Marrying More than One Wife

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Introduction

The Cherem D’Rabbeinu Gershom (communal bans 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 domestic strife [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 two main opinions on this issue.

  1. The first of them is that after the Cherem D'Rabbeinu Gershom went into effect in 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 bans (without the curse placed on the violators) are extended to this day 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] Nonetheless, the generations thereafter extended it, keeping it in effect.
  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, allowing it to be in place permanently[23]. Those who are of this opinion do not believe the Cherem has an issue of Ba'al Tosif either since it was instituted as a siyag (like other Gezairos of Chazal)[24], or because it can be suspended in certain situations with the Heter Me'ah Rabbanim (see "Contemporary Relevance").

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[25] and Poland[26] but not in the Sephardic communities[27]. 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.[28] In countries such as the United States and Australia, places in which Jews were not living when the Cherem D'Rabbeinu Gershom was enacted, it is assumed that the Cherem applies there as well since the Jews in those countries are mostly descendants of the ones who were originally in Europe.[29]
  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, not engage in polygamy and will not forcibly divorce her- all similar elements to the Cherem D'Rabbeinu Gershom.[30]

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

There are several opinions on this issue.

  1. 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 enforced after 1239 CE as a result of minhag.[31] As such, any Halachic doubts dealing with this subject should be treated stringently.[32]
  2. Others are of the opinion that the Cherem D'Rabbeinu Gershom is Divrei Kabbalah[33] or equivalent to a Takanah established by the Chachmei HaGemara (Sages of the Talmud)[34].
  3. Others posit that the Cherem is only Rabbinic in nature and thus, one is able to be lenient in cases of doubt. [35]. This is the accepted opinion according to most poskim [36].
  4. Finally, there are some who distinguish between the two main halves of the Cherem, with the prohibition of a forcibly divorcing being more stringent than that of polygamy.[37]

Contemporary Relevance: Heter Me'ah Rabbanim

While the Cherem D'Rabbeinu Gershom did much to safeguard a wife from mistreatment from her husband, the very same provisions, if no mechanism is provided to prevent it, could cause a wife to have the ability to abuse her husband by never accepting a Get, causing him to be married to her indefinitely, despite his wish to divorce.

To prevent this, a mechanism is included within the Cherem D'Rabbeinu Gershom that a husband can divorce his wife, even without her consent, should he present a valid halachic rationale to end the marriage in front of a reputable Beis Din.[38] There are a number of circumstances under which permission may be granted, including (but not limited to):

  1. If the woman has become mentally incapacitated or clinically insane and is unlikely to recover.[39]
  2. If there would be a mitzvah to divorce one's wife (e.g. if she refuses to follow fundamental religious practices, or if the marriage was originally prohibited by halacha) or to marry a different woman (e.g. if the husband wants to remarry after 10 years so he can have children, yibum etc.).[40]
  3. If a wife refuses to have marital relations her husband for an extended period[41] or disappears as these may halachically describe her as a "moredes" (rebellious spouse)[42].
  4. If a wife verbally abuses, berates or embarrasses her husband in an extreme fashion to cause him pain and anguish.[43]
  5. Others include the husband's potential to sin (inappropriate thoughts or actions) due to deprivation of marital relations as an additional reason to provide the Heter, provided it is in combination with other mitigating factors. [44]

For the heter to be granted and allow him to remarry another woman, 100 rabbis[45] from at least three different states or countries[46] must review the facts of the case and approve the ruling of the initiating Beis Din. This process is known as the Heter Me'ah Rabbanim (permission of one hundred rabbis).

In contemporary times, a marriage will not be dissolved unless a legitimate Heter Me'ah Rabbanim is granted. This is true even if according to strict halacha, a heter is not needed or if only possibly needed.[47]

Many have offered reasons as to why the process of Heter Me'ah Rabbanim needs to be so difficult and extensive. Some of them include so that the husband will not be too hasty to initiate the process and that it will give him a chance to reconsider what he is doing[48]. 100 rabbis are used in the process so the proceedings will not be done secretly[49]. Three states are used so that one powerful rabbi in the initiating location can not pressure 99 rabbis under his jurisdiction and influence to approve the Heter, preventing the potential for corruption in the process.[50]

The Heter Me'ah Rabbanim process is one that is still used to this day. Thanks to modern technology and communication methods, it is easier today than ever before to complete the process of Heter Me'ah Rabbanim. With this said, such a process must be conducted with the help of reputable authorities and through the protocols mentioned above. If not, a system that is used to prevent the abuse of husbands can used to equally abusive wives, an outcome just as unfair and horrific.

One Last Thought

May it be the will of the Ribono Shel Olam that we build homes and families that are happy, healthy and passionately faithful to each other and to Torah values. May we never need to be familiar with these halachos. Amen Kein Yehi Ratzon.

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 Even HaEzer 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 Mishkenos Yaakov, Even HaEzer 1
  25. Shu"t Radvaz 4:1165 cites both Ashkenaz and France
  26. Rama (who lived in Poland), Even HaEzer 1:10 ("B'chol medinos eliu")
  27. 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
  28. Rama (quoting the MaHari Mintz), Even HaEzer 1:10. Levush Even HaEzer 1:10.
  29. Aruch HaShulchan, Even HaEzer 1:23
  30. 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.
  31. Shu"t MaHarik, Shoresh 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.
  32. Shu"t Chasam Sofer Even HaEzer 1:2
  33. Shu"t Nodeh B'Yehuda Tinyana Yoreh De'ah 146, Shu"t Avnei Nezer Even HaEzer 8.
  34. Shu"t Mahari Mintz, Siman 10
  35. Darkei Moshe (quoting the Maharil), Even HaEzer Siman 1:10. Shu"t Nodeh B'Yehuda Kamma Even HaEzer 33. The Nodeh B'Yehuda adds that even if the Cherem was instituted on a Torah level, it would still be Rabbinic today since the Cherem was originally meant to last until 1239 CE
  36. Shu"t Minchas Asher 2:77
  37. Shu"t Nodeh B'Yehuda Kamma Even HaEzer 87. This is contrast to Tinyana Yoreh De'ah 146 where this distinction is not made. To resolve the contradiction, a distinction is made between those who originally accepted the Cherem personally and those who were born after them.
  38. Shu"t Maharam M'Rutenberg 4:153. There is a question of who created the Heter Me'ah Rabbanim. Some are of the opinion Rabbeinu Gershom himself included the Heter as he made the Cherem (Hagos Mordechai Yevamos 108), while others are of the opinion that a Beis Din after him made the heter (Shu"t Tzemach Tzeddek 67).
  39. Bach, Even HaEzer 1:9, "U'medina". The Bach later on states that in such cases, even if the heter is approved, the husband is still financially responsible for his first wife's care, even after the marriage has been terminated. See his comments on Even HaEzer Siman 119:7
  40. Shu"t Minchas Asher 2:77
  41. Shu"t Chasam Sofer 2:167
  42. Encyclopedia Talmudit, Vol. 17, "Cherem D'Rabbeinu Gershom", section 13.
  43. Beis Shmuel Even HaEzer 119 Seif Katan 5 and Chelkas Mechokek Seif Katan 4 . See also Shu"t Minchas Asher 2:77, Yevamos 63b.
  44. Shu"t Nodeh B'Yehuda Tinyana, Even HaEzer 6. See also Shu"t Minchas Asher 1:71.
  45. There is a question as to what stature is required of the Rabbis who are signing the Heter. The popular opinion is that each of them should be "Re'uyim L'hora'ah (Shu"t Nodeh B'Yehuda Kamma, Even HaEzer 3). With that said, considering it is past 1239 CE, if it is not possible to have one hundred rabbis of that stature, those of a lesser stature can be used, assuming they are aware of the halachos of the Heter/Cherem and know what they are signing (Shu"t Ginas Veradim Vol. 2, 1:10 as quoted by Rav Asher Weiss (Shu"t Minchas Asher, 2:77)).
  46. There are some who hold that the rabbis must come from three distinct geographical areas (Shu"t Chaim shel Shalom 2:102), and according to some, with distinct languages (Shu"t Beis Yitzchak 20). Ultimately, the common practice is to operate in three countries or in three states within the United States (Shu"t Chasam Sofer Even HaEzer 1:4, Shiur of R' Ozer Glickman zt"l to the Kollel Yom Rishon at Yeshiva University).
  47. Beis Shmuel (quoting the Bach), Even HaEzer 1:10 Seif Katan 23
  48. Shu"t Igros Moshe Even HaEzer 1:2
  49. Bach Even HaEzer 1, "U'medina".
  50. Shu"t Beis Yitzchak Even HaEzer 20