Yevamot 86 - 92
Marriage Outside of the Levirate Marriage
The Torah states, “If brothers reside together, and one of them dies having no son, the dead man's wife shall not marry an outsider.” (Devarim 25:5)
The words “shall not marry an outsider” appear to be open to more than one interpretation, as we learn in our sugya.
In the section of the Torah teaching the laws of a the levirate marriage, we learn that a woman whose husband died without children is not viewed as a widow. Rather, she is still “connected” to her late husband’s family, with a connection known as zika. Therefore, there is a mitzvah for her husband’s brother to marry her (known as yibum), or have this special connection broken by completing the process of chalitzah. Then she may marry a man who is from outside of the family.
But what if she marries an outsider before yibum or chalitzah, while the special family connection is still intact? This question is the subject of this somewhat enigmatic phrase:“the dead man's wife shall not marry an outsider.”
Rav explains that her marriage to an outsider does not have halachic standing. In the words of the gemara: “Ein kiddushin tofsin — the marriage does not ‘take hold.’” When the Torah says that she shall not marry an outsider, it is not a statement of a prohibited marriage. Rather, the verb indicates that any such marriage between her and an outsider is just not a marriage and has no halachic validity. Therefore, she does not require a divorce document from him.
Shmuel, however, expresses a doubt as to whether Rav’s interpretation is correct. Another interpretation that he considers equally valid is that there is a prohibition for her to marry an outsider, but if she does, the marriage takes effect as a marriage. The marriage “takes hold.” This interpretation understands the phrase “the dead man's wife shall not marry an outsider” to mean that the marriage is in violation of Torah law, but the marriage is nevertheless a marriage and she would require a divorce document.
In the gemara’s conclusion, the Sage Ameimar says that the halacha is according to the view of Shmuel. We therefore find in Shulchan Aruch (Even Ha’Ezer 159) that in the event of this “outsider marriage,” a divorce document is required from the outsider. (A number of fascinating, practical considerations and consequences, both for the brother and for the outsider, are discussed in detail in the gemara and Poskim.)
An important note: It would seem from learning our gemara with Rashi’s commentary that the although the (attempted) marriage does not take hold, the parties involved have not transgressed a directive of the Torah. However, in the writings of Tosefot we find that that Rav indeed agrees that there is a prohibition against her marrying an outsider. This prohibition, according to Rav, is in addition to the total lack of the marriage’s halachic validity.
- Yevamot 92b