BIGAMY AND POLYGAMY

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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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;
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I. Schepansky, in: Hadorom, 22 (1965), 103-20;
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Howard A. Landman / HaL Computer Systems / landman@hal.com

Last updated 1995 May 4