Question:
I live in an Orthodox Jewish neighborhood in New York City where suitable apartments are difficult to find. My wife and I recently divorced, and she remained living in the apartment building in which we previously lived together. I have now found another apartment in the very same building which is ideal for my needs and difficult to replace. Although we would each have our own separate apartment and would no longer be living together, may I rent the apartment and continue living in the same building as my ex-wife? Does it make a difference if the apartment is on a different floor, or if there are separate entrances or other features that may reduce our interaction? We are both now single, and I am not a Kohen.
Short Answer:
In general, divorced spouses may not live in the same apartment building if they share common entrances, hallways, stairwells, lobbies, or other common areas, as these areas have the halachic status of a shared courtyard (Chatzer). However, if the building is divided into completely separate sections with independent entrances and exits, such that they will not ordinarily encounter each other, then it is permitted for them to reside in the same overall structure, so long as it remains technically Halachically permitted for the couple to remarry if they wish. If not, then according to many Poskim, they may not even live in the same neighborhood.
Explanation
The Talmudic Background
The Gemara in Kesubos discusses the relationship that must exist between a divorced couple following a divorce. Chazal were concerned that since the former spouses are already familiar with one another and recognize each other’s signals and mannerisms, frequent contact may eventually lead to impropriety. As a result, various restrictions were enacted regarding their living arrangements and interactions. Amongst these restrictions includes, states the Gemara, that if her ex-husband was a Kohen [of if the divorcee remarried] then they may not live in the same Mavuiy alleyway.
The one question that remains for the Rishonim to clarify is the status of a regular divorced couple in which the husband is not a Kohen and the ex-wife has never remarried. This case is not explicitly addressed in the Gemara, which discusses either a Kohen and his divorcee or a woman who became forbidden to her former husband through remarriage.
The Rishonic Background and Final Ruling of Shulchan Aruch
The Rishonim further address the case of a regular Jewish couple in which the husband is not a Kohen and the ex-wife has not remarried. While it is evident from the Gemara that such a couple may reside within the same Mavui (alleyway), they dispute whether they may continue living within the same Chatzer (courtyard). Some Rishonim permit this arrangement, while others prohibit it due to the concern that their prior familiarity may lead to inappropriate interaction. Practically, the opinion of the latter authorities is accepted by the Shulchan Aruch, who rules that a man who divorced his wife after Nissuin may not live with her in the same Chatzer, even if she remains single and the two are halachically permitted to remarry each other.
Does It Help if They Will Never Be Alone Together?
There is a dispute among the Poskim whether a divorced couple may live in the same Chatzer if they are careful never to enter into Yichud and others are constantly present. The Ran and Chelkas Mechokeik rule that in such a case it is permitted, similar to the arrangement of Reb Zechariah ben HaKatzav. However, the Rambam, Beis Shmuel, Peri Chadash, and other Poskim rule that even then it remains forbidden, and so appears to be the simple ruling of the Shulchan Aruch. Hence, for Sephardim the matter is clearly forbidden while for Ashkenazim its under debate.
Applying the Above Discussion to an Apartment Building
Based on the above, we must now clarify how these laws apply to a modern apartment building.
Is an Apartment Building Considered a Chatzer? This is the key question regarding modern apartment buildings. The Poskim discuss whether a courtyard must be an area in which residents conduct daily activities, or whether an area used only for access and passage also receives the status of a Chatzer. Practically, the Poskim conclude that even if the shared area is only used for entrance and exit, it still retains the status of a Chatzer for these laws. Therefore, if in a building, a divorced couple shares the same lobby, staircase, hallway, elevator area, entranceway, or similar common areas, they are considered to be living in the same Chatzer.
What if One Lives on a Different Floor? A common misconception is that separate floors solve the problem. The Poskim explicitly discuss a case in which one spouse lives upstairs and the other downstairs. They conclude that if both residents must use the same entrance and common passageway, then the shared entrance itself is considered a Chatzer and the arrangement remains prohibited. Therefore, merely living on different floors does not remove the concern if the building’s access points are shared.
No Yichud: Nonetheless, despite the above ruling, one could argue that an apartment building differs from a classic Chatzer. Unlike a private courtyard, apartment buildings are constantly occupied by residents entering and exiting the premises. Accordingly, there is generally no concern of Yichud in a lobby, hallway, stairwell, or elevator area, as people are continually passing through these locations. Indeed, we do not ordinarily consider a man and woman standing in a building lobby or hallway to be in a situation of Yichud. Based on this reasoning, one could suggest that this case should be comparable to the opinion of the Ran and Chelkas Mechokeik, who permit former spouses to reside in the same Chatzer when safeguards exist that prevent Yichud. Nonetheless, this issue remains subject to the very dispute discussed above. According to the Ran and those who follow his approach, there may be room for leniency where Yichud is effectively prevented. According to the Rambam and those Poskim who understand that the prohibition applies even when Yichud is not possible, the presence of many residents does not help, as the prohibition is not merely one of Yichud but of maintaining residential proximity between former spouses.
Final ruling: Practically speaking, especially according to the ruling of the Rambam and Shulchan Aruch, one should be stringent. This is particularly true regarding Sephardim, who generally follow the rulings of the Mechaber in matters of dispute. Furthermore, many contemporary Poskim are stringent even for Ashkenazim. An additional factor for stringency is that in contemporary times most women do not immerse in a Mikveh unless married, and hence have the status of a Nidah, making the underlying concerns significantly more severe. Accordingly, the practical ruling is that even where the ex-wife remains single and has never remarried, and even though she would technically be permitted to remarry her former husband, a divorced couple should not reside in the same apartment building when common areas are shared. This applies despite the lack of Yichud concerns in the hallways and lobby.
We must now further analyze whether a different ruling applies when the two apartments have completely separate entrances and access routes, such that the former spouses do not share any common residential areas.
Separate Entrances
An important exception to the above rule exists. If the building is structured in a way that each side has its own completely independent entrance and exit, such that the ex-spouses do not share hallways, stairwells, lobbies, or other common areas and will not ordinarily cross paths, then they may reside there. In such a case they are not considered to be dwelling within the same Chatzer. Thus, duplexes, subdivided buildings, or large complexes with entirely separate entrances may be treated differently than a standard apartment building with shared access. So ruled Rav Elyashiv.
Who Must Move Out?
When the divorced couple may not remain in the same location, the general rule written in the Talmud and Shulchan Aruch is that the wife relocates and not the husband. If, however, the property belongs to her, then the husband must relocate. In a rental situation where neither party owns the property, the classic halachic rule is likewise that she is the one who relocates.
Cases in Which They Are Forbidden to Remarry Each Other
The above discussion primarily concerns an ordinary divorced couple who remain permitted to remarry each other. If, however, they are forbidden to one another, the required separation is considerably greater. This includes where the former husband is a Kohen, where the woman remarried after the divorce, or where the divorce occurred because she became forbidden to him, such as through adultery.
In these cases, they may not reside in the same Mavui. Regarding whether the restriction extends even to the same Shechunah (neighborhood), there is a dispute among the Poskim. Some require separation from the entire neighborhood, while others understand that separation from the Mavui is sufficient. There is likewise a dispute regarding the precise halachic definition of Shechunah and whether it refers to a small grouping of houses or a larger neighborhood.
Thus, in these more severe cases, living in the same apartment building is unquestionably prohibited, and depending on the circumstances and opinion followed, an even greater geographical separation may be required.
Practical Ruling
- A divorced couple may not live in the same apartment building when they share a lobby, entrance, hallway, stairwell, elevator area, or other common passageways.
- Living on separate floors does not solve the issue if they continue to share the building’s entrance and common areas.
- If each section of the building has a completely separate entrance and access route, it is generally permitted.
- Although some Poskim are lenient when there is no possibility of Yichud and others are constantly present, the accepted ruling is to be stringent.
- If the former spouses are forbidden to remarry each other, such as where the husband is a Kohen, the wife remarried another man, or she became prohibited to him due to infidelity, then the laws are much more severe. In such cases, they may not even live in the same Mavui (alleyway), and there is a dispute whether they may live in the same Shechunah (neighborhood). Certainly, they may not reside in the same apartment building.
Sources:
Mishpat Haget 119:7; Ashreiy Haish 15:49
- The Basic Prohibition Against Living in the Same Area: Michaber Even HaEzer 119:7, 11; Rambam Hilchos Issurei Biah 21:27; Kesubos 27b-28a
- The Basic Prohibition Against Living in the Same Chatzer Even if Wife Single: Michaber Even HaEzer 119:7, 11; Rambam Hilchos Issurei Biah 21:27; Kesubos 27b-28a; Ran Kesubos 12; Bach 119; Peri Chadash 110:7; Get Pashut 119:41; Aruch Hashulchan 119:7 Mutar: Semag Mitzvah L.S. 126; Yerushalmi, brought in Ran; Ritva Kesubos ibid; Shita Mekubetzes ibid
- The Reason for the Prohibition: Chelkas Mechokeik 119:17; Taz 119:19
- Does the Prohibition Still Apply if They Are Careful Never to Be Alone Together? No: Ran Kesubos ibid; Chelkas Mechokeik 119:17; Mahariy Navon in Get Mekushar 14 in time of need Yeshuos Yaakov E.H. 119 Yes: Rambam Issurei Biah 21:27; Shulchan Aruch E.H. 119:7; Beis Shmuel 119:14; Peri Chadash 119:17; Chochmas Adam 21
- The Prohibition Against Living in the Same Mavuiy in Cases in Which They Are Forbidden to Remarry Each Other: Michaber E.H. 119:7; Rema 119:7; Rambam Issurei Biah 21:27; Tur; Rosh; Ran; Beis Shmuel 119:15; Chelkas Mechokeik 119:19; Aruch Hashulchan 119:25-28.
- The Prohibition Against Living in the Same Shechuna in Cases in Which They Are Forbidden to Remarry Each Other: Mutar: Rema 119:7 Assur: Chelkas Mechokeik 119:19; Tur 119; Ran, brought in Beis Yosef 119
- What Defines a Chatzer? Maharnach 96; Get Pashut 119:41; Kneses Hagedolah 119:11; Chochmas Adam 21
- What Defines a Mavuiy? Michaber E.H. 119:7; Rema 119:7; Chelkas Mechokeik 119:19; Rivash 360; Rabbeinu Yaakov Meorlins , brought in Ran Kesubos 12
- Apartment Buildings: Get Pashut 119:41; Kneses Hagedolah 119:11; Maharnach 96;
- Who Must Leave? Michaber E.H. 119:11; Kesubos 28a