The mishnah we encountered back on Yevamot 87 details a situation that surely makes a top ten list of worst nightmares ever. Witnesses tell a woman that her husband has died while traveling. The woman then remarries, only for her husband to reappear alive.
On today’s daf, the rabbis are still discussing the repercussions for the woman and both her first and second husbands, as well as any children born during the second marriage who would be categorized as mamzerim.
Two of the consequences listed in the mishnah are that the woman requires a get (divorce decree) from both her first and second husbands and she forfeits the money promised to her in her ketubah (marriage contract). While the Torah doesn’t actually require a ketubah, it does require (in Deuteronomy 24:1) that the husband issue a formal contract of divorce rather than simply cast her aside as he wishes.
As we will continue to see throughout Seder Nashim — the set of tractates that we are learning right now — the rabbis typically attempt to protect women in a variety of ways. That’s what makes this next passage so curious.
The rabbis state:
In the case of this woman, the sages actually prefer that she will be demeaned in his eyes such that he will easily divorce her.
The point of a get is that a husband should not be free to simply leave his wife, but must issue a formal contract of divorce. In the case of our mishnah, though, the rabbis on today’s daf are explicit about the fact they do want to make it easy to divorce this particular woman. Why is that? Because in the eyes of the law, the woman is considered an adulteress once it becomes clear that her first husband is still alive. And therefore, she forfeits any assets promised to her in her ketubah, as well as any assets she gained during the marriage. The rabbis state this explicitly on today’s daf:
She does not have claim to profits, or sustenance, or worn clothes, because the stipulations in the marriage contract are considered like the marriage contract itself.
In other words, because the woman (although unknowingly) committed adultery by wedding the second man, the original marriage contract, with all its protections for the woman, are rendered null and void. Maimonides, writing several centuries later, cements this law (Hilchot Ishut 24:6), ruling that the woman is penalized with the loss of her ketubah money and property because she slept with someone else while her first husband was still alive.
Neither Maimonides nor the rabbis of the Talmud seem to factor into the law that this situation was wholly unanticipated, not to mention unwanted. The woman in our scenario remarried in good faith, counting on the testimony of witnesses who were, tragically, wrong.
I don’t know why the rabbis on our daf did not find a way to exercise more compassion that would be consistent with their general desire to protect women. As we know, sometimes bad things just happen. In this notably difficult case, the law stays firm, requiring the woman who remarries while her first husband is alive to forfeit her assets, and get divorced.
Read all of Yevamot 89 on Sefaria.