BIGAMY AND POLYGAMY

In Jewish law the concept of bigamy (or polygamy) can involve either (1) a married woman (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. 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 Meḥokek, 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).

Ḥerem de-Rabbenu Gershom

substance of the ban

In the course of time and for varying reasons (Oẓar ha-Posekim, eh 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 Ḥerem de-Rabbenu Gershom, also prohibited a husband from divorcing his wife against her will. Various versions of the takkanah exist (Oẓar 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; Oẓar 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. 1; 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 ẓarah ("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; Pitḥei 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 (Kenesetha-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., Pitḥei Teshuvah, 5; Oẓar ha-Posekim, eh 1:80, 1 and 2).

applicability of the Ḥerem as to time and place

Many authorities were of the opinion that the validity of the ḥerem 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 ḥerem remained in force after 1240, since later generations accepted it as a binding takkanah. Accordingly, the ḥerem, 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-Shulḥan, eh 1:23; Oẓar 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-Shulḥan, eh 1:23).

The ḥerem 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 (Arukhha-Shulḥan, eh 1:23). In general it can be said that the ḥerem 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-Shulḥan and Oẓar ha-Posekim, loc. cit.). Thus, Maimonides, who was a Sephardi, makes no reference at all to the ḥerem. 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 Ḥemed, Asefat Dinim, Ishut 2; Keneset ha-Gedolah, eh 1, Beit Yosef 13, 16; Oẓar ha-Posekim, ibid., 1:80, 8; pdr 7:65).

People who move from a country where the ḥerem 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-Shulḥan, loc. cit.; Oẓar ha-Posekim, eh 1:75, 1; Sh. Ar., eh 1); (2) local custom is followed, so that if the ḥerem applies to a particular country it is binding on everyone, irrespective of their country of origin (Arukh ha-Shulḥan, ibid.; Oẓar 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 ḥerem 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 ḥerem 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-Shulḥan, 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 ḥerem 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 ḥerem 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 (Baḥ, eh 119; Sh. Ar., eh 1; Beit Shemu'el 1, n. 23; 119, n.6; Ḥelkat Meḥokek, ibid., 10–12; Oẓar 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 1; Beit Shemu'el, ibid.; Oẓar 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, Pitḥei Teshuvah, 16, concl.; Oẓar ha-Posekim, eh 1:72, 14).

On the strength of the aforementioned rule, a release from the ḥerem 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; Ḥelkat Meḥokek, ibid., 16; Oẓar 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 ḥerem was not meant for such a case (Oẓar 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; Oẓar ha-Posekim, eh 1:68; Arukh ha-Shulḥan, eh 1:25).

As has already been stated, in Oriental communities fora 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 (Oẓar ha-Posekim, eh 1:61, 5, subsec. 3; Sedei Ḥemed, 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 ḥerem to apply (Sedei Ḥemed; Oẓar 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 ḥerem were to apply, would warrant his release from the prohibition (Sedei Ḥemed, ibid.; Oẓar ha-Posekim, eh 1:72, 9).

procedure for granting the hetter

After the court has decided that a release from the ḥerem should be granted, the matter is referred to 100 rabbis of three "countries" (Oẓar 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-Shulḥan, eh 1:26; Oẓar 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 (Baḥ, eh 119; Sh. Ar., EH; Beit Shemu'el 1, n. 23; Arukh ha-Shulḥan, eh 1:25; Oẓar 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 (Oẓar 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 Takkanotha-Diyyun be-Vattei ha-Din ha-Rabbaniyyim be-Yisrael, 5720–1960.

[Ben-Zion (Benno) Schereschewsky]

Following the enactment of the Penal Law, 5737 – 1977, the prohibition on polygamy is now regulated in sections 175–183 of that Law. Polygamy will not be considered an offense if committed pursuant to a permit granted in a final judgment of the rabbinical court, subject to the judgment having been approved by the president of the Rabbinical High Court of Appeals (section 179 of Law).

The Supreme Court was confronted with a question concerning the range of circumstances under which the rabbinical court could give a marriage permit, and thereby decriminalizing the act of bigamy in certain given cases. The specific question considered was whether the rabbinical court was authorized to permit an additional marriage even where the granting of the permit was not the result of the woman's inability to receive a get – e.g., due to insanity etc, as stated above – but was a tactic adopted by the rabbinical court to exert pressure on a recalcitrant wife who refuses to accept a get. In its ruling in Street (hc 301/63, Street v. Chief Rabbi of Israel 18 (1) pd 598) the Supreme Court ruled that the goals of the section dealing with the permit that may be given by the rabbinical court must comport with the overall goals of the law prohibiting bigamy. As such, the granting of a permit is only possible when it does not diverge from the purpose of the law, i.e., when the need for a marriage permit stems from an objective inability to give the get. In keeping with this determination, the court revoked the permit granted by the rabbinical court in that particular case.

In the judgment in Boronovsky (fh 10/69, Boronovsky v. Chief Rabbis of Israel, 25 (1) pd 7) the Court changed the Street ruling, determining that the statutory recognition of a permit given by the rabbinical court extended to any permit that could be granted on the basis of any halakhically based grounds, even when this was done as a means of compelling a recalcitrant wife to accept a get.

[Menachem Elon (2^nd ed.)]

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