There are few questions with as much energy and emotion as those relating to a partner who has betrayed the commitment of monogamy. While certainly not all couples today believe in having a single sexual partner, those that do consider it to be the most important of obligations. To break that trust is to violate a sacred agreement. The authors of the Bible understood this. They characterized adultery as the most serious of crimes, punishable by death. We do not follow this practice today, but the seriousness of the decree should inform our understanding of the nature of the transgression.
However, the Bible also understands sexual identity as an exchange of property and adultery as a form of theft. Ownership of sexuality is granted from the father to the husband through the transaction of marriage. Clearly, that rule no longer applies within the Jewish community. Young women are not owned by their fathers or husbands, and not all relationships are of mixed-gender. To answer your question, it is important to broaden our scope to better serve all couples who choose this path of monogamous partnership.
Marriage, life partnership, or any other form of commitment, is a sacred trust. One that people make in the presence of the Divine and one the community affirms through ritual. We hope that all partnerships will last a lifetime, but that is not always the case. Sometimes people stray. For whatever reason, when that commitment is broken and a partnership dissolves, the giving of a get can free each partner to pursue their own lives. In fact, the get document includes the phrase, “I release you and set you free.” In doing that, a couple dissolves their commitment and frees each party to pursue happiness, however they choose.
While it is always painful for all parties, sometimes an adulterous relationship can become a successful partnership. With proper counseling and commitment, I believe it is possible to have a successful marriage under these circumstances. It is important to think of children, families, and extended circles of connection as well. Sometimes the consequence of pursuing a relationship can be devastating.
Certainly, we do not have all the answers. I am very aware of the limitations of my role in this conversation, as well as the need for good counseling for anyone going through a process like this. While I would deem it permissible for a woman to marry the man she had an affair with, I would strongly encourage counseling. There are always deeper issues when a partner is unfaithful in their relationship, and those issues must be explored before a new healthier relationship can emerge.
You ask a painful and delicate question, one that is almost certainly best posed with all of its accompanying circumstances to a knowledgeable and sensitive rabbinic authority. That said, and in the absence of the details of the particular case, two operative principles may be noted as relevant here.
At face value, the answer to the question is “no”. The Talmud (Tractate Sotah, also Ketubot) presents as a matter of legal principle and tradition that a woman who commits adultery may not remain married to her husband nor may she marry the man with whom she has committed the affair. She is forbidden to both of them, even after a proper divorce has been completed with a gett. This is codified as law in the Shulchan Aruch, in section Even HaEzer 12:1.
However, there is a complicating factor that comes into play as far as applying the abovementioned principle in practice: verifying to the satisfaction of Jewish law that the affair has indeed taken place. While in monetary matters a simple admission of guilt can create a legal obligation to pay, this is a result of a person’s ability to bind himself into most any financial commitment of his or her choosing. However, in non-monetary matters such as ritual or sexual commandments, a person’s own admission of guilt is not accepted as legally compelling. This principle of “A person cannot [via admission of guilt] cause himself to be considered wicked” is found in the Talmud in Tractate Sanhedrin 9B and is codified as law in the Shulchan Aruch in section Choshen Mishpat 34:25. It effectively means that in areas of Biblical prohibition (some say that this applies to Rabbinic prohibitions as well) one cannot legally incriminate oneself through confession of guilt.
In order to be sure that an affair has taken place, Jewish law requires either the testimony about the affair of two kosher witnesses that are related to none of the parties involved, or alternately the testimony of two witnesses that the husband warned his wife not to go into a secluded place with this man and then testimony that she indeed did so. These circumstances are far less common, and as a result it is very difficult to establish with legal certainty that adultery has taken place (and that the subsequent marriage is forbidden) even if it is excruciatingly clear on a personal level. Answered by: Rabbi Judah Dardik
Adultery is a very serious sin in the Jewish tradition; so much so that it makes it to the “Top Ten List” (see Ex. 20 and Dt. 5). Traditionally, according to Jewish law (halachah) a married woman who commits adultery may not marry her lover even if she receives a writ of divorce (get) from her husband. It should also be noted, that she is also forbidden to remain married to her husband. The most succinct statement on this is found in the Mishna, Sotah 5:1 which states: “Just as the adulterous woman is forbidden to her lover, so is she forbidden to her husband.” Nonetheless, to the best of my understanding, if the woman were to disregard the law and go ahead and marry her lover (or likewise remain married to her husband) the marriage would be valid ex post facto under the principle of “kiddushin tosfin” (a marriage that should not have taken place but is legally binding nonetheless).
While traditionally, Judaism did not treat adultery the same way for men as for women, in our modern egalitarian society, we should apply the same principles regardless of the genders of the participants. Also, in our day when many non-Orthodox communities accept some form of same-sex marriage, I would say we need to treat adultery just as seriously whether the couple is straight or gay. While much of our modern culture does not regard adultery as a grave sin, from the Jewish perspective it is a denial of the holiness of marriage.
That being said, most rabbis today would explore the possibility of reconciliation even where adultery has taken place. Marriage is complicated and every situation is unique, but if the goal of the halachah is to protect the sacredness of marriage, we should hold out the possibility of forgiveness and reconciliation.
It is a sad situation. A marriage that once held hope for a couple has dissolved and a new relationship has emerged before the difficulties that beset the first were fully resolved. Do the parties to the marriage and the affair have a responsibility to resolve the outstanding issues before moving on?
This question was addressed to the Responsa committee of the CCAR (the Reform Movement's rabbinical organization) in 1986. The specific question asked if the rabbi who has received such a request should perform the wedding ceremony. The full responsa can be found at http://data.ccarnet.org/cgi-bin/respdisp.pl?file=192&year=carr .
The answer notes two sides to the question.
On one hand, there is a clear prohibition in classic sources on a marriage between an adulterer and their lover – regardless of whether the adulterer is male or female. The sources go on to note that a woman who commits adultery may not subsequently remarry her husband nor may she marry her lover, even after the death of her husband. These sources underscore the sacred nature of a marriage and refuse to acknowledge any legitimate union coming from a betrayal of that bond.
On the other hand, the sources recognize that there are times when a marriage takes place despite their disapproval. In that case the sources affirm the marriage as valid. There is no benefit in censuring or punishing the couple. After all, it is now a marriage in fact and one hopes that it may fulfill the hopes of the couple for a loving and sacred relationship.
Our question addresses the situation after the get, the formal divorce decree, has been issued. The unraveling and reweaving of these strands of relationship are complex and may have unexpected consequences. One hopes that the process that led to the divorce agreement included formal counseling and personal soul-searching.
Copyright 2014 all rights reserved. Jewish Values Online
N O T I C E
THE VIEWS EXPRESSED IN ANSWERS PROVIDED HEREIN ARE THOSE OF THE INDIVIDUAL JVO PANEL MEMBERS, AND DO NOT
NECESSARILY REFLECT OR REPRESENT THE VIEWS OF THE ORTHODOX, CONSERVATIVE OR REFORM MOVEMENTS, RESPECTIVELY.