and this has already been explained in siman 117; see there. And it has already been explained in siman 1 that for the permission of two women, one requires permission from one hundred rabbis, but in a case where he is permitted to divorce against her will, it implies that one does not require one hundred rabbis.

In a situation where one must choose one of these two—either to divorce against her will or to marry a wife in addition to his wife—it appears that it is much better to divorce against her will, for this prohibition is temporary, whereas with two wives he remains in prohibition for a long time. And even though in both cases there is no prohibition in a situation where it is said that our teacher Rabbeinu Gershom did not institute his enactment in such a case, nevertheless, in any event, why should he remain with two wives? And there is one who holds that two wives is lighter than a divorce against her will, for regarding the prohibition of two wives, there is an opinion that he only enacted it until the end of the fifth millennium, as written in siman 1, whereas regarding divorce against her will, the enactment is forever (Noda BiYehuda siman 1). And it may also be said that the enactment of two wives did not spread throughout the entire world, while divorce against her will spread throughout the entire world. Nevertheless, it appears to me that this is not so, for in a place where they permit this, there is no prohibition here at all, for in such a case he did not enact, as I have written; regardless, why should we perform an act where an observer will see that a man has two wives? And it requires further study (see there in the Noda BiYehuda, for the opinion of the Gaon of Lissa is also as I have written, and he disputed him; and see the Ran in Yoma chapter 8 regarding one seized by a ravenous hunger, that it is better to slaughter than to feed him carrion, even though it is a lighter prohibition than slaughter, nevertheless he violates it with every olive-sized portion, see there).

Our teacher, the Rema, wrote: If he transgressed and divorced her against her will in this era and she married, the man is no longer called a transgressor. Thus far his words. And he means to say that as long as he has not taken her back, he remains under his niddui; however, since she married another and it is impossible for him to take her back, the niddui is removed from him and he is not to be called a transgressor, and see what I wrote in Yoreh Deah siman 334. However, for the transgression he committed, he requires absolution (Gidulei Teruah) or repentance. And it is a simple matter that as long as she has not married and it is her will that he take her back, we compel him to take her back if he is not a kohen (and see what I wrote in section 24).

And there is a great question to ask regarding this for the poskim who rule like Rava in Temurah that "if one did it, it is not effective": Why is a get against her will effective after the enactment of our teacher, the Gershom, of blessed memory? For even regarding rabbinic law there is reason to say "if one did it, it is not effective" (Ketubot 81b), and certainly the decree of our teacher, the Gershom, is like something close to a Torah prohibition. And it is possible to say that since regarding kiddushin we find that kiddushin takes effect with those liable for negative prohibitions even though the Torah forbade it to him, it follows that the Torah commanded that regarding kiddushin it shall be effective even though it was done through a prohibition, and divorce is juxtaposed to kiddushin. Furthermore, regarding a get itself, the Merciful One revealed in the case of one who rapes a virgin that if he divorced her the get is valid, even though the Torah said "he shall not be able to send her away all his days"; it follows that regarding a get, "if one did it, it is effective." And there he is obligated to take her back because the Torah decreed so all his days, standing in a state of "arise and take back," but in another place we do not compel him to take her back even though he committed a prohibition. And that which we said in the previous section, that we compel him to take her back, is not by the letter of the law but rather from the side of logic, so that a sinner should not profit. But it is a simple matter that the get is valid even according to the one who holds "if one did it, it is not effective" (and so wrote Tosafot in Temurah 5a, starting with the words "They challenged" etc., "And if you say" etc., "And it can be said" etc., see there; and I do not understand their question there on 4b, starting with the words "And now," see there; and it is possible that their intention is that he should take her back, and see there in the sugya where it is explicitly proven that the get is a get even according to Rava, and certainly regarding the enactment of our teacher, the Gershom, and delve into this). And see what I wrote in section 24.

In the Gemara (Gittin 75a) regarding one who says to his wife, "This is your get on condition that you give me two hundred zuz," there is a dispute whether if she gave it to him against his will it is considered a giving or not, and it will be explained in siman 143, see there. And one should not ask that we should derive this from the essence of the get, for it is written, "and he shall give it into her hand," and nevertheless by Torah law a woman is divorced against her will as it is written, "and he shall send her from his house," and if so, the Torah revealed that a giving against one's will is considered a giving. However, in truth it is not comparable, for the dispute is regarding a matter that is the property of the recipient, such as the wife who is the property of her husband, and she gives him the money to fulfill the condition and to remove herself from his ownership; it may well be said that it is impossible to remove his ownership without his will. But the husband is not the property of his wife, and she has over him only the lien of her food, clothing, and conjugal rights; he may well remove her lien even against her will (Rashba ibid., and the Pri Chadash challenged him in vain, and his intention is as I have written, and so wrote the Beit Meir, and delve into this).

And since a woman is divorced against her will, as we do not require her consent, therefore even a ketannah and a deaf-mute are divorced through their receipt of the get, even if the kiddushin were Torah-level kiddushin, such as through the father. This is all the more so regarding an orphan who was betrothed in her childhood, which is only rabbinic kiddushin, and similarly a deaf-mute is only rabbinic, as I wrote in siman 44, unless she was betrothed while she was of sound senses. And even though a ketannah and a deaf-mute do not possess full legal competence, nevertheless, since we do not require the woman's consent, they are able to receive their get. However, regarding a ketannah who has a father, it will be explained in siman 141 whether she has the ability to receive the get; see there. Furthermore, a ketannah who is too young, such that she does not distinguish the matter of the get, also does not have the ability to receive a get, and it will be explained there with the help of Heaven.

But a woman who has become insane, who has no intellect at all—if she does not know how to guard her get at all, even according to Torah law he cannot divorce her, and the husband is liable for all her obligations as written in siman 70; see there what we wrote in section 16. And if she knows how to guard her get, but she does not know how to guard herself from the licentious, according to Torah law she is divorced. However, the sages enacted, so that they should not treat her as ownerless property, that he should not divorce her, and consequently he shall guard her. And since the sages imposed this upon him, he is therefore exempt from her food, clothing, and conjugal rights, and he leaves her and marries another, and provides her food and drink from her own property. And he is also not liable for her medical healing; yet if it is possible to heal her from her insanity, certainly the husband is liable to heal her (Beit Shmuel, subsection 10, even according to the opinion of the Rambam). And this is the opinion of the Rambam at the end of chapter 10 of Hilkhot Gerushin:

But there are some of our teachers who hold that even if she is unable to guard herself, he is obligated in her sustenance and in all conditions of the ketubah except for her onah, for it is impossible to cohabit with her. For if we say that he is exempt from all obligations, if so, what did the sages accomplish with their enactment? Furthermore, since the sages said "he shall not divorce her," she is no worse than one who is divorced and not divorced, whose husband is obligated in her sustenance (Tur in the name of the Ramah). And it implies that according to this opinion, he is obligated in all types of her medical healing, even that which is not for the healing of her insanity. However, from the language of the Tur and the Ra'avad there, it does not imply so, see there. And for us, since it is forbidden to divorce a woman against her will, even the Rambam admits that he is obligated in all the obligations (Chelkat Mechokek, subsection 9).

The custom now regarding a madwoman is to permit him to marry another woman based on a permit from one hundred rabbis and with the permission of the government (ibid. subsection 12). Some have written that it is necessary to set aside a ketubah for her and to prepare a get through an agent and to also obligate him in all the conditions of the ketubah (Bach). Others have questioned this, for how can one hold the rope at both ends, and how can we obligate him in the ketubah and in the obligations of a husband to his wife (Chelkat Mechokek). There are also those who question the triplicated get, for it is impossible to permit her with this get when she recovers and the third party delivers the get to her, based on the reason the sages, of blessed memory, stated (Nazir 12b): anything that one cannot do now, one cannot appoint an agent for; and since she is currently not fit to receive a get, an agent also cannot be appointed (Mishneh LaMelech chapter 6 in the name of the sages of Constantinople). Many great authorities have spoken of this, and we also in Choshen Mishpat siman 182 wrote regarding this, see there. In practice, it is difficult to rely on such a get, and therefore when she recovers it is proper that he write her another get.

If he transgressed and divorced her in her state of insanity, if she does not know how to guard her get, it is not a get at all, since according to the Torah she is not a candidate for divorce. However, in a case where she knows how to guard her get but does not know how to guard herself, our teacher, the Beit Yosef, ruled that she is divorced and he removes her from his house, and he is no longer obligated to care for her, and he gives her her ketubah. And some say that even ex post facto she is not divorced, since the sages of blessed memory enacted that one should not divorce her. And according to this opinion, in this time when there is the Cherem of Rabbeinu Gershom against divorce against her will, she is certainly not divorced (Beit Shmuel).

All this applies to a constant shoteh, but when she is at times a shoteh and at times healthy, and he divorced her during her period of health because he believed she would remain so forever and not return to her shoteh state, we do not reverse the act, since at the time of the action he did not intentionally violate the enactment of our Sages of blessed memory. However, according to the enactment of Rabbeinu Gershom Me'or HaGolah, this is only if he divorced her with her consent, but if he divorced her against her will, it is not a get according to this opinion, which holds that for one who violates an enactment of the Sages, it is not a get (and see Chelkat Mechokek subsection 16 and Beit Shmuel subsection 13). And let it not be difficult for you that our teacher, the Rema, ruled that if he divorced her against her will and she remarried, he is no longer called a transgressor, as he wrote in section 16, and how is it possible to say it is not a get? For it can be said that certainly so it is, as the enactment of Rabbeinu Gershom Me'or HaGolah was for the benefit of the woman, and once she remarried she revealed her mind that it is pleasing to her; consequently, the get is kosher. But when she has not remarried and cries out that it is not pleasing to her, certainly according to this opinion it is not a get and we compel him to take her back, and see what I wrote there (that this fact that it is not a get is a type of knas).

It was taught in a baraita in Ketubot (28a): One who divorces his wife, she may not marry in his neighborhood because he is familiar with her hints and her winks, lest they come to transgression (Rashi). And if he was a kohen, she may not dwell with him in the same alleyway even if she did not remarry (ibid.), lest he cohabit with her, and a kohen is forbidden to a divorcee. However, an Israelite, as long as she has not remarried, she may dwell in his neighborhood (ibid.). And an alleyway is larger than a neighborhood, for a neighborhood is only three houses. And when she has remarried, it is more stringent for him, and a distance of a neighborhood is sufficient. But when she has not remarried and he is a kohen, where the prohibition is lighter because she is an unmarried woman, they were more stringent upon him to distance her from the entire alleyway (Tosafot, and so it appears from Rashi, and examine it closely).

And there are some of our teachers who hold that a neighborhood is larger than a מבוי, and in the case of one who married they were more stringent because she is a married woman, but in the case of one who did not marry, regarding a kohen they were not so stringent and a distance of a מבוי is sufficient (the Rosh and the Ran). And a divorcee of a Yisrael who married another and was widowed or divorced, her law is like a divorcee to a kohen (the Rosh), for this too is a negative prohibition. And there are those who hesitate regarding this (the Ran in the name of the Ri) and hold that even in a מבוי she is permitted to dwell with him, for without kiddushin there is no negative prohibition of returning one's divorcee after she married another (ibid.). However, in one courtyard they are certainly forbidden to dwell. And according to this approach, we have no proof regarding a Yisrael who divorced his wife and she did not marry that she would be forbidden to dwell with him in one courtyard (the Semag). But from the poskim it is clear that this too is forbidden, as will be explained. And it is not similar to a captive woman, whom the sages permitted to dwell with him in one courtyard provided they do not undergo yichud, as I wrote in siman 7, section 16, for there the reason is because the matter is a doubt, as is written there (and as is evident from Rashi).

But the Rambam, of blessed memory, in chapter 21 of Hilkhot Issurei Biah, law 27, wrote: One who divorces his wife from marriage, she shall not dwell with him in a courtyard lest they come to zenut; and if he was a kohen, she shall not dwell with him in an alleyway, and a small village is judged like an alleyway. Thus far his words. It is clear from his words that he did not possess the version in the Gemara "she shall not marry in his neighborhood," but rather one who divorces his wife, she shall not dwell with him in a courtyard, but in his neighborhood she is permitted to dwell (the Maggid Mishneh). And according to his words, even the divorcee of a Yisrael who has not remarried is forbidden to dwell with him in one courtyard as has been written, and so it is explicitly in the Yerushalmi, chapter Hazorek, see there. And so we rule. And the measure of a small village was not explained, how much its measure is (see Helkat Mechoqeq subsection 19). And the prohibition of an alleyway is only in an alleyway closed from three sides in the manner that existed in the time of the Shas, but in a through-alleyway where a public path passes between them, they are permitted to dwell even if she remarried another. And if he divorced her because she is forbidden to him, even if she did not remarry, it is forbidden to dwell with her as if she remarried another. And if it is a Torah prohibition, such as a sotah or one who sees blood due to intercourse, she is forbidden to dwell even in an alleyway. And if it is a rabbinic prohibition, such as a captive woman, she is forbidden in a courtyard and permitted in an alleyway (ibid. subsection 22 and see the Hagahot HaGra subsection 16). And regarding other rabbinic prohibitions, some say its law is like a captive woman, and some say its law is like one who married and was divorced, for only regarding a captive woman did they rule leniently (Beit Shmuel subsection 16).

Our teacher, the Rema, wrote in section 7: If a reshut harabim separates between their houses, even if there is no other Jew in the entire city except for them alone, it is permitted. Thus far his words. The explanation of his words appears to me as follows: It has already been explained in section 26 that when she marries another, we are very stringent with her, such that she is forbidden to dwell with him even in a large neighborhood, and certainly in a mavoi, and this is the opinion of the Tur, see there. And in section 27 it was explained that in a mavoi mefulash where a public path passes between them, it is also permitted. And it stands to reason that this is only in a place where Jews are found besides them, for then they will be afraid to seclude themselves; but if only they alone are in the city, it is forbidden even in a mefulash, for they will easily seclude themselves. And this is what he says, that if a reshut harabim separates between their houses, meaning they dwell one opposite the other—that is, he dwells on one side and she on the other side and a reshut harabim separates between them—then it is permitted even if there is no Jew besides them. For since if they wish to seclude themselves, one of them must necessarily cross through the width of the reshut harabim, even the non-Jews in the city will notice this. But if they both dwell on one side, they will easily seclude themselves because they will pass along the sides of the reshut harabim, which is not so noticeable, and therefore in such a case it is forbidden even in a mefulash, and even if they dwell far from one another. And there is one who says that his intention is that the prohibition is only when they dwell house next to house, such that they can pass through the wall between them, but if one house separates between them, it is called "a reshut harabim separates between them" (Chelkat Mechokek, subsection 20). And they challenged him (in subsection 21). And it appears to me as I have written (and so it is implied from the language of the Hagahot Ashri, for if not so, he should have said "if they are not adjacent to one another," and the Rema combined the words of the Hagahot Ashri with the words of the Terumat HaDeshen and the Beit Yosef, and examine this closely).

Reuven who divorced his wife, and she went and married another and bore children, and the divorcer married another woman and she bore children from him—the children are permitted to marry one another. And there is no concern to say that since they are related through marriage they will come to a state of prohibition. And all the more so it is permitted that the daughter of the divorcer should take the brother of the divorcee, and the brother of the divorcer should take the sister of the divorcee (Ba'er Heitev in the name of Knesset HaGedolah). And we are not to increase decrees that the sages, of blessed memory, did not state.

Our Sages, of blessed memory, said (ibid.) that if she had a loan with him, she appoints an agent to claim it from him and she should not claim it herself. According to the Rambam, this applies to every divorced woman, and according to Rashi, this is only when he is a kohen. For the halacha, we hold like the Rambam; and even though they do not sequester themselves alone, nevertheless, since he conducts business with her, there is a concern regarding their closeness—that they might sequester themselves and he will cohabit with her. Consequently, they are forbidden to conduct any type of business together when they need to speak together and negotiate with her. Similarly, to lend one to the other or the other to the one after divorce is forbidden except through an agent. A divorced woman who comes with the one who divorced her to a beit din, they are placed under a ban or they are given lashes of rebellion. Similarly if they dwell in one courtyard (according to the Rosh, the Ran, and the Tur, when they come to a beit din they are not lashed unless he was a kohen or she had married; and see Be'er Sheva subsection 17 and in Tur Yoreh Deah siman 334).

The prohibition does not apply unless they conduct business together, such as coming to a beit din or other business, but there is no prohibition upon him against entering a house by chance where his divorcee is located. It is permitted to enter her house by chance even though she has married, since he does not dwell there and does not conduct business with her (and so it appears in Pesachim 110b). There are those who are stringent even in such a case (Beit Yosef), and the reason is lest he come to be drawn after her. It appears to me that even according to this opinion, one should only be stringent when he lingers there for an hour or two and there are not many of Israel there, but otherwise, we have no concern (as appears in the Beit Yosef, see there; and the precision of the Chelkat Mechokek subsection 24 is well-settled, and delve into this).

It is permitted for a person to sustain his divorcee when she has nothing from which to support herself, and on the contrary, there is a greater mitzvah in her case than with other poor people because of "and from your own flesh do not hide yourself." It is found in Midrash Bereshit (parashah 17) regarding one who gave money to his divorcee for sustenance and through this rain descended. However, he should not give it to her himself so that he shall have no business with her, but rather he should sustain her through a messenger. And even though there he gave it to her himself, in truth he did not act properly in this, and the proof is that they reported regarding him before Rabbi Tanchuma that he committed a prohibition by speaking with his divorcee, and when Rabbi Tanchuma asked him why he did so, he replied that his mercy was stirred; see there.

When both of them are in one courtyard and one of them must leave the courtyard because there is a prohibition for them to be together, who is displaced by whom? Our sages, of blessed memory, said (ibid.) that she is displaced by him, for the wandering of a man is harder than that of a woman. And it is simple that this is when they have equal rights in the courtyard, but if the courtyard is hers, he is displaced by her. It is only when the courtyard belongs to both of them, or if they dwell in a rental, that she is then displaced by him. And after the divorce, when she is displaced by him, if she wishes to marry—and then they will need to distance themselves from one another from the entire alleyway and from the neighborhood as has been explained—none of the residents of the alleyway in which the first one dwells may marry her unless he takes it upon himself to distance himself from this alleyway and from this neighborhood. For behold, it is upon her to distance herself from him and not he from her, as I have written, and consequently, one who wishes to marry her must also distance himself (Chelkat Mechokek and Beit Shmuel).

All these matters apply only if she was divorced from marriage, but if she was divorced from erusin, she is permitted to dwell with him in the same courtyard and to summon him to beit din, for his heart is not familiar with her and there is no concern for corruption. Therefore, if it is known that they were accustomed to one another and his heart is familiar with her even from erusin, all the laws we have explained apply. Similarly, a yavam and his yevamah after chalitzah, their law is like that of a betrothed woman, and if his heart was familiar with her, they are forbidden to dwell together. Thus ruled the Rashba in a responsum (siman 209 and brought in the Beit Yosef), and the prohibition of chalitzah is like the prohibition of priesthood, for it also contains a negative commandment.

It was taught in Semachot at the end of chapter 2: Beit Shammai say: One who divorces his wife shall not reside with her, neither in an alleyway nor in a courtyard. If it was an alleyway belonging to both of them, he turns his doorway to another side; and if it was a courtyard belonging to both of them, one moves out because of the other, and the woman is moved out because of the man. In what case does this apply? At a time when they were married. And a priestess, even though they were not married. In what case does this apply? From marriage, but from betrothal, no. And similarly, one who performs chalitzah for his yevamah does not need to move out, because his heart is not accustomed to her. Thus far his words. (According to the Rambam, it can be said that this refers to an alleyway, but in a courtyard it is forbidden in any case; and that which he equated a priestess to marriage is not according to the opinions that have been explained, and it can be settled, and examine this thoroughly.) (In the Yerushalmi at the beginning of Kiddushin it is brought: In the entire passage (Malachi 2) it is written "Lord of Hosts," but here (in the verse "For I hate sending away") it is written "the God of Israel," to teach you that the Holy One, Blessed be He, did not unify His name with divorce except regarding Israel alone):