1) A MAN WHO DENIES THAT HE MARRIED A WOMAN, BUT HE GIVES HER A GET
QUESTION: The Mishnah teaches that when a woman says to a man, "You were Mekadesh me," and the man denies it, she is prohibited forever to his relatives but he is permitted to hers. Moreover, she may not marry anyone until she receives a Get from the man who she claims married her.
Rav rules that "we force" the man to give her a Get, and Shmuel rules that "we request of him" to give her a Get. The Gemara concludes that both Rav and Shmuel agree that Beis Din only requests from the man to give her a Get, because giving her a Get renders him prohibited to her relatives. When Rav says that Beis Din forces him, he refers to the giving of the Kesuvah and not the giving of the Get. Once the man willingly gives a Get to the woman, Beis Din may force him to give her a Kesuvah because the giving of the Get is effectively an admission that he married her.
The Mishnah clearly states that since the man says that he did not marry this woman, he is permitted to marry her close relatives. Why, when he gives her a Get, does he become prohibited to marry her relatives? He has not changed his position at all but still claims that he never married her.
(a) The TAZ (EH 46:2) explains that the prohibition to marry her relatives after he gives her a Get (which Rav discusses) is not the same type of prohibition the Mishnah mentions when it says that the woman may not marry his relatives. The prohibition in the Mishnah is an Isur d'Oraisa based on the principle of "Shavyei a'Nafshei Chatichah d'Isura" (see Rashi on the Mishnah). In contrast, the prohibition which exists after he gives her a Get is an Isur d'Rabanan which the Rabanan enacted because people who see him give her a Get will assume that they were married and that the Get is a real divorce. If the man would be permitted to marry one of her relatives, people might mistakenly think that in all cases of divorce the man is permitted to marry the relatives of his former wife. In order to prevent such an error from occurring, the Rabanan prohibited this man from marrying the woman's relatives.
(b) The BEIS SHMUEL (EH 46:3) offers a different explanation. When a man gives a Get to his wife, he effectively makes the statement that whatever is written in the Get is true. Therefore, in the case of the Mishnah, although the man has not openly retracted his claim that he never married this woman, when he gives her a Get it is assumed that he retracts his original claim and now agrees that he married her as is stated in the Get.
The Beis Shmuel bases his explanation on a ruling of the REMA. The REMA (EH 46) maintains that this Halachah -- that a man who gives a Get to a woman becomes prohibited to her relatives even though he claimed that he never married her -- applies only to the man and not to the woman. That is, the man originally claimed that he did not marry her, and now he agrees to give the woman a Get in order to free her from the state of Isur which she created for herself ("Shavyei a'Nafshei") by claiming that she accepted Kidushin from him. The act of giving the Get makes the man prohibited to the woman's relatives (and the woman, of course, is prohibited to the man's relatives because of her claim that she was married to him).
However, in the converse situation this Halachah does not apply. When the man claims that he married the woman and the woman claims that she never received Kidushin from him, but she accepts a Get from him in order to clear herself of any "Kol" (rumor) that she is married to him, she does not become prohibited to his relatives.
What is the difference between this case and the Mishnah's case, in which the man claims that he never married her but agrees to give her a Get?
The Beis Shmuel explains the difference as follows. It is the man who plays the active role in the process of divorce. Mid'Oraisa, a man may give a Get against the will of the woman. As mentioned above, when a man gives a Get he effectively makes a statement that everything written in the Get is true. Therefore, the man becomes prohibited to the woman's relatives because, by giving a Get, he shows that he agrees that he was married to her. In contrast, the woman plays only a passive role in the process of divorce, and a Get can be given to her against her will. Therefore, the fact that she receives a Get is not a statement on her behalf that she accepts as true everything written in the Get, and thus she remains permitted to marry his relatives.
2) INTENTION FOR KIDUSHIN
QUESTION: Beis Shamai and Beis Hillel disagree about the law in a case of a man who divorced his wife and then secluded himself with her. Beis Shamai maintains that no new Get is necessary, since we do not assume that the man lived with his former wife with intention to be Mekadesh her again. Beis Hillel maintains that a new Get is necessary, since we assume that the man lived with his former wife with intention to be Mekadesh her again. The Gemara concludes that the dispute involves a case in which witnesses saw them seclude themselves with each other, but no witnesses saw the act of Bi'ah. Beis Shamai maintains that the testimony of the witnesses who saw the seclusion, Yichud, does not qualify as testimony that there was Bi'ah. Beis Hillel maintains that the testimony about the Yichud does qualify as testimony that there was Bi'ah ("Hen Hen Edei Yichud, Hen Hen Edei Bi'ah").
However, according to Beis Hillel, even if the testimony that there was Yichud qualifies as testimony that there was also Bi'ah, why does that act of Bi'ah constitute a valid Kidushin? Perhaps the man intended to be promiscuous with his former wife and not to perform an act of Kidushin. (See RASHI, DH Amrinan Hen Hen.)
ANSWER: The RITVA explains that since the man was married to the woman, it is assumed that he has intention to have relations with her within the law and not perform an act of promiscuity with her.
In contrast, when witnesses see a man seclude himself with a Penuyah (a woman who was never married), the presumed act of Bi'ah is assumed to have been done with promiscuous intent and not for the sake of Kidushin, and thus the woman does not need a Get from the man in order to marry someone else.
HALACHAH: The issue of whether a man has intention for Kidushin or for promiscuity when he has relations with a woman to whom he is not married has important practical ramifications today. Contemporary Halachic authorities discuss the status of a civil marriage. The actual "marriage" itself is meaningless since it is not a Halachic procedure and does not create Kidushin. However, after the civil procedure has been performed, when people see the man and woman living together they might constitute "Edei Yichud," in which case the principle of "Hen Hen Edei Yichud, Hen Hen Edei Bi'ah" would apply. The witnesses who see the man and woman in seclusion together constitute witnesses that they had marital relations. Since the man and woman underwent a civil marriage ceremony, they clearly intend to live together as husband and wife. Accordingly, perhaps this is sufficient grounds to assume that the Bi'ah was done "l'Shem Kidushin," for the sake of Kidushin, and they indeed are married according to Torah law. The consequences of this question may be very serious. If the man and woman later decide to get divorced through a civil procedure (without a proper Get) and the woman marries another man, the children from the second marriage are Mamzerim since she is still married to the first man.
RAV ELIYAHU HENKIN zt'l ruled that the Yichud which occurs subsequent to a civil marriage does create Kidushin. According to his ruling, all children born to the woman from a second marriage after she was divorced from her husband through a civil procedure are Mamzerim.
RAV MOSHE FEINSTEIN zt'l ruled leniently on the matter. His leniency was based on a number of proofs that a person who is suspected of transgressing Torah prohibitions is also suspected of having relations with promiscuous intent. Although the man and woman expressed interest in being "married," that does not mean that they were interested in the actual concept of marriage that exists through Kidushin. The obligations and responsibilities (Shibudim and His'chayevus) which are created through Kidushin are not part of the secular world's concept of marriage. Since the man's intent cannot be clarified, and since such persons are suspected of promiscuity, it is assumed that no Kidushin took effect. (See IGROS MOSHE EH 1:74 and 2:19.)