Siman 150

Know that the Rambam, of blessed memory, established a general rule in chapter 10 that everywhere he wrote in his composition "the get is void" or "it is not a get," it is disqualified by Torah law, and everywhere he wrote "the get is disqualified," it is only by rabbinic law, see there. And this rule is not in the Shas, and other poskim certainly held that when they said "the get is void" or "it is not a get" or "she is not divorced," it is disqualified by Torah law, but even in a place where they said "disqualified," it can also be by Torah law (the Maggid Mishneh). And there are instances where the language of "disqualified" is by rabbinic law, and there is a disqualification where only ab initio she should not marry, and the matter is understood according to its context (ibid.).

Any place where the get is invalid according to the Torah, she is still a complete married woman, and if she married another, she must leave and the offspring from him is a mamzer. And if her husband was a kohen, she is not forbidden to him as a divorcee, except in the case of one who divorces his wife and said to her: "Behold you are divorced from me and you are not permitted to any man," for even though this is not a get, behold she is disqualified from the priesthood by rabbinic decree, as it is said: "And a woman divorced from her husband they shall not take," and our sages, of blessed memory, said (Yevamot 94a) that even if she was only divorced from her husband, she is disqualified from the priesthood. And this is the "scent of a get" which disqualifies by their words; so wrote the Rambam there, and in his opinion it is a mere asmachta. But in truth, from the Talmud Gittin (82b) it implies explicitly that from the Torah she is disqualified from the priesthood (the Maggid Mishneh). And one can reconcile the approach of the Talmud even according to the Rambam (see there in Rashi's commentary, and one can say that he infers from "by rabbinic decree" to "from the Torah," and examine this carefully). And also in the Yerushalmi (beginning of chapter 9) it implies that from the Torah, for there to be a "scent of a get," it must at least permit her to one man, see there (and as for the difficulty raised by the Lechem Mishneh from Yevamot there, it can also be answered simply, that also the exposition of Rabbi Eliezer ben Matya is an asmachta, for why do we need a verse for this? It is obvious; see there and examine this carefully).

And some say that even when saying "Behold, you are permitted to any man except for so-and-so," she is not disqualified from the priesthood according to the Torah, according to the Rambam (Beit Shmuel, subsection 5). But this does not seem so from the Shas there, which says that therefore he must take it from her and return it to her and say "Behold, you are permitted to any man," because even the first giving was effective to disqualify her from the priesthood; see there. And if you were to think that according to the Torah it was not effective at all, he would not need to take it from her, for it is difficult to say that because it was effective rabbinically—for rabbinically this is only a decree and not that there is actual substance in the essence of the get (and so he wrote in the name of the Shiltei HaGibborim, that in this it is obvious that she is disqualified from the priesthood according to the Torah, and in the Yerushalmi it appears that there is a dispute regarding this, see there, chapter 9, end of halacha 1, and one must say that the expression "they were concerned" means that they were concerned that according to the Torah it is a disqualification; and delve into this).

And regarding that which the Rambam wrote, that aside from this, any Torah disqualifications do not disqualify her from the priesthood, the Ra'avad wrote that this is not a general rule, for in any case where the disqualification of the get is not clearly evident, she is disqualified from the priesthood so that people will not say a divorcee is permitted to a kohen, see there. And I do not know which Torah disqualification exists that would not be clearly evident. And one cannot say, for example, in a case where he gave it on a condition and the condition was not fulfilled, for the matter is not revealed to all, for behold, regarding this we learned explicitly that she is fit for the priesthood (81a). And also one cannot say that his intention was regarding a condition that he stipulated for all the days of her life, for certainly she is fit for the priesthood, as there is no greater evidence than this, as I wrote in siman 146. And it is possible to say that his intention was when there was no "on the condition" but only "on the strength of," and according to the poskim who hold that without "on the condition" it is nothing; but according to us, in any case it is impossible to say so, for behold she is a doubtfully divorced woman, for according to the Rif and the Rambam the get is valid, as I wrote in siman 133. And it requires further study.

When she is married to another with a get that is invalid according to the Torah, she requires a get also from the second husband by rabbinic decree, so that they should not say a married woman leaves without a get. And she requires a get from the first to permit her to the world, and she is forbidden to both of them forever. Even if she married inadvertently, such as if she did not know that the get was void, nevertheless, it is so that they should not say that this one took back his divorcee after she married another (the Rambam). And to the second she is forbidden because the sages penalized them since they committed a great prohibition (Mishneh LaMelech). And if one of the two of them transgressed and brought her in, they remove her from him and compel that he divorce her. And all the thirteen ways that we learned in the Mishnah in the chapter HaZorek (Gittin 80a), and which we explained in detail in siman 17, section 257, apply to them. Only regarding the matter of inheritance, some say that her first husband inherits her, for behold, he did not commit a prohibition, as I wrote in siman 17, see there. However, if she only became betrothed to another and had not yet entered the chuppah with him, she is permitted to her first husband and does not require a get from the second, since there was not yet a prohibition between them. And some say that even if she became betrothed, she requires a get from the second and is forbidden to both of them (the Ra'avad there). And it appears to me that his reasoning is that it is not similar to where they told her her husband died and she became betrothed, where she is permitted to the first, for there everyone sees that they testified falsely; but with a get, not everyone knows that the get is void, and they will say that he took back his divorcee after she was betrothed to another. And according to the Rambam, one could say that regarding kiddushin there is no decree, for they will more likely attribute it to saying there was a condition in the kiddushin of the second which was not fulfilled, but regarding marriage there is no condition. And in truth, therefore some say that the reason she is forbidden to the first is not because of a decree but because of a penalty, just as with the second; therefore, regarding kiddushin where there is no prohibition, the sages did not penalize them (see the Mishneh LaMelech there, and delve into this).

When she is forbidden to both of them and requires a get from both of them, there is no difference whether she received a get from both of them or did not receive one from one of them, such as if one of them died. According to the reasoning of the Rambam, when the second one died, it would have been possible to permit her to the first; for it is well and good that when she received a get from the second, it is relevant to say that they will say the first took back his divorcee after she married another because they saw that she received a get. But when she did not receive a get from the second, they would not say so. Yet this is not the case, for the sages did not differentiate. Furthermore, they will still say that she married another and he died, and the first took her back (ibid.).

And in any place where the get is invalid only by rabbinic law, she is disqualified from the priesthood by Torah law, and she may not marry ab initio, but if she married she need not leave, and the offspring is kosher. And they write for her another kosher get while she remains with her husband. And if it is impossible to write another, and the husband was scrupulous and divorced on his own accord, he is praiseworthy if she has no children; but if she has children, he shall not divorce her, lest they cast a slur upon the get (the Rambam). And one should not ask that if so, another get should not be given to her when she has children because of the slur, for it can be said that by the giving of a get alone there will be no slur upon the children, as they will say that he gave the get merely for extra caution (Beit Shmuel, subsection 2), and the proof is that she remains with him, which is not the case when he divorces her, where there would indeed be a slur.

From the wording of the Rambam, the Tur, and the Shulchan Aruch, it is explained that regarding all rabbinic disqualifications, if she married, she does not leave. However, some say that regarding a disqualification of an earlier date, even though it is rabbinic, if she married she must leave when she has no children (Beit Shmuel in the name of the Ran). This has already been explained in siman 127, see there. It is a simple matter that regarding rabbinic disqualifications, when she married or was betrothed to another and he died or divorced her, she is forbidden to the first by Torah law; for since the get was valid by Torah law, the kiddushin of the second took effect upon her, and she is forbidden to the first according to the law of a divorcee who was betrothed to another.

And a matter regarding which we are stringent in gittin, even if the sages, of blessed memory, were stringent in this not by the core of the law but rather due to a stringency—such as an old get, or with something attached during the writing of the form where we decree due to the essential part (the Gra) and the like—since the get is kosher regardless, but we are stringent to write it initially, if it was not written [accordingly], the get is kosher. For it is no worse than an old get, where we maintain that if she was divorced with it, she may marry initially. And there is one who wishes to say that regarding all rabbinic invalidations in a time of pressing need, we validate them post facto, and when she was divorced with it, she may marry initially (Mordechai at the beginning of chapter 7 in the name of the Ra'a). But this is not implied by all the poskim. And if the invalidation is from the core of the law, such as a post-dated get and the like, she may not marry initially, and only if she married, she does not leave. And regarding a post-dated get itself, there are several distinctions of laws as I wrote in siman 127, and there is a post-dated get that is more severe than all rabbinic invalidations; see there.

And it is a simple matter that regarding a stringency that is not according to the law of the Gemara but rather from the stringency of the poskim, if she was divorced, she may marry ab initio; and even if she was not yet divorced, but it is difficult to obtain another get, they may divorce with it ab initio.

And any woman who is of doubtful divorce, and the doubt is from the Torah, she shall not marry; and if she married, she must leave, and the offspring from the second husband is a doubtful mamzer. And all the stringencies that apply to a certain Torah disqualification also apply to a doubt. Furthermore, there are instances where its doubt is more stringent than its certainty, such as when she was betrothed to another, for in a case of doubt she requires a get from the second and is forbidden to the first, as perhaps the betrothal of the second took effect upon her.

One who divorced his wife with a get that is pasul by rabbinic decree, or even with a get that was invalidated due to a doubt regarding Torah law, if she has not yet been betrothed to another and the first husband wishes to take her back, he must betroth her anew. This applies even in a case of a doubt regarding a Torah invalidation, for perhaps the get is valid and she is an unmarried woman. However, one should not recite the seven berakhot, for the rule is that regarding a doubt in berakhot one is lenient, and there is a prohibition in a doubtful berakha. Even with a get that is valid according to Torah law and its invalidation is rabbinic, there is no need for seven berakhot since she is not entirely an unmarried woman (the Maggid Mishneh). Furthermore, since the berakhot are rabbinic, in any case where the get is pasul by rabbinic decree, the sages did not impose upon him the obligation of the berakhot. But in a case of a doubt regarding a rabbinic invalidation, it appears to me that one must recite the seven berakhot. Similarly, there is no need for another ketubah even in a case of rabbinic invalidation; and we may learn this from the conditions of the ketubah, for it is written therein: "When you marry another, you shall take what is written for you," and behold, she cannot marry another ab initio, and therefore there is no need to write another ketubah for her, and she stands upon her first ketubah. This is certainly so regarding a doubt in Torah law. And in a case of a doubt regarding a rabbinic invalidation, it appears to me that he must write her another ketubah, and it requires further study. And the matter is simple that if the get is valid and was only invalidated due to the stringency of the poskim, she requires seven berakhot and another ketubah.