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If two eidim at a chasna are mechalel shabbos befarhesia from 20 years ago, can this fact be used to annul the entire marriage lemafraia.
For the marriage to be valid, you need *only one* of three things: kesef (ring), shtar (kesuba) or biah (yichud). Any one of those being valid and the marriage is valid. So you would need to invalidate all three before even questioning whether the marriage is valid.
If it was done before they became officially shomer mitzvos, I don’t think so, but its a very good question.
1. Note that we do the marriage ceremony at least three ways, any of which in theory would be enough. It would help if there wasn’t any hupah, kedushin, or biah as well, and no one knew they were living together as man and wife.
2. Arguing that the eidim are treff is an idea, depending on how desperate you are? It would certainly help if the married couple were clearly not frum (never went to mikvah, never kept kosher, never were Shomer Shabbos – thought the ceremony was something to amuse the grandparents and all that mattered was a civil ceremony).
3. Remember the only big change of a marriage being annuled under halacha is that the woman doesn’t need a “get”. Unlike the traditional goyish law in western countries, children of an unmarried Jewish couple are kosher (not “bastards”) and inherit from the father.
4. How desperate is it to treff up the marriage? Presumably the likely problem is that the woman ended up having children by a different man, and we don’t want those children to be mamzerim. In these situation, our rabbanim are quite creative in finding a basis to decide the marriage was treff. On the other hand, if the dispute is whether the woman gets a kesubah when the husband runs off with a trophy wife (after her being a good housewife for 20 years), the husband’s arugment that the witnesses were treff (and he doesn’t owe his long suffering virtuous wife any money) might not be as well received. If you look at actual cases (tseuvahs) rabbanim are really good lawyers and always have been (even if they will insist they are nothing like lawyers, which is really false modesty).
I would think so. If the eidim are passul, there is no wedding. The eidim are eidi kiyum hadavar, so swiet is not correct.
I believe (this is from memory) whether or not swiet is correct (at least l’chumra) is a machlokes R’Moshe and Rav Henkin. Rav Henkin held that there is anan sehadi that there was biah l’shem kiddushin and that was enough for eidim l’kiyum hadavar.
That’s interesting.
Who does the anan sahadi apply to? Does it apply to boyfriend and girlfriend? How about to a couple that davka did a conservative wedding to avoid agunah problems (they know enough, but aren’t frum)?
Also, I’m wondering when we wouldn’t use yuchzak anyway (I feel like it applies to marriage, but don’t actually remember). I mean, if they are holding themselves out as married, then we don’t need proof that there was a kiddushin, it is yuchzak. It happens to be that the underlying kiddushin would need eidei kiyum, but we’d assume that too under yuchzak. Is there a notion that we don’t do yuchzak when we know about an underlying kiddushin that was passul? But maybe they also did a real one?
I mean, can a couple avoid yuchzak by simply pointing to one passul marriage they did?
Even if the eidim are possul lekedushin, or for that matter le’edus in general (one could surmise ma’ase bekubia could apply), the messader kiddushin & another person (usually the chazzan, etc..) are always witnessing what’s going on, and that’s difficult to undo.
R.T.: Many people are noheig to specify who are the eidim to the exclusion of anyone else, in order to avoid problems of being mitztareif psulim to the eidus.
R.T.: But if the witnesses are treff, what else was treff. Would someone desiring to be married “K-das Moshe ve’Yisrael” choose treff witnesses? If you can argue that the parties never intended to be married according to halacha, and that the “mumbo jumbo” they said was intended as a sham, one can make a good argument the wedding wasn’t valid, and she doesn’t need a “get”, and her children from her next marriage are koshrt.
popa_bar_abba: While it’s true that we name the eidim involved, I have never seen or heard the words “to the exclusion of …” (or something similar) being stated, which implies that anyone *close* enough to the Chupah (and clearly not related to chosson & kallah) are witnessing the event.
It could be that that “loophole” is used when a Rav is marrying two people who may not be shomer shabbos (the “eidim” are not known to be shomer shabbos, either), particularly in outreach contexts, etc…
They don’t announce it to the crowd. They say it there to the involved party. And not everybody does this either.
popa_bar_abba: While it’s true that we name the eidim involved, I have never seen or heard the words “to the exclusion of …” (or something similar) being stated, which implies that anyone *close* enough to the Chupah (and clearly not related to chosson & kallah) are witnessing the event.
The mesader kidushin by my wedding did this.
The Wolf
This is a very complicated subject and indeed, R”moshe zz’l has various teshuvos on this. in general, you accept the wedding as is, especially as the couple lives as man and wife. However, in cases of possible mamzerus, Poskim have gone back and used this possible “out’ of a wedding to avoid the “psul’ of mamzerus.
swiet –
For the marriage to be valid, you need *only one* of three things: kesef (ring), shtar (kesuba) or biah (yichud). Any one of those being valid and the marriage is valid. So you would need to invalidate all three before even questioning whether the marriage is valid.
Not true. Eidim are neccessary. Stop spouting ameratzus in the name of halacha.
IIRC, the machlokes between R’ Moshe and R’ Henkin revolves around whether or not we apply the chazakah of “ein adam oseh b’ilaso b’ilas z’nus” to non frum people.
To those who argued: “swiet –
For the marriage to be valid, you need *only one* of three things: kesef (ring), shtar (kesuba) or biah (yichud). Any one of those being valid and the marriage is valid. So you would need to invalidate all three before even questioning whether the marriage is valid.
Not true. Eidim are neccessary. Stop spouting ameratzus in the name of halacha. “
You only need witnesses to one of them, so if your goal is to uphold the marriage,living together as “man and wife” works. And even if not, she’s a pilegesh (concubine) which isn’t such a bad deal (compared to traditional English law where many bad things happened if you were “living in sin” – including the children couldn’t inherit from either parent).
However if you need to find an excuse to pasul the wedding, one can argue that marriage also needs kavanah (intent) to be married.
This is interesting sugya. Maybe I read some stuff on it.
PBA: The “to the exclusion of all others” was a Chumra of R’ Soloveitchik (his Lashon too). All of his Talmidim do that.
No one holds like R’ Henkin nowadays. We don’t assume that all reform people are Safek Mamzerim. Even those Batei Dinim that won’t deal with a situation of a reform person (because they’re scared to go against R’ Henkin) will always accept a marriage and children that were Kosher according to R’ Moshe in this.
Akuperma: No. The Kiddushin is only done with Kesef. The Badeken, Chuppah, and Yichud room are all for Nisuin. And the Nisuin was all done Al Da’as the initial Kiddushin. If there is no initial Kiddushin, there is no marriage.
IIRC, Rav Soloveitchik felt that a Reform convert was a safek ger, and if such a woman were to remarry (of course, without a get), the kids would be the only thing worse than mamzerim- safek mamzerim.
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