Regarding this topic, please refer to my previous postings (http://d.hatena.ne.jp/itunalily2/20180422)(http://d.hatena.ne.jp/itunalily2/20180423)(http://d.hatena.ne.jp/itunalily2/20180426). (Lily)
(http://www.jewishvirtuallibrary.org/marriage-prohibited)
Legal Consequences of Prohibited Marriages
FAMILY LAW ASPECTS
So far as the parties themselves are concerned, no legal consequences at all attach to a marriage which is forbidden as עֶרְוָה (incestuous) according to pentateuchal law, and there is therefore no need for them to be divorced (Sh. Ar., EH 15:1, and Ha-Gra thereto, n. 3; Sh. Ar., EH 44:6); their children will be mamzerim. Only a marriage of a married woman to another man, although invalid, requires that the woman obtain a divorce not only from her husband but also from the paramour (see *Divorce; *Bigamy; *Agunah).
In the case of prohibited but valid marriages either party is entitled to demand a divorce, whether or not either or both parties were aware of the impediment at the time of the marriage or at any time thereafter. In case of the other party's refusal, divorce may be compelled, except in the case of a marriage contracted within 90 days of dissolution of the wife's previous marriage (Rema, EH 13:10). The need for divorce is also relaxed with reference to marriage with a pregnant woman or nursing mother (PDR 4:60). On the status of children born of such marriages, see *Yuḥasin.
CIVIL LAW ASPECTS
Since the law requires that a prohibited marriage be dissolved, there is no place for the imposition of reciprocal marital rights and duties which are designed to sustain the marriage. In principle this is the position whenever the husband has married his wife without knowing that she is prohibited to him (לֹא הִכִּיר בָּה, lo hikkir bah). However, if he has done so knowingly, there will be no justification for his release from a husband's marital duties, and these he must fulfill, with the exception of those likely to impede dissolution of the marriage. This distinction between the husband's knowledge or lack of it is drawn mainly in regard to the most important cases of prohibited but valid marriages, i.e., cases of plain prohibition (אִסּוּרֵי לָאו, issurei lav); (for the prohibitions concerning other cases of prohibited marriage, see Sh. Ar., EH 116:2ff.). Since a man who marries without knowing that his wife is prohibited to him is released from all the marital duties of a husband, the wife will not be entitled to receive her "main" or minimal *ketubbah and therefore also not to fulfillment of the ketubbah conditions since "the ketubbah conditions are as the ketubbah itself" (Ket. 54b and Rashi ad loc. S.V. tena'ei ketubbah; see also *Husband and Wife). Similarly, the wife will not be entitled to *maintenance, either during the husband's lifetime or as his *widow (Yad, Ishut 24:2; Sh. Ar., EH 116:1). In the same way, the wife too will be released from all her matrimonial duties, since these are imposed on her by law only in return for her husband's actual fulfillment of his duties toward her (see *Ketubbah; *Husband and Wife; *Dowry). The husband will, however, remain liable for her ketubbah "increment" (tosefet ketubbah), as this is not an obligation imposed on him by law but one that he has voluntarily undertaken to fulfill for as long as she is willing to remain his wife, and this the law has forbidden her to do, independently of her own will in the matter (Yad, Ishut 24:3; Taz, EH 116, n. 3).
In cases where the husband knowingly contracts a prohibited marriage, the scholars regulated that in principle he should not be released from any of the matrimonial duties imposed upon the husband by law. Hence, in these circumstances he, or his estate, will be liable to his wife or widow for her ketubbah (including the tosefet) as well as its conditions as in every regular marriage. However, since everything should be done in order to bring about the dissolution of such prohibited marriages, the scholars further ruled that the husband was exempt from maintaining his wife during his own lifetime, in order to discourage her from remaining his wife (Sh. Ar., loc. cit, and Taz n. 1). He will consequently not be entitled to her handiwork, since he is entitled to this only in return for actually maintaining her. Divergent opinions are expressed in the codes concerning the husband's usufruct of his wife's property. According to some of the posekim the husband does not have this right, since it is in return for the obligation to ransom his wife from captivity, a duty which does not hold in the case of a prohibited marriage (see *Dowry) as marital life with her is forbidden to him; therefore the husband must return the equivalent of any benefit he may have derived from this source (see, e.g., Yad, Ishut 24:4 and Maggid Mishneh ad loc.). Other posekim are of the opinion that only when the wife is taken captive must the husband make available for purposes of her ransom, the equivalent of the fruits of her property that he has enjoyed, but otherwise he will be exempt from compensating her in this regard (see, e.g., Ḥelkat Meḥokek n. 4 and Beit Shemu'el n. 2 to EH 116). Since the marital rights afforded by law to the wife in respect of her husband are conditional on the existence of corresponding legal duties of her husband toward her and, in the same way, the wife's duties to her husband do not exist independently but are in return for her enjoyment of her rights against him (Yad, Ishut 12: 1–4) – a position which depends on his knowledge or ignorance of the prohibited nature of the marriage – her knowledge or ignorance in this respect is of no legal significance.
In the State of Israel
Apart from rules of private international law, the problem of prohibited marriages is governed by Jewish law (see sects. 1, 2 of the Rabbinical Court Jurisdiction (Marriage and Divorce) Law, 5713/1953.
BIBLIOGRAPHY:
ET, 1 (19513), 206–9; 2 (1949), 20f., 65, 84f.; 6 (1954), 343–54; 12 (1967), 49–67; Elon, Mafte'ah, 5–7; B. Schereschewsky, Dinei Mishpaḥah (19672), 51f., 56–62, 203–6. See also bibliography to *Marriage.
(End)
