Marrying More than One Wife: Difference between revisions

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#In Sephardic communities, such as those in Israel (where the Cherem D'Rabbeinu Gershom was never in effect), the popular contemporary custom is to include a shev'uah (Halachic swear) in the text of a Ketubah stating that the husband will provide for his wife and will not engage in polygamy or forcibly divorce his wife, similar elements as those stated in the Cherem D'Rabbeinu Gershom.<ref>Shulchan Aruch, Even HaEzer 1:11, 118:15. This has become the widespread minhag of the Sephardic world (See Shu"t Yabia Omer Vol. 7 Even HaEzer 2:3, Rav Shlomo Ammar in Shu"t Shema Shlomo 5: Even HaEzer 20. Exceptions may exist in some Moroccan communities, though this is the predominant minhag.) and of the Israeli Rabbinate at large.  </ref>
#In Sephardic communities, such as those in Israel (where the Cherem D'Rabbeinu Gershom was never in effect), the popular contemporary custom is to include a shev'uah (Halachic swear) in the text of a Ketubah stating that the husband will provide for his wife and will not engage in polygamy or forcibly divorce his wife, similar elements as those stated in the Cherem D'Rabbeinu Gershom.<ref>Shulchan Aruch, Even HaEzer 1:11, 118:15. This has become the widespread minhag of the Sephardic world (See Shu"t Yabia Omer Vol. 7 Even HaEzer 2:3, Rav Shlomo Ammar in Shu"t Shema Shlomo 5: Even HaEzer 20. Exceptions may exist in some Moroccan communities, though this is the predominant minhag.) and of the Israeli Rabbinate at large.  </ref>


'''On What Level is the Cherem D'Rabbeinu Gershon Binding?'''
'''On What Level is the Cherem D'Rabbeinu Gershom Binding?'''


There are two opinions on the issue. The first is that because of its universal acceptance, the Cherem is binding on a level of Divrei Torah, even according to those who hold that the Cherem is only  in effect after 1239 CE as a result of minhag.<ref>Shu"t MaHarik, Shoreh 184. Shu"t Mabit 2:16. Shu"t Beis Yosef (Dinei Ketuvos Siman 14) is of the opinion that the Cherem D'Rabbeinu is binding on a level of Divrei Torah, even if it is only a minhag in the present day.</ref> As such, any Halachic doubts dealing with this subject should be treated stringently.<ref>Shu"t Chasam Sofer Even HaEzer 1:2</ref>
There are two opinions on the issue. The first is that because of its universal acceptance, the Cherem is binding on a level of Divrei Torah, even according to those who hold that the Cherem is only  in effect after 1239 CE as a result of minhag.<ref>Shu"t MaHarik, Shoreh 184. Shu"t Mabit 2:16. Shu"t Beis Yosef (Dinei Ketuvos Siman 14) is of the opinion that the Cherem D'Rabbeinu is binding on a level of Divrei Torah, even if it is only a minhag in the present day.</ref> As such, any Halachic doubts dealing with this subject should be treated stringently.<ref>Shu"t Chasam Sofer Even HaEzer 1:2</ref>

Revision as of 02:32, 6 March 2020

Introduction

The Cherem D’Rabbeinu Gershom (excommunicable decrees of Rabbi Gershom) is a series of Rabbinic decrees enacted by Rabbeinu Gershom Me'or HaGolah ("Our teacher, Rabbi Gershom, light of the Diaspora", c.1000 CE) for Ashkenazic communities. Its various components are aimed at maintaining civility between a husband and wife, and between a person and his or her fellow. While the original decrees were designed to be in effect for a limited amount of time and only in the Jewish communities of Europe, there has been much discussion throughout the centuries as to how long they should be in effect, where they should be in effect, and under what circumstances should they be enforced. All of these parameters will be discussed below.

The following are the three most important components of the Cherem D’Rabbeinu Gershom[1]:

  1. If a man is already married, he is prohibited from marrying any additional women.
  2. A man is prohibited from divorcing his wife against her will
  3. One is prohibited from reading other people’s mail without permission

Though the Cherem D’Rabbeinu Gershom has these components and others, this article will focus on the most impactful ones: the aspects that govern marriage and divorce.

Not Marrying More than One Wife

  1. Prior to the enactment of the Cherem D'Rabbeinu Gershom, polygamy was permitted, provided a husband was able to provid both financially and emotionally for each of his wives.[2] With its advent, polygamy became prohibited[3]. A number of reasons have been provided for its enactment including preventing abusive and womanizing husbands from mistreating their wives[4], preventing marital fights[5] and preventing men from marrying wives that they would not be able to support[6]. Others include an additional reason of preventing a possible scenario where the son and daughter of one man (from two separate women) marry each other, a union prohibited according to Halacha[7].
  2. It is prohibited for a man to marry a second woman, even in a situation where the first wife consents to the second marriage [8]
  3. There is a debate as to whether or not a woman would also be Halachically culpable if she marries a man with another wife[9]. Even those who would not hold the woman culpable in such an instance still maintain that it would be extremely ill advised to enter such a marriage. As such, any efforts, by a Beis Din or otherwise, to deter such behavior should be encouraged[10].

Not Divorcing a Woman Against Her Will

  1. Prior to the enactment of the Cherem D'Rabbeinu Gershom, a woman could be divorced regardless of whether or not she consented [11] and whether or not her husband could pay for her Ketubah/financial needs after the divorce[12]. After the Cherem D'Rabbeinu Gershom was put into place it, became prohibited for a man to divorce his wife without her knowledge, even if he could pay the amount of her Ketubah[13].
  2. Reasons for the Cherem included to prevent abusive and womanizing husbands from abusing their wives and divorcing them for frivolous reasons[14] and to equate a woman's power in terms of a divorce to that of a man so women can not be degraded by forced divorces[15]. Others are of the opinion that the Cherem is a bona fide siyag (protective fence) to the Torah- one should not forcibly divorce his wife, even if by strict halacha he would be justified to do so (eirvas davar), lest someone seek to forcibly divorce his wife for a reason that is not valid[16]. Finally, some point out that these two segments of the Cherem (not marrying more than one wife and not forcibly divorcing a woman) had to be established together, lest a husband threaten to marry another woman, a deed that would cause his wife to become an Agunah[17].

For How Long is the Cherem D'Rabbeinu Gershom in Effect?

There are a number of opinions on this issue.

  1. The first of them is that after the Cherem D'Rabbeinu Gershom went into effect approximately 1000 CE, it was meant to be in effect until the end of the fifth millennium of the Jewish calendar, which translates to the fall of 1239 CE.[18] According to this position, the Cherem was extended beyond that point as a matter of custom.[19] This view maintains that Rabbeinu Gershom did not had the power to extend it himself indefinitely, as this is a Takanah (rabbinic decree) and extending it indefinitely would constitute a violation of Ba'al Tosif (unauthorized adding to the Torah).[20]
  2. The other major opinion is that the Cherem D'Rabbeinu Gershom was meant to be in effect indefinitely. This position maintains that the practice to forbid polygamy because of the Cherem D'Rabbeinu Gershom continued well beyond 1239 CE[21] and that the argument that the Cherem D'Rabneinu Gershom was only meant to last until 1239 CE anyhow is not sufficient to establish the halacha accordingly.[22] Others claim that the Cherem D'Rabbeinu Gershom acts as a Beis Din, an institution that has the power to obligate its subjects and their decedents to its decrees with repeal only possible via a similar Beis Din of number and stature[23].

Acceptance and other Parameters

Where is the Cherem D'Rabbeinu Gershom in Effect?

Initially, the Cherem was issued only in European communities such as Germany, France[24] and Poland[25] but not in the Sephardic communities[26]. However, in the last century, a ban on polygamy has been universally accepted throughout both Ashkenazic and Sephardic communities, albeit through different mechanisms.

  1. In Ashkenazi communities, unless it is known that a city did not have the custom to uphold the Cherem D'Rabbeinu Gershom, it is assumed that the Cherem is in effect by default.[27] As such, in countries such as the United States and Australia where Jews were not present when the Cherem D'Rabbeinu Gershom was enacted, it is assumed that it is in effect there was well since the Jews in those countries are descendants of those who were originally in Europe.[28]
  2. In Sephardic communities, such as those in Israel (where the Cherem D'Rabbeinu Gershom was never in effect), the popular contemporary custom is to include a shev'uah (Halachic swear) in the text of a Ketubah stating that the husband will provide for his wife and will not engage in polygamy or forcibly divorce his wife, similar elements as those stated in the Cherem D'Rabbeinu Gershom.[29]

On What Level is the Cherem D'Rabbeinu Gershom Binding?

There are two opinions on the issue. The first is that because of its universal acceptance, the Cherem is binding on a level of Divrei Torah, even according to those who hold that the Cherem is only in effect after 1239 CE as a result of minhag.[30] As such, any Halachic doubts dealing with this subject should be treated stringently.[31]

Contemporary Relevance: Heter Me'ah Rabbanim

Sources

  1. ↑ While a formal text containing all the aspects of the Cherem D'Rabbeinu Gershom does not seem to exist, there have been a number of references to it throughout the Gaonic and Rishonim eras. A partial, more expansive list can be found in the Be'er HaGolah towards the end of Yoreh De'ah Siman 334.
  2. ↑ Rambam Hilchos Ishus 14:3, Tur Even HaEzer 1:9 ruling like Rava on the Machlokes found on Yevamos 65a. Nonetheless, at the end of the Siman, the Tur forbids anyone from marrying more than one woman in places where the Cherem D'Rabbeinu Gershom was put into effect.
  3. ↑ Ritva on Yevamos 44a in the name of Tosfos, citing Rabbeinu Gershom. The Ritva also notes that the Rambam, who lived in an area where this decree was not put into effect, did not place any such restrictions.
  4. ↑ Shu"t MaHarik, Shoresh 101, quoting the Teshuvos HaRashba
  5. ↑ Darkei Moshe, Even HaEzer Siman 1:11, Mordechai on Kesuvos, Siman 291
  6. ↑ Shu"t Mishkenos Yaakov, Even HaEzer Siman 1, Shu"t Maharam Padova Siman 14
  7. ↑ Yevamos 37b
  8. ↑ Darkei Moshe, Even HaEzer, Siman 1, Os Ches
  9. ↑ Haghos Sma"k Siman 186 is of the opinion that even the woman would be culpable this situation (See Encyclopedia Talmudit, Vol. 17, entry on Cherem D'Rabbeinu Gershom, footnote 30). The Be'air Heitev (Even HaEzer, Siman 1, Seif Katan 20) and Rav Yitzchak Elchanan Spektor (Shu"t Ein Yitzchak Even HaEzer Siman 3:9) both held that the woman would not be culpable as the Cherem only makes the man culpable in its original enactment.
  10. ↑ Shu"t Shoel U'Maishiv, Vol. 1:114
  11. ↑ Yevamos 112b, Rambam Hilchos Geirushin 1:2, Tur Even HaEzer 119:6
  12. ↑ Though she would have the right to sue her ex-husband in Beis Din afterwards for the money owed to her. Rama, Even HaEzer 119:6
  13. ↑ Rama, Even HaEzer 119:6, citing the Teshuvos HaRosh.
  14. ↑ Shu"t MaHarik ibid.
  15. ↑ Shu"t HaRosh Klal 42:1
  16. ↑ Shu"t Ein Yitzchak, Even HaEzer 4:20. The Chasam Sofer (Shu"t Chasam Sofer E"H 1:3) also believes this segment of the Cherem D'Rabbeinu Gershom is a siyag for the reason that is brought by Shu"t Maharik- to prevent spousal abuse and divorce for frivolous reasons
  17. ↑ Shu"t Shoel U'Maishiv, 1st Edition, 1:178
  18. ↑ Beis Yosef, Even HaEzer 1:9, quoting the Teshuvos HaRashba found in Shu"t MaHarik, Shoresh 101
  19. ↑ Shu"t Beis Yosef, Dinei Ketuvos 14. Darchei Moshe, Even HaEzer 1:9.
  20. ↑ Pischei Teshuva, Even HaEzer 1, Seif Katan 19. Shu"t Avnei Nezer, Even HaEzer1:8:8
  21. ↑ Yam Shel Shlomo on Yevamos, 6:41 who states that the Or Zaruah, Mordechai and Sma"k were of this opinion as well. Additional reasons he posits are that the the substance of the Cherem D'Rabbeinu Gershom is still applicable today and that the original Takanah never specified a time limit in its text.
  22. ↑ Shu"t Chacham Tzvi 124
  23. ↑ Yam Shel Shlomo, ibid.
  24. ↑ Shu"t Radvaz 4:1165 cites both Ashkenaz and France
  25. ↑ Rama (who lived in Poland), Even HaEzer 1:10 ("B'chol medinos eliu")
  26. ↑ Shu"t Beis Yosef Dinei Ketuvos 14. Shu"t HaRashba 3:446 mentions the same for Provence. For a longer list of opinions in support, see Shu"t Yabia Omer, Even HaEzer 5:1
  27. ↑ Rama (quoting the MaHari Mintz), Even HaEzer 1:10. Levush Even HaEzer 1:10.
  28. ↑ Aruch HaShulchan, Even HaEzer 1:23
  29. ↑ Shulchan Aruch, Even HaEzer 1:11, 118:15. This has become the widespread minhag of the Sephardic world (See Shu"t Yabia Omer Vol. 7 Even HaEzer 2:3, Rav Shlomo Ammar in Shu"t Shema Shlomo 5: Even HaEzer 20. Exceptions may exist in some Moroccan communities, though this is the predominant minhag.) and of the Israeli Rabbinate at large.
  30. ↑ Shu"t MaHarik, Shoreh 184. Shu"t Mabit 2:16. Shu"t Beis Yosef (Dinei Ketuvos Siman 14) is of the opinion that the Cherem D'Rabbeinu is binding on a level of Divrei Torah, even if it is only a minhag in the present day.
  31. ↑ Shu"t Chasam Sofer Even HaEzer 1:2
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