27b----------------------------------------27b

1)

A DIVORCED COUPLE MUST DISTANCE THEMSELVES [divorce:distancing]

(a)

Gemara

1.

(Gemara - Beraisa): (Even though R. Zecharyah ben ha'Katzav swore that his wife was not defiled by the invaders, he accepted Chachamim's ruling and was never alone with her afterwards.) He designated a house for her in his Chatzer (courtyard). She would leave before her children and enter after her children.

2.

Question (Abaye): Is this set-up acceptable for an ex-wife?

i.

Perhaps we are lenient only for a Shevuyah (a captured woman). Or, perhaps there is no difference!

3.

Answer (Beraisa): A divorcee may not get married (and live) in her ex-husband's Shechunah (neighborhood);

i.

If he is a Kohen, she may not live in the same Mavoy (alleyway).

ii.

A small village is considered like a Shechunah (Bach's text - Mavoy).

4.

Question: Which of them must move away from the other?

5.

Answer (Beraisa): She must move from him. He need not move from her unless it is her Chatzer.

6.

Question: What is the law if they jointly own the Chatzer?

7.

Answer (Beraisa): She must move from him.

i.

This cannot discuss his Chatzer, for this would be obvious!

ii.

It cannot discuss her Chatzer, for then he must move!

iii.

Suggestion: We must say that they jointly own it!

8.

Rejection: Perhaps he is renting it.

9.

Question: What was the final ruling?

10.

Answer: Rav expounded "Hash-m will move you like a man moves" to teach that moving is harder for a man than for a woman (so she must move).

11.

Maseches Semachos (2:14): A man may not live in the same Chatzer or Mavoy as his ex-wife. If they jointly own the Mavoy, he opens (his Chatzer) to a different direction than her. If they jointly own the Chatzer, she leaves due to him. This is when she remarried, or a Kohen's ex-wife even if she did not remarry. A divorced Arusah or a Chalutzah need not move from her ex-husband or Yavam, for he is not intimate with her.

(b)

Rishonim

1.

Rif and Rosh (2:32): We are lenient only for a Shevuyah (to live in her husband's Chatzer). We do not allow this for an ex-wife. She may not remarry in her ex-husband's Shechunah, or live in the same Mavoy if he is a Kohen. A small village is considered like a Shechunah. She must move from him if they jointly own the Chatzer or he is renting it. If it is her Chatzer, he must move.

2.

Rosh: A Shechunah is bigger than a Mavoy. We are more stringent about Eshes Ish (a divorcee after she remarried) than about a Lav (a divorcee to a Kohen). If a Yisrael's ex-wife remarried and was widowed or divorced, (a Lav of Machazir Gerushaso forbids her, so) she is like a Kohen's ex-wife.

i.

Hagahos Ashri: R. Yonah permits if Reshus ha'Rabim separates the houses. Tosfos explains that his ex-wife did not remarry, therefore the Isur is light in his eyes. Had she remarried, the Isur would be severe and it would suffice to be three houses away.

ii.

Ran (DH ha'Podeh): A Kohen may not live near his ex-wife even if she did not remarry. (A Yisrael is forbidden only if she remarried.) A Shechunah is bigger than a Mavoy. If it was smaller, why would we consider a village to be like a Shechunah? Surely, a village is no smaller than a Mavoy! Rather, a Shechunah is bigger. When she remarried, the Isur is more severe, so we distance them more. Some say that if a Yisrael's ex-wife remarried and was widowed or divorced, she must separate like a Kohen's ex-wife, and it suffices to be in a different Mavoy. The Ri permits even in the same Mavoy, for we conclude that Machazir Gerushaso is lashed only if he was Mekadesh her and had Bi'ah with her. However, surely she may not live in the same Chatzer. The Ri of Orlins says that our Sugya discusses a Mavoy closed on one side. If it is open on both sides many people pass through and we are not concerned.

iii.

Gra (EH 119:15): Tosfos says that a Shechunah is smaller than a Mavoy. We are more stringent about a Kohen, for the Isur of a divorcee is light to him because she is single. The other Poskim say that a Mavoy is smaller.

iv.

Ran (DH Mi): The Gemara asks which of them must leave the Chatzer. This implies that it suffices to be in a different Chatzer! It seems that we discuss a Yisrael's ex-wife before she remarried. We may learn from this to the case when she remarried and must leave the Shechunah. Even before remarrying, she may be in the same Chatzer only if she will not be secluded with her ex-husband.

v.

Gra (ibid.): The Ritva permits even in the Chatzer, for the Gemara forbids only to remarry in the same Chatzer.

3.

Rambam (Hilchos Isurei Bi'ah 21:27): One who divorced his wife from Nisu'in may not live in the same Chatzer with her lest they have Zenus. If he is a Kohen they may not be in the same Mavoy. A small village is considered like a Shechunah. She must move from him. If it is her Chatzer, he must move.

i.

Question (Ramach): The Gemara forbids her to remarry in the same Shechunah! Before she remarries, there is no Isur of Bi'as Zenus! It seems that we are more stringent about a Kohen's divorcee than a Yisrael's divorcee who remarried, for in the latter case her husband guards her.

ii.

Answer (Ran DH Rav): The Rambam's text said that they may not live in the same Chatzer, and regarding a Kohen, in the same Mavoy. The Beraisa about a loan discusses a Yisrael's ex-wife before remarrying. The Ramach understands that a Shechunah is three houses.

(c)

Poskim

1.

Shulchan Aruch (119:7): One who divorced his wife from Nisu'in may not live in the same Chatzer with her lest they have Zenus.

i.

Chelkas Mechokek (17): It is forbidden even though she is single. Chachamim decreed against seclusion with a single woman. It seems that they may live in the same Chatzer if they avoid seclusion, like R. Zecharyah and his wife.

ii.

Rebuttal (Beis Shmuel 14): The Chelkas Mechokek explains like the Ran, whose text forbids remarrying in the same Shechunah. The Gemara never discussed living in the same Chatzer if she is still single. The Shulchan Aruch is like the Rambam, whose text forbids living in the same Chatzer before she remarries.

2.

Shulchan Aruch (ibid.): If he is a Kohen they may not be in the same Mavoy. A small village is considered like a Shechunah.

3.

Rema: If she remarried, even if a Yisrael divorced her she may not dwell with him in the same Mavoy.

i.

Chelkas Mechokek (18): The Tur and Rosh forbid even if she was later widowed or divorced, for Machazir Gerushaso is a Lav, just like a divorcee to a Kohen. The Ri holds that since there are no lashes for Machazir Gerushaso without Kidushin, we are no more stringent than when she never remarried.

ii.

Beis Shmuel (15): This is when she remarried and was widowed or divorced. As long as she is married she is forbidden even in the Shechunah!

iii.

Rebuttal (Gra 16): 'Remarried' connotes that she is still married. The Rema should say 'she may not dwell in the same Shechunah.' This is consistent with the Rambam (who does not discuss when she remarried) and the Ran (who says that a Shechunah is bigger than a Mavoy).

4.

Rema: We discuss a Mavoy closed on one side. If it is open on both sides and many people pass through, both may live there.

i.

Chelkas Mechokek (20): This is when he cannot get to her house without passing through the Mavoy.

5.

Rema: If Reshus ha'Rabim separates the houses it is permitted even if they are the only two Yisraelim in the city.

i.

Chelkas Mechokek (21): They can come to Isur, especially when her husband goes away. It is difficult to be lenient, especially if people suspect them.

6.

Rema (ibid.): If he divorced her because she is forbidden to him, even if she did not remarry she may not dwell with him, as if she remarried.

i.

Chelkas Mechokek (22): If she is forbidden mid'Rabanan, she may dwell with him in the Mavoy but not in the Chatzer, like a Shevuyah. If she is forbidden mid'Oraisa, she is forbidden even in the Mavoy.

ii.

Rebuttal (Gra 17 and Beis Shmuel 16): The Rivash (360) forbids in the Mavoy even when she is forbidden mid'Rabanan. Chachamim decree similar to Torah law. Chachamim were lenient about a Shevuyah; she is an exception.

7.

Shulchan Aruch (10): She must move from him. If it is her Chatzer, he must move.

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