Mishneh Torah, Divorce 10-12

Sugya Map

• Core Issue: The legal ontological status of an imperfect get (divorce document) and the subsequent "penalties" or gezeirot (Rabbinic decrees) imposed on the woman to preserve the integrity of issur eishet ish (prohibition of a married woman).
• Nafka Mina(s):
  • Whether the woman is forbidden to a kohen (priest).
  • Whether a second husband must divorce her.
  • Whether children born to a second husband are mamzerim.
  • The retroactive effect of get defects vs. prospective Rabbinic stringencies.
• Primary Sources:
  • Mishneh Torah, Hilchot Geirushin 10–12.
  • Gittin 80a–82a (defective gittin).
  • Yevamot 89a–90b (status of second marriages).
  • Leviticus 21:7 (chalulah prohibition).

Text Snapshot

• MT Geirushin 10:1: "Whenever... we use the term 'the get is void,' the intent is that the get is void according to Scriptural law. The woman is married in the full sense of the term."
  • Nuance: Rambam uses batel (void) strictly for de-Oraita (Scriptural) nullity. He differentiates this from pasul (unacceptable), which implies a de-Rabanan (Rabbinic) disqualification.
• MT Geirushin 10:1 (re: Priest): "...a person who divorces his wife and tells her: 'You are divorced from me, but you are not permitted to marry anyone else.' ...This is the 'wisp of a get' (rei'ach get)... forbidden to the priesthood by Rabbinic decree."
  • Nuance: The term rei'ach get (scent/wisp of a divorce) acts as a legal "border control," preventing the kohen from assuming she is fully permitted while acknowledging the divorce is not a total legal severance.

Readings

1. Nachal Eitan: The Jurisprudence of "Rei'ach Get"

The Nachal Eitan addresses a foundational tension in the Rambam’s classification. He notes that the Maggid Mishneh and the Lechem Mishneh struggle with Rambam’s assertion that the prohibition against marrying a kohen in cases of rei'ach get is merely midivrei soferim (Rabbinic). The simple reading of the Gemara (Gittin 80a) suggests the prohibition is de-Oraita.

Nachal Eitan offers a profound chiddush: he bridges this by citing Makkot 15a. He argues that if the prohibition were de-Oraita, then in cases where a man divorces a woman with a stipulation that renders the get void, the husband should theoretically be liable for the lav (negative commandment) of "he shall not send her away" (Lo yu'chal leshalcha). Since he is not liable, it proves the get is not fully de-Oraita. Rambam’s brilliance here is identifying that the kohen prohibition is a protective fence—an asmachta—that mimics the severity of the biblical law without technically possessing its ontological status.

2. Tzafnat Pa'neach: The Mechanics of Disqualification

The Rogatchover Gaon, in his Tzafnat Pa'neach, approaches the "wisp of a get" through the lens of eidei mesirah (witnesses of delivery). He points to Gittin 86b, noting that for the Sages, even the "scent" of a divorce does not exist if the delivery was flawed. He contrasts this with the Yerushalmi, which suggests that the disqualification for a kohen arises specifically because the term "divorce" was mentioned.

The Rogatchover’s chiddush is that rei'ach get is not a form of divorce, but a form of speech-act that creates a legal shadow. By uttering the word "divorced," the husband creates a state of "unclarity" that the Sages then "colonize" with the prohibition of kehunah. It is not the get that disqualifies; it is the Husband's Declaration coupled with the Rabbinic Decree. This is a masterful reduction of complex status-law into a binary: the document is void, but the legal speech is binding.

Friction

The Strongest Kushya

The most persistent challenge to Rambam’s system is the "Double-Divorce" mandate. If a woman marries a second husband under a void get (making the second marriage technically adulterous), why does Rambam require a get from the second husband? If the marriage is void ab initio (as he states in 10:4), ein kiddushin tofsin be'eishet ish (consecration does not take hold on a married woman), then the second union is legally non-existent. Why demand a get for a non-marriage?

The Terutz (or Two)

1. The "Appearance" Defense (Ma'areh Ayin): As Rambam explicitly states in 10:5, the requirement is a gezeirah (decree) to prevent the public from saying, "A married woman was allowed to remarry without a get." It is a performative act of closure. The get from the second husband is not for the woman’s status, but for the public’s perception of the law.
2. The "Conditional" Fear: The Tosafot (and echoed in Kin'at Eliyahu) suggest that we fear the public might assume the first marriage had a retroactive condition that was fulfilled, thereby making the woman "technically" unmarried at the time of the second ceremony. Thus, the second get acts as a chumra (stringency) to ensure that even if the first marriage was technically terminated, the second marriage is definitively ended.

Intertext

• Talmudic Parallel: The logic of rei'ach get is structurally identical to the logic in Ketubot 60b regarding the nursing mother. In both cases, the Sages impose a status-limitation (delaying marriage) to protect a secondary legal interest (the child's welfare or the integrity of the get process).
• Responsa: The Rivash (Responsum 6) regarding Jewish marriage under secular law provides the essential context for why Rambam’s "wanton behavior" assumption holds: A marriage must be ke-dat Moshe ve-Yisrael. Without that intent, the act of sexual relations does not create a status of "wife," thus bypassing the need for a get entirely.

Psak/Practice

In modern application, the Rambam’s heuristic is the "System of Doubt." When status is unclear, the dayanim (judges) are not tasked with finding a "truth" (which may be unknowable), but with managing the legal fallout.

• Meta-Psak Heuristic: The principle of "don't create difficulties" (as seen in 10:14, where a couple is allowed to remain married if they have already remarried in specific circumstances) serves as a "harmless error" doctrine. If the damage of separation (illegitimacy, social ruin) outweighs the formal defect, the Sages prioritize the stability of the current domestic unit.

Takeaway

The Rambam transforms the get from a mere document into a semiotic signal; when the signal is garbled, the Sages intervene to define the woman’s reality by fiat, ensuring that the "wisp" of divorce does not become a fire of anarchy.