תשובות בעת מלחמה (אנגלית), גירושין ונישואין מחדשCollected Responsa in Wartime, Remarriage and Jewish Divorce
א׳
1Question:
ב׳
2A soldier intends to return home to marry his fiancee in the near future. This man was divorced by the State Government several years back and he gave his wife a "get". He has no written evidence to show that he delivered a "get" to his wife. He does not even remember the name of the rabbi, nor the names of any of the witnesses. His estranged wife's family furnished the rabbi and they will not give him any information. The soldier's attorney was present at the time and he happens to know the date on which the "get" was written. This is the only information that the soldier has.
ג׳
3Will an orthodox rabbi perform the wedding ceremony if the soldier cannot produce any written evidence that he gave a "get" to his first wife?
ד׳
4(This responsum is not given as a decision by the CANRA but as information to the chaplains. In such a matter it is recommended that the chaplain consult a competent Orthodox authority.)
ה׳
5Answer:
ו׳
6The Talmud in b. Baba Bathra 34b and 35a discusses the question of whether a man is believed if he says he divorced his wife and no other evidence is adduced. The conclusion which the Talmud comes to is that he is not believed with regard to her past status (l'mafraya) but is believed with regard to her present and future status (l'haba). That is to day, she cannot, merely on the basis of his statement, be considered to have been divorced from the date that he declared he gave her the divorce, but she can be considered divorced from now on; for if he wishes he could divorce her now. Therefore there is no reason to disbelieve his statement.
ז׳
7However, Maimonides (Hil. Gerushin XII, 5) decides that he is not to be believed, and says that we should say to the man, "If you wish to divorce her, divorce her now." Likewise, the Shulhan Aruch, Even Haezer 152,I, says that he is not believed if he make a statement that he divorced his wife but that the wife, however, is in the status of being dubiously divorced.
ח׳
8Thus the Talmud permits him to be believed about the future status of his wife; and while Maimonides says he is not to be believed, Maimonides evidently visualizes both husband and wife being present since he suggests that he should divorce her now. Joseph Karo acknowledges that the wife is in a state of dubious divorce. It is evident, therefore, that when her husband makes the statement that he has divorced his wife, he is to some extent believed.
ט׳
9The particular case which Chaplain Buaman presents before us is not quite the same as the one dealt with in the Talmud and the codes. In the case before us we are not dealing with the status of the woman, which is always strictly construed, but rather with the status of the man, which is less strictly construed. Furthermore, in this case we do not rely entirely upon the mere declaration of the husband. The lawyer testifies that he was present at the divorce and knows the date on which the get was written.
י׳
10Therefore we are not dealing with a case which is dependent entirely upon the man's statement, but one in which "there is some report" of the divorce proceedings (Yesh lo kol). See Rashi to b. Baba Bathra 134b; also Ture Sahav to Even Haezer 152,I; and also Beth Shmuel ad loc. Therefore the man should be permitted to marry the woman to whome he is now engaged.
י״א
11It is urged at the suggestion of Dr. Jung that in such cases an attempt be made to discover who gave the "get". The man involved, therefore, should give us his Hebrew name and the name of his former wife and an advertisement should be inserted in the Jewish Morning Journal (which is read by Orthodox rabbis) asking for information with regard to this particular divorce.