Preventing legalized adultery TB Kiddushin 78

Today’s daf TB Kiddushin 78 discusses how many different sets of lashes a person could be liable for marrying a woman forbidden by the Torah. “Rav Yehuda says: A High Priest who engages in sexual intercourse with a widow is flogged two sets of lashes, one set due to transgressing the prohibition of: “A widow, or one divorced, or a ḥalala, or a zona, these shall he not take” (Leviticus 21:14), and one set due to transgressing the prohibition of: “And he shall not profane” (Leviticus 21:15), since he profanes the woman with whom he engages in intercourse.” (Sefaria.org translation)

Abaye agrees with Rabbi Yehuda while Rava doesn’t agree with him.

“Abaye says: A priest who betrothed a woman forbidden to him is flogged; if he engaged in sexual intercourse with her he is flogged additional lashes. The Gemara clarifies this: If he betrothed, he is flogged due to transgressing the prohibition of: “Shall he not take.” If he also engaged in intercourse, he is flogged due to transgressing the prohibition of: “He shall not profane.” Rava says: If he engaged in intercourse he is flogged; if he did not engage in intercourse, he is not flogged at all, because it is written: “Shall he not take…and he shall not profane,” which Rava understands to mean: For what reason is he commanded not to take? It is so that he not profane. Rava holds that he is not liable for taking, i.e., betrothing, the woman, but only for engaging in intercourse with her, as this leads to profanation.

“The Gemara notes: And although Abaye holds that the act of betrothal itself is forbidden, he concedes in the case of an Israelite who remarries his divorcée after she had been married to someone else in the interim (מחזיר גרושתו), that if he betrothed her without engaging in intercourse, he is not flogged. Why not? It is as the Merciful One states in the Torah with regard to this prohibition: “Take her again to be his wife” (Deuteronomy 24:4), which indicates that the act of betrothal is forbidden only if it leads to the intimacy of marriage, and there is no such intimacy here since he has not engaged in intercourse with her.” (Sefaria.org translation)

Sforno explains the reason why the Torah forbids remarrying his divorcee, מחזיר גרושתו. Let’s first read at the verses from Deuteronomy 24:1-4.

“A man takes a woman [into his household as his wife] and becomes her husband. She fails to please him because he finds something obnoxious about her, and he writes her a bill of divorcement, hands it to her, and sends her away from his house; she leaves his household and becomes [the wife] of another man; then this latter man rejects her, writes her a bill of divorcement, hands it to her, and sends her away from his household; or the man dies who had last taken her as his wife. Then the first husband who divorced her shall not take her [into his household] to become his wife again, since she has been defiled —for that would be abhorrent, כִּֽי־תוֹעֵבָ֥ה הִ֖וא, to YHVH. You must not bring sin upon the land that your God YHVH is giving you as a heritage.”

One might conclude that remarrying the woman you divorced who married another person in between, might be a good thing after all. The couple is giving their marriage a second chance. Why does the Torah describe this remarriage as an abhorrence, to’avah, תוֹעֵבָ֥ה? Adultery is the reason why Sforno explains the underpinning logic of this prohibition. He writes:

“that would be abhorrent, because this is a sure recipe leading to legalised adultery, people marrying for short periods of time, and then legally swapping wives by going through phony but legally correct divorce procedures.” (Sefaria.org translation)