DANIEL SCHIFF
Despite these strictures the reality of the situation, which usually led the adulterous parties to live together and possibly to marry, brought rabbinic recognition of this status. Tradition gives its grudging consent by stating that if, nevertheless, the adulterous parties marry, they are not compelled to divorce(Shulhan Arukh Even Haezer 11.2ff. and commentaries, 159.3; Otzar Haposqim Even Haezer 11.1, 44).
A rabbi may, in this instance, find herself in a difficult position as she is duty bound to strengthen family life and defend the sanctity of marriage. If she, however, refuses to marry this couple, they may simply opt to live together, as is frequent in our time; that will not help their situation or the general attitude towards family life. Therefore, the rabbi should officiate at such a marriage, while at the same time discussing her own hesitation in keeping the tradition. She may insist on some special counseling before the ceremony. She should insist that it be a simple ceremony and one which places special emphasis on the seriousness and sanctity of marriage.”
Although it is true, as Rabbi Jacob observes, that traditionally the parties were“not compelled to divorce,” this was only in cases where two unimpeachable witnesses were unavailable. If, however, witnesses could be produced to attest to a reasonable certainty of adultery, the beit din would move to compel the divorce. Nor, of course, should the rabbis’ reticence to demand a divorce, when the probability of adultery was high but such witnesses were unavailable, be construed as anything more than what Rabbi Jacob appropriately terms“rabbinic recognition” that nothing could be done from a legal standpoint. It most assuredly did not indicate rabbinic approval of this relationship remaining intact, much less any notion that such a relationship could possibly be the beneficiary of Jewish sanction or blessing.