Polygamy in Judaism

 

The Torah does not have anything to say about polygamy -- not for it neither against it, which gives us evidence that the practice had long been an accepted social institution when the Torah laws concerning marriage were given to the Israelites at Sinai. In the Patriarchal age polygamy was regarded as an unquestioned custom. The practice of having more than one wife did not exist with the founder of Judaism, Abraham, nor with his son, Isaac. Jacob may be considered to have married two women against his will, because of the conniving of his father in law, Laban, and the two sisters who became his wives. The Torah gives a specific reason for the action of Abraham in taking Hagar to bear a child "for Sarah." It is made very clear that she is not an additional wife, as evidenced by the verse "And Sarai said to Abram, My wrong be upon you; I have given my maid to your bosom; and when she saw that she had conceived, I was despised in her eyes; the Lord judge between me and you. But Abram said to Sarai, Behold, your maid is in your hand; do to her as it pleases you." [Gen. 14:5,6] Jacob wanted Rachel for a wife from the time he arrived in Aram of the Two Rivers. The ‘switch’ was made, and he innocently made Leah his "first wife." He could not very well send her back to her father’s house when he realized that he had been cheated -- such things were not done! The fact that Jacob took his beloved Rachel as a wife besides Leah proves that polygamy as well as concubinage, with which it was always associated, was among the mores of the ancient Hebrew people. The best example we have of this attitude is in the matter of Abraham's willingness to have Sarah go to Pharaoh's palace when he was in Egypt [Gen. 12:15-20], and the same attitude is revealed in the episode of Abimelech and Sarah [Gen. 20:1-l3].

Polygamy was such a well established part of the social system that Mosaic law is not even critical of it. We find only certain regulations with respect to it; as, for example, if a man takes a second wife the economic position of the first wife and of the children she bore must be secure; and, in the case of inheritance, no child of a subsequent marriage is to be preferred over a child from the first wife. Other regulations were that the high priest could have only one wife and that a king in Israel should not have too many wives [Lev. 21:13; Deut. 17:17; Ex. 21:10]. The last injunction, however, was of no effect. David had seven wives before he began to reign in Jerusalem, and an extraordinary number of wives and concubines has been attributed to Solomon [II Sam 3:2-5, 14; 5:13]. In connection with David, the prophet Nathan did not denounce the king for adding Uriah's wife to those he already had but ‘only’ for the means he employed to make her free to marry him. [II Sam. 12:7-15]

However, if polygamy was not forbidden – it was also certainly not directly sanctioned. It is also a fact that it was most certainly not recommended. The Torah, in the story of the creation of the woman as a "helpmate to man" with the "operation" of creating her out of the man's rib only reinforces the concept, "And Adam said, This is now bone of my bones, and flesh of my flesh; she shall be called Woman, because she was taken out of Man. Therefore shall a man leave his father and his mother, and shall cleave to his wife; and they shall be one flesh." [Gen. 2:23,24] The ideal situation, these verses of Torah teach us, are for a man and a woman to become one unit. Polygamy was a socially accepted norm from the pre-Abrahamic past and it was left undisturbed. As the civilization of the people reached a higher plateau and, especially under the teaching of the prophets, the Jewish people’s moral and religious consciousness developed, the polygamous marriage system gradually declined. This is noticeable in Israel after the return from the Exile. In the Second Commonwealth polygamy is far from general. Yet it survived far into the Christian era. In fact, if we study the New Testament as a Jewish source book, we must take note that Jesus, as a Jewish preacher of his era, neither condemns polygamous unions nor advocates a change in the system. From this noninterference attitude Luther, as late as the 16th cent., arrived at the conclusion that he could not forbid the taking of more than one wife!

According to the Talmud the right to a plurality of wives is conceded, but the number of legitimate wives is limited to four, as it is in the Koran, the holy book of the Moslem, another Semitic society that developed in the fifth and sixth centuries. The Talmud did suggest that the taking of additional wives is sometimes sufficient ground for a woman who had previously been the sole wife to demand a divorce from her husband. Where a polygamous union exists, provisions must be made for adequate maintenance of each wife as well as a separate domicile. Throughout the Talmudic age not one rabbi is known to have had more than one wife. Monogamy was held to be the only ideal legal union; plurality of wives was a concession to the times and the prevailing conditions. At a later period Maimonides in his Mishneh Torah maintains, contrary to his personal opinion, that polygamous unions, from a strictly legal point of view, are indeed permissible. Eventually, however, under the authority of Rabbi Gershom (about l000), they were disallowed (for Ashkenazik Jewry, if not for all Jews), although cases of polygamy were found in Spain as late as the 14th cent. That such cases were not rare may be inferred from the fact that in the Spanish communities the Kethubah, the document marking the betrothal, exacted that the man was not to take a second wife. The Islamic influence on the Jews in Spain was more or less pronounced until the expulsion at the end of the 15th cent. In modern Europe polygamy disappeared from Jewish domestic life even while among Christians it remained a tolerated privilege of royalty until very late times. However, in the Moslem world Jews continued the custom even unto the twentieth century, and it was only with the ingathering of Jews to the modern state of Israel that the custom was finally become universally unacceptable.

In modern times, polygamy can actually involve either (1) a married man contracting marriages to other women while still "legally" being committed to his first marriage; or (2) a married woman (eshet ish) purporting to contract a second marriage to another man (or to other men) while still "legally" being committed to her first marriage. These two aspects must be considered in Jewish law as two separate issues.

We shall consider the second issue first, since it is a "modern" question that does not have much background or history of discussion in Rabbinic literature. Jewish law and tradition always maintained that a woman has to be protected in a world dominated by men – and that she has very definite rights. However, in the matter of marriage, the general principle is that "a woman cannot be the wife of two [men]" (Kid. 7a and Rashi). In relation to a wife the term kiddushin implies her exclusive dedication to her husband. There can therefore be no kiddushin between her and another man while the first kiddushin is in force, and a purported marriage to another man is thus totally invalid and unacceptable. Consequently, such a "marriage," if it should occur, does incur severe legal consequences -- primarily because of the law that sexual intercourse between a married woman and a man other than her (first and only acceptable) husband constitutes adultery, and results in her subsequently being prohibited to both men forever. She then requires a get ("divorce") from both of them. She requires a divorce from her husband, min-Oraita ("according to Torah"), because, although her adultery renders her prohibited to him, her legal marriage to him continues to be in force. To resolve this paradox she needs a get. She also requires a divorce from her adulterous "husband," mi-de-Rabbanan ("according to rabbinical enactment") -- even though her marriage to him is invalid -- so that people, ignorant of the true facts and perhaps under the impression that her second "marriage" was a valid one, should not be misled into thinking that she is free of him without a proper divorce (Yev. 88b and Rashi; Maim. Yad, Gerushin 10:5; Sh. Ar., EH 17:56). These consequences result whether the bigamous "marriage" was intentional or inadvertent; e.g., if the woman was incorrectly informed by two witnesses of her legal husband's death (Yev. 87b; Yad, Gerushin 10:4 and Sh. Ar.,EH 17:56). If, in spite of the said prohibitions, she does subsequently contract a later marriage with either of the two men, such a later marriage is a prohibited one and must be dissolved (Maim. Yad, Gerushin 10:4). Further legal consequences of a woman's bigamous "marriage" are that her children of the second union, which is considered adulterous, are classed as mamzerim according to Torah, and they may not marry anyone in the Jewish community. The woman’s financial rights (such as inheritance) are also affected (Yev. 87b).

The law is quite different in the case of a married man who purports to take a second wife while still married. According to Jewish law this second marriage (and any others) is valid and can therefore only be dissolved by death or divorce (Yev. 65a; Piskei ha-Rosh, ibid., 17; Yad, Ishut, 14:3; Sh. Ar., EH 1:9; 76:7). Permitted according to biblical law, polygamy was practiced throughout the Talmudic period and thereafter until the tenth century (Piskei ha-Rosh to Yev. 65a; Sh. Ar., EH 1:9). Already in Amoraic times, however, the practice was frowned upon by the sages, who prescribed tha polygamy was permissible only if the husband was capable of properly fulfilling his marital duties toward each of his wives. The opinion was also expressed that if a man takes a second wife, he must divorce his first wife, if the latter so demands, and pay her ketubbah (Yev. 65a; Alfasi, Piskei ha-Rosh, and Sh. Ar., EH 1:9). Similarly, according to Talmudic law, a man may not take a second wife if he has specifically undertaken to his first wife, in the ketubbah, not to do so (Sh. Ar., EH 76:8). Taking a second wife is also forbidden wherever monogamy is the local custom since such custom is deemed an implied condition of the marriage, it being presumed that the wife only wishes to marry in accordance with local custom. In other words, as a rule, the husband can only be released from this restriction with his wife's consent

In the course of time, and for varying reasons (Ozar ha-Posekim, EH 1 1:61, 2), it became apparent that there was a need for the enactment of a general prohibition against polygamy, independent of the husband's undertaking to this effect. Accordingly, relying on the principle of endeavoring to prevent matrimonial strife (which principle had already been well developed in talmudic law) Rabbenu Gershom ben Judah and his court enacted the takkanah (corrective rulling) prohibiting a man from marrying an additional wife unless specifically permitted to do so on special grounds by at least 100 rabbis from three "countries" (i.e., districts; see below). This takkanah, known as the "Kherem de-Rabbenu Gershom," also prohibited a husband from divorcing his wife against her will. Various versions of the takkanah exist (Ozar ha-Posekim, EH 1:61, 1) and, indeed, scholars have even questioned the historical accuracy of ascribing its authorship to Rabbenu Gershom. This, however, does not in any way affect its validity.

Since the prohibition against polygamy is derived from this takkanah and not from any undertaking given by the husband to his wife, she is not competent to agree to a waiver of its application, lest she be subjected to undue influence by her husband (Sh. Ar., EH 1:10; Ozar ha-Posekim, EH 1:61, 5). Nevertheless, if the husband does enter into a further marriage it will be considered legally valid (Tur, EH 44; Darkhei Moshe, ibid., n. I; Sh. Ar., EH 44; Beit Shemu'el 11), but as a prohibited marriage, and the first wife can require the court to compel the husband to divorce the other woman. Since the first wife cannot be obliged to live with a zarah ("rival"), she may also ask that the court order (but not compel) the husband to give her (i.e., the first wife) a divorce (Sh. Ar., EH 154; Pithe Teshuvah, 5; PDR vol. 7, pp. 65-74, 201-6). The husband continues to be liable to maintain his wife until he complies with the court's order -- even though they are living apart -- because as long as he refuses to divorce her he is preventing her from remarrying and thus being supported by another husband (Keneset ha-Gedolah, EH 1, Tur 16-17; PDR vol. 7 p.74). However, if the first wife and the husband agree on a divorce and this is carried out, he is then released from his obligation to divorce his second wife, although his marriage to her in the first place was in defiance of the prohibition (Sh. Ar., Pithei Teshuvah, 5; Ozar ha-Posekim, EH 1: 80,1 and 2).

Many authorities were of the opinion that the validity of the kherem was, from its inception, restricted as to both time and place. Thus, it is stated: "He [Rabbenu Gershom] only imposed the ban until the end of the fifth millennium," i.e., until the year 1240 (Sh. Ar., EH 1:10); others, however, were of the opinion that no time limit was placed on its application. At any rate, even according to the first opinion the kherem remained in force after 1240, since later generations accepted it as a binding takkanah. Accordingly, the kherem, wherever it was accepted (see below), now has the force of law for all time (Resp. Rosh 43: 8; Sh. Ar., EH 1:10; Arukh ha-Shulhan, EH 1:23 Ozar ha-Posekim, EH 1: 76). In modern times it is customary, in some communities, to insert in the ketubbah a clause against the husband's taking an additional wife "in accordance with the takkanah of Rabbenu Gershom...." However, the prohibition is binding on the husband, even though omitted from the keubbah, as such omission is regarded as a "clerical error" (Keneset ha-Gedolah, EH 1, Tur 17; Arukh ha-Shulhan EH 1:23).

The kherem did not extend to those countries where it was apparent that the takkanah had never been accepted (Sh. Ar., EH 1:10). In a country where the acceptance of the takkanah is in doubt, however, its provisions must be observed (Arukh ha-Shulhan, EH 1: 23). In general it can be said that the kherem has been accepted as binding among Ashkenazi communities, but not among the Sephardi and most of the Oriental communities. This is apparently because in those countries where Ashkenazim formed the main part of the Jewish community, as in Europe, America, or Australia where European Jews migrated, polygamy was also forbidden by the dominant religion, Christianity, and therefore by the secular law. This was not the case in Oriental countries, as in Yemen, Iraq, and North Africa, polygamy being permitted in Islam (Arukh ha-Shulhan and Ozar ha-Posekim, loc. cit.). Thus, Maimonides, who was a Sephardi, makes no reference at all to the kherem. In practice, therefore, to prohibit polygamy Oriental communities would customarily insert an express provision in the ketubbah, whereby the husband was precluded from taking an additional wife except with the consent of his first wife or with the permission of the bet din. As this provision was a condition of the marriage, any breach thereof entitled the wife to demand either that her husband complied with the provision, i.e., by divorcing the second wife, or that she be granted a divorce with payment of her ketubbah (Sedei Hemed, Asefat Dinim, Ishut 2; Keneset ha-Gedolah, EH 1, Beit Yosef 13, 16; Ozar ha-Posekim, ibid., 1:80, 8; PDR 7:65).

People who move from a country where the kherem is binding to a country where it is not, or vice versa, are subject to the following rules: (1) the ban adheres to the individual, i.e., it accompanies him from place to place and he always remains subject to it (Arukh ha-Shulhan, loc. cit.; Ozar ha-Posekim, EH 1:75, 1; Sh. Ar., EH 1); (2) local custom is followed, so that if the kherem applies to a particular country it is binding on everyone, irrespective of their country of origin (Arukh ha-Shulhan, ibid.; Ozar ha-Posekim, ibid. and 1:75, 3; Keneset ha-Gedolah, EH, Beit Yosef, 22). Both these rules are strictly applied with the intent of extending the operation of the kherem as widely as possible. On the other hand, if a man legally married two wives in a country where this was permitted, he is not obliged to divorce either of them on arriving in another country where the kherem is in force, as the law is only infringed by his taking an additional wife and not when a man already has two (Arukh ha-Shulhan, ibid.).

The object of prohibiting bigamy is to prevent a man from marrying a second wife as long as he is not legally entitled to dissolve his first marriage. Thus, in order to avoid any circumvention of the prohibition, the kherem also generally prohibits divorce against the will of the wife. This double prohibition may, however, result in the husband being unjustifiably fettered in circumstances where he would not otherwise be required by law to maintain his ties with his wife -- and yet may not divorce her against her will. This can, therefore, be obviated by the availability of a hetter ("release") from the kherem against bigamy, which is granted by the betdin in the appropriate circumstances. This hetter does not mean that the first wife is divorced, but that the husband is granted exceptional permission to contract an additional marriage. Naturally, such a step is only taken if the court, after a full investigation of the relevant facts, is satisfied that a release is legally justified.

Thus, for example, a release would be granted in a case where a wife becomes insane. Her husband cannot, therefore, maintain normal married life with her, a fact which would ordinarily entitle him to divorce her; this he cannot do because of her legal incapacity to consent. However, as the first marriage must continue to subsist, the husband remains liable to support his wife -- including medical costs -- but he is permitted by the court to take an additional wife (Bah, EH 119; Sh. Ar., EH l; Beit Shemu'el 1, n. 23; 119, n.6; Helkat Mehokek, ibid, 10-12; Ozar ha-osekim, EH 1:72, 19). Should the first wife subsequently recover her sanity she cannot demand that her husband divorce his second wife, as he married her in accordance with the law.

On the contrary, the husband would be entitled -- and even obliged -- to divorce his first wife, so as not to remain with two wives, and if she refuses to accept his get he would be free from any further marital obligations towards her, save for the payment of her ketubbah (Sh. Ar., EH l; Beit Shemu'el, ibid.; Ozar ha-Posekim, EH 1:72, 17-18; PDR 3:271). However, the hetter would be revoked if the first wife recovered her mental capacity before the second marriage took place (Sh. Ar., EH 1, Pithei Teshuvah, 16, concl.; Ozar ha-Posekim, EH 1:72, 14).

On the strength of the aforementioned rule, a release from the kherem may also be obtained by a man whose wife refuses to accept a get from him, despite the court's order that she does so, e.g., in the case of her adultery or where the marriage is a prohibited one (Sh. Ar., EH 1:10; Helkat Mehokek, ibid., 16; Ozar ha-Posekim, EH 1:63, 7). Some authorities are of the opinion that in the event of the wife's adultery the husband only requires a hetter from a regular court and not from 100 rabbis, since the kherem was not meant for such a case (Ozar ha-Posekim, EH 1:73, 2). A hetter would be justified where a wife who has had no children during a marriage which has subsisted for at least ten years -- a fact which entitles the husband to divorce her -- refuses to accept the get and thus prevents her husband from remarrying and fulfilling the mitzvah to "be fruitful and multiply." In such a case the husband is obliged to take another wife to fulfill the mitzvah and so he would be entitled to the hetter (Sh. Ar., EH 1:10; Ozar ha-Posekim, EH 1:68; Arukh ha-Shulhan, EH 1:25).

As has already been stated, in Oriental communities for a husband to take a second wife requires either his first wife's consent or the court's permission. The wife is required to give her consent before a regular court (not 100 rabbis) and the court will permit the second marriage only if satisfied, after a thorough investigation of the facts, that the wife has consented wholeheartedly, without anger or under undue influence (Ozar ha-Posekim, EH 1:61, 5, subsec. 3; Sedei Hemed, Asefat Dinim, Ishut 2). Without her consent, the court will generally only grant a release to the husband in such cases where it would do so were the kherem to apply (Sedei Hemed; Ozar ha-Posekim, ibid.), since it is presumed that the husband's undertaking the ketubbah is given on the understanding that no circumstances shall exist which, if the kherem were to apply, would warrant his release from the prohibition (Sedei Hemed, ibid.; Ozar ha-Posekim, EH 1:72, 9).

 

PROCEDURE FOR GRANTING THE HETTER

 

After the court has decided that a release from the kherem should be granted, the matter is referred to 100 rabbis of three "countries" (Ozar ha-Posekim, EH 1:61, 9) for approval and, if so approved, the hetter takes effect. As a preliminary, the husband is required to deposit with the court a get for his first wife, together with an irrevocable authority for the court to have the get delivered to his first wife as soon as she is able and willing to receive it from an agent appointed by the husband at the request of the court. However, in the case where the hetter is given because of the first wife's insanity, it is customary to give her a new get when she recovers, rather than the one previously deposited with the court, as some doubt could be cast on the latter's validity, since it was the wife's insanity that made it impossible to deliver the get to her originally and there may therefore possibly be other legal objections to its validity. The deposited get is usually only delivered to her if she is in danger of becoming a deserted wife. Furthermore, the husband is also generally required to deposit with the court the amount of the wife's ketubbah in cash or provide adequate security (Bah, EH 119; Sh. Ar, EH; Beit Shemu'el 1, n. 23; Arukh ha-Shulhan, EH 1:25; Ozar ha-Posekim, 1:72, 23-24). Some authorities are of the opinion that the husband must also deposit with the court, or adequately secure in like manner, such sums as the court may determine to cover the wife's maintenance and medical expenses (Ozar ha-Posekim, EH 1:72, 29).

At a national rabbinic conference called in 1950 by the chief rabbis of Israel, an enactment was passed making monogamy (apart from the above-mentioned permissions) binding upon all Jews irrespective of their communal affiliations. This takkanah, however, does not render a second marriage invalid according to biblical law, and therefore, if such a marriage does take place, it can be dissolved only by divorce. The criminal law of the state, however, renders it an offense on pain of imprisonment for a married person to contract another marriage (Penal Law Amendment (Bigamy) Law, 5719-1959). Nevertheless, for Jewish citizens no offense is committed if permission to marry a second wife was given by a final judgment of a rabbinical court and approved by the two chief rabbis of Israel. The latter's approval is accepted as conclusive proof that the permission was given according to the law. Special provisions relating to the grant of this permission are laid down in the Takkanot ha-Diyyun be-Vattei ha-Din ha-Rabbaniim be-Yisrael, 5720-1960.

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