Week Six: Even HaEzer 11 - A Woman’s Possible Adultery

A Mishnah in Sotah 27a articulates a crucial but perhaps lesser-known element of Judaism’s reaction to adultery. R. Akiva, R. Yehoshu’a in the name of Zechariah b. HaKatzav, and Rebbe all agree on the halachic impact of the Torah’s describing a wife’s adultery with the word ve-nitme’ah, usually translated along the lines of “she becomes defiled.” It most often refers to acquiring a status preventing a person from involvement with terumah, sacrifices, the Temple, and the like.

For Bamidbar 5;29, the word teaches a different tum’ah, her affair requires ending the marriage, nor may she marry the man with whom she had the affair (the rabbis in the Mishnah in Sotah disagree about the derivation, with no impact on the halachah).

Where It Is Intractably Unknowable

Aruch HaShulchan Even Ha-Ezer 11 starts with what would have happened in the time of the Temple. A man who suspected his wife’s faithlessness would be mekanei, warn her in front of two witnesses not to be secluded with a particular man, where they could possibly consummate an affair. If she then did—I’m not sure why she would, but tradition found it plausible—she and her husband may not have marital relations until she undergoes a sotah ceremony.

Because we do not currently have a sotah ceremony, I’ll leave that discussion for, God willing soon, when the Temple is rebuilt. [I think AH might have included it because it sheds light on burdens of proof in marriages breaking down, but it takes us too far afield.] Without a Mikdash, only eyewitness testimony proves an affair, forcing divorce.

Se’if fourteen records Shulchan Aruch’s requiring derishah ve-chakirah, a high level of interrogation of the witnesses, to ensure they are not lying. The next paragraph says the husband and wife must be present for the testimony, as interested parties; were these witnesses to come after the woman already married her suspected adulterer, he, too, would be an interested party.

Trying to Protect the Children

In other types of cases, if a couple marries wrongly but has children by the time a court is involved, the court will let them stay together to avoid casting aspersions on the children’s lineage. Not here; since this woman may not stay with her husband by law, she similarly may not marry the presumed adulterer and if she does, must separate from him despite the cost to the innocent children.

For an example of where children lead us to let them stay together, we have to consider the idea of ki’ur, where a married woman is seen involved in deeply inappropriate activity with another man—but not yet adultery. Examples from se’if four include yichud, they were alone together for sufficient time to have had marital relations, and people walked in on them getting dressed; witnesses see them coming out of a dark place, helping each other out of a pit, see them kissing, or going somewhere and locking a door. Se’if seven points out yichud does not require divorce, but does count as ki’ur.

Maharshal said the couple lying on top of each other is not ki’ur as long as they are clothed.

Given the multitude of possibilities, AH says the definition of ki’ur is up to each judge, an explicit example of a lack of an absolute standard. The Vilna Gaon held that ki’ur obligates divorce, others disagree, but AH thinks the husband should be stricter than the law, divorce her in these types of circumstances. If he does, because she was seen in ki’ur circumstances, she may not marry the other man.

Here, were they to already have children, we would not force a divorce, for the sake of the children’s reputation. (In se’if twelve, though, AH says that if they were warned before the marriage not to, and did it anyway, that doesn’t count as bedi’avad, after the fact, and we would still coerce a divorce. However, some acharonim were willing to be lenient where the only reason for them not to marry was to avoid rumors.)

Ki’ur also allows us to notice the prohibition of the woman staying with her husband was only if she had actual marital relations with someone else. There are a variety of improper forms of intimate activity she might commit with someone else, and halachah would not require a divorce, although for many of them, the husband would be encouraged to separate from her.

Where She Could Not Marry the Adulterer Who Did Not End Her Marriage

In se’if three, AH claims a woman who committed adultery with two men would not be allowed to marry either, even though the second affair had no impact on her marriage (it already had to end after the first affair). Tosafot Ketubbot 9a said that a man who knows he committed adultery with a woman must not marry her, regardless of whether the husband ever found out.

(They mean the prohibition to the adulterer is a question of fact, irrespective of proof or ramification. Similarly, if a husband knows his wife had an affair, even without court-accepted proof, he may not stay married).

In a different circumstance, AH understands Yerushalmi to say should the woman have been a shogeget, which technically means she was not aware of what she was doing but to AH is halachically equivalent to her being raped [the example that comes to my mind is where she honestly thinks this is her husband], she can stay with her husband, but would not be allowed to marry the adulterer, since he knew what he was doing. Reverse the circumstances, she knew what was going on and he didn’t [he didn’t know she was married, for example], she may not stay with her husband and therefore not later marry him, either.

Rosh Yevamot 6;6 thought normative practice would never prohibit her to the adulterer if she was permitted to the husband. Beit Shmuel raises the possibility a court might prohibit them from marrying as a way to uphold proper marital conduct, but in such situations might not force a divorce if the second couple already had children.

Se’if eight has one last example, if the husband divorced her for ki’ur, the suspected adulterer should not marry her even if she married someone in between. While we know the suspected affair did not produce a child, ki’ur with a (non-mandated) divorce precludes marriage to the presumed adulterer. Unless they’ve already married and have children, where our concern for the children lets them stay together, even according to those stringent in other examples.

AH adds, however, that if witnesses to the consummated affair ever come forward, she will have to leave the marriage to the adulterer, even if they have children.

The Role of Rumor

Se’if four expands our understanding of ki’ur, it needs to be combined with persistent rumors about this affair, for at least a day and a half, spread by people not enemies to either (enemies work to keep negative information alive; the day and a half standard appears in the Gemara, an idea ripe for reconsideration in new cultures). Without rumors, we would not intervene to force a divorce from the possible adulterer, even if they have not yet had children, even if we have one witness who says he saw them in their affair when she was still married.

For a bit of a financial wrinkle, se’if 9 tells us wherever a court would require a man to divorce his wife because of the suspicion of infidelity, he need not pay her ketubah. If he chose to divorce her (with evidence, but not clinching evidence), he also has to give her the money she is owed.

More Marriages That Should Not Happen

Se’if 10 moves us to other marriages. Although widely ignored today, when a Jewish man or woman was suspected of being involved with a non-Jew, the couple was not supposed to marry even if the non-Jew became Jewish. AH points out this is only to avoid rumors of their prior entanglement, and therefore is not enough of a violation for a court to intervene with a divorce. Couples who aren’t supposed to marry should also not live near each other, we learn in se’if eleven, nor have regular interactions.

In se’if thirteen, one final surprising idea, AH thinks it an avon pelili, a serious sin, for a man to divorce his wife in order for her to marry someone else. To his mind, it was why the Torah prohibited remarrying a wife who had married someone in between, to avoid wife-swapping arrangements.

A siman reminding us of the significance of adultery in Judaism, its continuing ramifications for the original couple, the adulterous couple, and the children of the marriages involving the couple.

Adapted from articles previously published on Torah Musings