1,817. Rulings With Which the Rambam Disagrees

Hilchos Geirushin 10:18

If a man was secluded with his ex-wife in front of witnesses, the two witnesses observing at the same time and the couple being divorced from marriage (as opposed to from betrothal), then we suspect that they may have engaged in marital relations. The witnesses to their seclusion are therefore considered witnesses to intimacy. This is because one who betroths a woman through marital intimacy need not do so in front of witnesses. Rather, the couple enters into seclusion in front of witnesses and engage in intimacy in private. Because of this, the woman’s status is in doubt, as she may have been betrothed. This situation requires that she be given another get. However, if the woman was divorced from betrothal, we are not concerned that they may have been intimate because they were not already accustomed to such behavior.

Hilchos Geirushin 10:19

Several gaonim ruled that any time a couple engages in intimacy with witnesses, the woman requires a get based on the presumption that one would not act with promiscuous intentions. They carried this idea so far that they ruled that if a man’s female servant gave birth to his son, we take it into account so that the man’s wife wouldn’t perform yibum (if he dies without a child from their marriage). This is out of concern that the man might have freed the servant woman and subsequently been intimate with her. Some even ruled that we definitely assume that he freed her because a person doesn’t want to act promiscuously. The Rambam, however, doesn’t give credence to such opinions, considering them to have strayed far from the Torah’s intentions. It is therefore appropriate not to rely on them. Rather, the Sages only said such things about (a) a man with a wife whom he divorced and (b) a man who betrothed a woman conditionally and then engaged in intimacy without specifying his intentions. In these cases, the woman is the man’s wife and we assume that a man will not be intimate with his own wife with promiscuous intentions unless he says so explicitly, or says that he is engaging in this intimacy conditionally. This is not the assumption with other women. For example, if a man is intimate with a prostitute, we assume that his intention is promiscuous unless he explicitly says that his intention is to betroth her. This principle about presuming one’s intentions with other women to be promiscuous automatically applies to servant women and to non-Jewish women because there is no halachic marriage with them. Accordingly, we do not consider the possibility that he intended to betroth them. A son born from such a union is presumed to be non-Jewish or a servant until it is established that the child’s mother had been freed or converted.