Bigamy and Polygamy
Excerpted from the Jewish Encyclopedia
In Jewish law the concept of bigamy (or polygamy) can involve either
(1) a married women (eshet ish)
purporting to contract a second marriage to another man
(or to other men) during the subsistence of her first marriage;
or (2) a married man contracting marriages to other women
during the subsistence of his first marriage.
These two aspects must be considered separately.
(1) Relating to Women
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 subsists,
and a purported marriage to another man is thus totally invalid.
Nevertheless,
such a bigamous "marriage" does incur severe legal consequences --
primarily because of the law that sexual intercourse
between a married woman and a man other than her husband
(i.e., adultery)
results in her subsequently being prohibited to both men forever
and she then requires a get ("divorce") from both of them
(see *Divorce, *Adultery).
She requires a divorce from her husband,
mi-de-Oraita ("according to biblical law"),
because, although her adultery renders her prohibited to him,
her legal marriage to him continues to subsist.
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).
Notwithstanding her divorce by both men,
on the death of either of them
she continues prohibited to the survivor forever
(Sot. 27b; Yev. 87b and 88b; Yad, Gerushin, 10:4-5; Sh. Ar., EH 17:56).
The aforementioned 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 (see Prohibited *Marriages)
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, adulterous, union
are classed as *mamzerim according to biblical law
and also that her financial rights are affected (Yev. 87b).
(2) Relating to Men.
The law is 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 that polygamy was permissible
only if the husband was capable of properly fulfilling
his marital duties toward each of his wives (see *Marriage).
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,
e.g., 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
(Sh. Ar., EH 1:9; Beit Shemu'el, ibid., 20; Helkat Mehokek, ibid., 15, 76:8).
Generally, the husband can only be released from this restriction
with his wife's consent
(loc. cit.; Darkhei Moshe, EH 1:1, n. 8; Sh. Ar., EH 76).
Herem de-Rabbenu Gershom
SUBSTANCE OF THE BAN
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 b. Judah and his court
enacted the *takkanah 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 Herem 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).
APPLICABILITY OF THE HEREM AS TO TIME AND PLACE
Many authorities were of the opinion
that the validity of the herem 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 herem remained in force after 1240,
since later generations accepted it as a binding takkanah.
Accordingly, the herem, 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 ketubbah,
as such omission is regarded as a "clerical error"
(Keneset ha-Gedolah, EH 1, Tur 17; Arukh ha-Shulhan EH 1:23).
The herem 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 herem 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 herem.
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 herem 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 herem 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 herem
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 herem 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.).
RELEASE FROM THE PROHIBITION
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 herem 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 herem against bigamy,
which is granted by the bet din 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-Posekim, 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 herem 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 herem 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 herem 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 herem 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 herem 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
(see *Agunah;
Arukh ha-Shulhan, EH 1:26;
Ozar ha-Posekim, EH 1:72, 30-31).
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 sum as the court may determine
to cover the wife's maintenance and medical expenses
(Ozar ha-Posekim, EH 1:72, 29).
State of Israel
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-Rabbaniyyim be-Yisrael, 5720-1960. See also *Monogamy.
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F. Rosenthal, in: Jubelschrift ... Hildesheimer (1890), 37-53;
Finkelstein, Middle Ages, 111-26,205-15;
A. H. Freimann, Seder Kiddushin ve-Nissu'in (1945), passim;
M. Elon, in: Hed ha-Mishpal (1957), 233-5;
S. Lowy, in: JJS, 9 (1958), 115-38;
I. Glasner, in: Ha-Peraklit 16 (1960), 274-80;
Z. W. Falk, Nissu'in ve-Gerushin. . . (1961), passim;
P. Tishbi, in: 'rarbiz, 34 (1964/65), 49-55;
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I. Schepansky, in: Hadorom, 22 (1965), 103-20;
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Howard A. Landman /
howard@polyamory.org
Created sometime before 1999 April 28
Last updated 2000 June 24