Mishneh Torah, Divorce 10-12

Sugya Map

• Core Issue: The legal ontological status of an imperfect Get—specifically, the boundary between bateil (void ab initio, Torah-level) and pasul (Rabbinically disqualified).
• Nafka Mina:
  • Legitimacy of children (mamzerut vs. status of the second marriage).
  • Status of the woman regarding the priesthood (forbidden to a Kohen).
  • Requirement for a second Get to permit her to others.
• Primary Sources:
  • Mishneh Torah, Hilchot Gerushin 10:1–12.
  • Gittin 80a–82a (the seminal sugya on rei'ach get).
  • Yevamot 89a–90b (the status of a woman who remarried based on faulty testimony).

Text Snapshot

• MT 10:1: "Whenever... we have used the terms 'the get is void,' or 'the divorce is not effective,' the intent is that the get is void according to Scriptural law."
  • Leshon Nuance: Rambam insists on a binary: either the Get works (Torah law) or it is void (Torah law). The intermediate category of pasul is relegated strictly to midivrei soferim. He rejects the Talmudic fluidity where pasul occasionally drifts toward Scriptural prohibition, forcing a rigid taxonomy.

Readings

1. Nachal Eitan (Rabbi Yehuda Rosannes)

Nachal Eitan addresses Rambam’s controversial claim that a Get given with the condition "you are divorced but forbidden to all others" (rei’ach get) is only Rabbinically disqualified from the priesthood. He defends Rambam against the Maggid Mishneh and others who argue the prohibition is Scriptural. He cites Makkot 15a: the case of a man who divorces under such conditions is not considered a Get under Torah law, yet if he were a Kohen, he would be obligated to divorce her. If the Get were void Torah-wise, he would still be married to her; if it were a valid Get, he would be forbidden to her. By proving the Get lacks force under Torah law, Rambam maintains the prohibition against the priesthood is a secondary, Rabbinic stringency (d’rabanan) to prevent public confusion.

2. Tzafnat Pa’neach (Rogatchover Gaon)

The Rogatchover focuses on the mechanics of the Get. He notes that the distinction between bateil and pasul relies on the Gittin 86b discussion regarding adei mesirah (witnesses of delivery). He suggests that Rambam’s taxonomy is rooted in the definition of the Get itself as an instrument. If the instrument is fundamentally broken (bateil), there is no get whatsoever. If the instrument exists but is tainted by improper procedure (pasul), it retains "the smell of a get." The Rogatchover highlights the Yerushalmi’s view that the Kohen prohibition is specifically because the document was "mentioned" as a Get, creating a public mar'it ayin that necessitates a Rabbinic barrier.

Friction

The Kushya: The strongest challenge to Rambam comes from the Maggid Mishneh and the Ra'avad. If a Get is bateil—void by Scriptural law—how can it possibly create a status that prevents a Kohen from marrying the woman? If the Get is null, she is still eshet ish (a married woman). If the Get is valid, she is a divorcee. Rambam’s creation of a "middle" status where she is not a divorcee but is forbidden to a Kohen seems to violate the binary logic of kiddushin.

The Terutz: Rambam’s genius lies in his meta-legal framework. He treats the Kohen prohibition as a gzeirah (decree). He argues that the Torah forbids a Kohen from marrying a "divorcee." The Rabbis extended this to any woman who appears divorced. Thus, the woman is not a "divorcee" in the eyes of the Torah, but she is "branded" by the Get document. The prohibition is not on the woman’s status (which is still married), but on the act of the Kohen marrying a woman who has been "tainted" by the appearance of a Get.

Intertext

• Leviticus 21:7: "They may not take a woman divorced from her husband." This is the source for the Kohen prohibition. Rambam’s exegesis hinges on the phrase mechulelet (tainted).
• SA Even HaEzer 150:3: The Shulchan Aruch codifies Rambam’s view, affirming that even a void Get creates this Rabbinic barrier, forcing the woman to be treated as pasul l’kehunah despite the marriage to the first husband remaining technically in effect.

Psak/Practice

Rambam’s methodology forces a strict practice: one must distinguish between a Get that is "void" (requiring a new Get while the woman is still married to the first husband) and a Get that is "disqualified" (where the first marriage might still be in effect but the woman is treated as a divorcee regarding the priesthood). Practically, this means that in any case of a Get of doubtful status, the Get must be redone—not because the first was "half-valid," but because the first failed to break the bond, and the court must now clear the "smell" of the divorce to prevent the woman from being trapped in a status of sfek sfeka.

Takeaway

Rambam’s taxonomy of Get failure—bateil vs. pasul—serves as a safeguard against the erosion of marriage: he treats the Get not just as a contract, but as a public signifier. If the signifier is broken, the law protects the woman by enforcing the appearance of the Get to prevent illicit remarriage, even when the underlying marriage remains intact.