To Wait or Not to Wait Three Months?

Moshé Álvares

13 Nisan 5507/24 March 1747

Peri Eẓ Ḥaim, Vol.3 simán 34 (pg 411)

Question:

An apostate [meshummad] man and apostate [meshummedeth] woman married according to civil law, and came to complete repentance, and now they desire to marry according to the Law of Moses and Israel, by way of huppáh we-qiddushín. The issue is if they are required to wait three months before marrying in order to distinguish between a pregnancy initiated before the return or after the return, similar to a proselyte which is required to wait three months. Are they required to wait three months or not, being that even though they were apostates, they are still considered Israelites in every sense, therefore not required to wait three months?

Response:

Moshé Álvares begins his responsum by citing Chapter He-Ḥoleẓ (b.Yebamoth 41a), where it establishes that a yebamáh [widowed sister-in-law] does not enter into marriage as a yebamáh nor released through ḥaliẓáh until after three months. This is the law for the rest of the women, whether widows, divorcees, betrothed, etc. (b.Yebamoth 42a): 

He cites the relevant sugyá of the Gemará:

Rab Naḥmán said that Shemuel said: It is due to the fact that the verse states with regard to Abraham: “To be a God to you and your seed after you” (Genesis 17:7), the woman must wait so that it will be possible to distinguish between the seed of the first husband and the seed of the second husband. After three months, if she has conceived from her previous husband, the pregnancy will already be noticeable. Rabá raised an objection from a baraitá: Therefore, on account of the requirement to wait three months, a male convert and a female convert who were originally married to each other and converted need to wait three months before they may remarry following their conversion. Rabá asks: Here, in this case, what reason is there to distinguish? Even if they do not wait and she is found to be pregnant, it is clear who the child’s parents are. Rabá stated a different reason for the need to wait: It is a rabbinic decree lest a child be born and be incorrectly identified as the son of his mother’s second husband when he is fact the son of her first husband. This could result in him marrying his paternal sister, unaware of the true relationship between them, or consummating a levirate marriage with the wife of his maternal brother under the misconception that his maternal brother was also his paternal brother. This would be prohibited because the prohibition to engage in relations with one’s brother’s wife is waived only in the case where there is a miẓwáh of levirate marriage, which applies only to paternal brothers (b.Yebamoth 42a).

Álvares then cites Rashi, who explains, “the Divine Presence rests with someone only when his seed can be identified as being descended from him, i.e., there are no uncertainties with regard to their lineage. The proselyte male and female who converted together must separate for three months to distinguish the offspring before and after; there is no first nor second in this case. 

Then Álvares summarizes what one learns from the Gemará and Rashi’s commentary on the matter. Next, he cites the Rambam: a maidservant which is released into freedom, or a non-Israelite woman and her non-Israelite husband who converted together, must wait ninety days before marrying, in order to distinguish between the offspring before and after the conversion (Mishnéh Toráh, Laws of Divorce 11). 

Moshé Álvares presents a conflict between the Tur (Yoréh De’áh simán 269; Eben Ha-Ezer simán 13) and the Rif, finding it difficult to accept the opinion of the former. 

Álvares then continues explaining his difficulty with Rashi’s comment on the sugyá in Chapter Ha-Isháh Niqanith: 

Rab Ḥiyyá bar Abin says that Rabbi Yoḥanan says: By Torah law a gentile inherits from his father, as it is written: “Because I have given mount Seir to Esau as an inheritance” (Deuteronomy 2:5). The Gemará asks: But perhaps it is different with regard to an apostate Jew? Rather, the proof is from here: “Because I have given Ar to the children of Lot as an inheritance” (Deuteronomy 2:9) (b.Qiddushin 18a). 

Álvares proceeds to cite the Rambam on the halakháh of inheritances: 

The goy inherits his father’s possessions is a matter of the Toráh, but the rest of the inheritances are handled according to their customs (Mishnéh Toráh, Laws of Inheritances 6:9). An interesting note here is that Álvares cites the Rambam using the word goy [non-Israelite] and not akum [star worshipper]. The censored versions of the Mishnéh Toráh found throughout Europe use akum, while the Yemenite manuscripts utilize goy. This means that the manuscripts used at the Eẓ Ḥaim seminary were not the censored versions. 

Then he cites the Tur on the same halakháh (Tur Ḥoshen Ha-Mishpat 283:1). Then he cites the Rambam again to prove a point that most women who have intercourse stay with their men and one should not raise suspicion about her children, whether they are mamzerim or not (Laws of Forbidden Intercourse 15:20). This ḥazaqáh [legal presumption] is established from the sugyá in the Gemará which states most women which sustain intercourse do so with their husbands (b.Sotáh 27a). Thus, even though she may be promiscuous, her child inherits from his father, being that the father is most likely from her husband. As such, no one should suspect the child of being a mamzer. 

Based on the Rambam’s ruling, Moshé Álvares doesn’t find any reason to deviate from it. Thus, Álvares concludes that since this couple was away from Jewish practice and the woman had no guardians to watch her practice, one cannot apply the legal presumption in her case. Therefore, the couple must wait three months before marrying and having intercourse, lest the child born be from another man and later the son have to enter a levirate marriage with his sister-in-law. What the Sages say about an Israelite still being an Israelite after transgressing refers to the holy status of the individual. Therefore, the law for married male and female proselytes applies to married apostates who return. 

This responsum teaches us that the ḥazaqáh applies when the majority of people have a certain modus operandi. Nowadays when there is freedom of conscience in many parts of the world, people can choose to live areligious lifestyles. As such, the sanctity of marriage unions do not have the importance that they used to. In fact, people engage in casual sex without any repercussions. I say that this ruling still applies today, except perhaps in Islamic countries where women are constantly watched by men.

Once again, this responsum demonstrates that the halakhic rulings at the Eẓ Ḥaim seminary followed the Rif and the Rambam above every other legal text.