Parashas Vayeitzei brings us to the story of Yaakov, the third and last of the three Avos. Specifically, it chronicles the years Yaakov spent in the house of Lavan, in the course of which Yaakov’s wives gave birth to his offspring—fathers of the future Tribes of Israel.
Commentaries reflect on the fact that Yaakov married two sisters, in seeming violation of the Biblical injunction against doing so. They do not, however, make any issue of the fact that Yaakov Avinu married more than one woman—as we read in the Parashah, he married four women.
Indeed, this aspect of Yaakov’s life raises no difficulty, because there is no Biblical prohibition against marrying more than one woman. Such a prohibition is not mentioned in writings of the Talmudic Sages either. Though the question of marrying more than one wife is raised, the halachah follows the opinion of Rava, who states that a person may take more than one wife, provided he has the means to support them (Yevamos 65b).
Though permitted, polygamy was clearly not common. In the Talmud and other writings of the Sages we seldom find a Sage or other individual taking more than one wife. Monogamy seems to have been the standard even when polygamy involved no transgression.
Around the year 1,000 CE – the precise year is unknown (see below)– Rabbeinu Gershom Me’or Ha-Golah (“the Light of the Exile”) decreed a ban on a Jewish man who takes more than one wife. The ban included a number of other acts: divorcing a woman against her will, reading someone else’s private mail and a number of other acts.
In the present article we will address the matter of the Cherem of Rabbeinu Gershom concerning polygamy. Did the Cherem expire, and when, if so, is or was the expiry date? Why is the Cherem legally binding, and does it apply to all communities? What was the Cherem in the first place?
We will address these questions, among others, in the present article.
Reasons for the Cherem
A variety of reasons why Rabbeinu Gershom enacted the Cherem are offered.
- The Mordechai (Kesubos 291, cited in Darchei Moshe, Even HaEzer 1:11) explains that the reason for the enactment is the benefit of the family unit: “The reason for the enactment is because of quarreling, and not because of any concern for a Torah prohibition.” The assumption is that a monogamous family will be more harmonious than a polygamous family, since the latter often leads to jealousy and strife.
- Another reason offered is that it protects the rights of women. The Rashba (cited by the Darchei Moshe, cit. 9) suggests that the enactment means to deter men from abusing their wives. Men might not act decently to their wives, if they could simply marry another wife if need be. Based on this, he writes that where a person needs to wed an additional wife based on Torah law or rabbinic precedent, it is permitted to do so.
- Shut Avnei Nezer (Even HaEzer 1:2), cites Maharam Padva who says that the enactment was made to ensure that the prohibition against divorcing a woman against her will (enacted by Rabbeinu Gershom) should not be circumvented. If a person can simply marry an extra wife, he would not need to divorce his first wife, so the prohibition against divorcing her against her will would be ineffectual. A similar idea is mentioned by the Chasam Sofer (Even HaEzer 1:1).
- Maharam Padva (Shut, no. 14) writes that the enactment was because of the financial difficulty of maintaining more than one wife: “Even according to Rava, whom the halachah follows, whereby a man may marry several wives if he has the wherewithal to supply their needs, our Sages were concerned that the troubles of the exile will leave a person destitute.”
- Shut Avnei Nezer (loc. cit.) notes two additional reasons: To dampen personal joy in recognition of the exile and Destruction of the Temple (from Shemen Sasson), and out of concern that a person may wed wives in two different locales such that each would be unaware of the other, which might lead to brother marrying his sister (from Mishkenos Yaakov).
Nature of the Prohibition
The Darchei Moshe (Even HaEzer 1) notes a dispute among authorities if a man had been married for ten years or more without having children. Under such circumstances there is a mitzvah to divorce his wife and to marry a different woman, with whom he might merit children. If the option of divorcing is not possible for some reason, is it permitted to take another wife so that he might have children with her?
After noting that this question is the subject of a dispute, the Darchei Moshe concludes that, given the doubt involved, it is permitted to wed the additional wife. The reason is that the nature of the prohibition is not a Torah law or concern for a Torah transgression, but rather a later enactment. This ruling is noted by the Rema (Even HaEzer 1:10).
The Avnei Nezer, in the aforementioned teshuvah, writes that this matter is itself subject to a dispute. He notes that unlike the Darchei Moshe, the Noda Biyhuda, the Chasam Sofer, and others, derive (from the Ran) that even in places of doubt, the decree applies.
The Avnei Nezer explains that this is contingent on the reason for the enactment. If the reason is out of concern for marital harmony, financial stability, and so on, it follows that the prohibition is certainly no more than rabbinic in nature. However, if the enactment was made out of concern for Torah law, such as the possibility that brother should marry sister, it follows that the enactment will have the stringency of Torah law, and one would have to be stringent in cases of doubt.
The Force of the Cherem
Why is the Cherem of Rabbeinu Gershom binding on all Ashkenazi Jewry? The Rosh addresses this question in a responsum (43:8):
“There was a scholar in our land and his name was Rabbeinu Gershom. He lived during the time of the Ge’onim and instituted good decrees in the matter of divorce. His decrees are established as if they were given from Sinai because [the people] accepted them upon themselves and transmitted them, generation after generation.”
The force of Rabbenu Gershom’s decrees is their universal acceptance by the community. Because the decree was accepted by all Ashkenazi communities, this is the reason they are binding.
This point is especially salient (see further below) given the debate over the ongoing status of the decrees. One point of debate centers around the question of their expiration after a certain date, as discussed at length by commentaries to the Tur and the Shulchan Aruch (Even HaEzer 1).
Based on the Maharik, the Beis Yosef (Even HaEzer 1; Responsa Beis Yosef, Kesuvos no. 14) writes that the decrees of Rabbeinu Gershom are not in effect after the year 1340, which is the end of the fifth millenium (since Creation). Based on this, he rules in Shulchan Aruch (Even Ha-Ezer 1:10) that the decrees are no longer in effect.
The Rema, however, rules that the custom is still to adhere to the decrees, and the Maharshal (Yam Shel Shlomo, Yevamos 6:41; Responsa Maharshal, no. 14) likewise argues forcefully that the decrees are still in effect. The Pischei Teshuva (1:19) writes that this is the general agreement of Rishonim.
In addition to the question of expiration, the Beis Yosef cites the Rashba that the enactments only applied in specific geographical areas, and the decrees “were not made for all places… The decree did not spread to our borders, and even in Provence and the areas close to France, we have not heard that it has spread. In practice, too, Torah scholars in our vicinity commonly wed more than one wife, and nobody has been concerned for this matter.”
This reasoning is another basis for the ruling of the Shulchan Aruch whereby Sephardic communities are not bound by the decrees of Rabbeinu Gershom.
Special Cases: Heter Me’ah Rabbanim
In certain cases, the decree of Rabbeinu Gershom does not apply, and it is permitted for a man to marry a second wife.
The Rema mentions this ruling concerning a wife who became mentally ill, and in additional cases in which the wife cannot be divorced: “Where the first wife cannot be divorced due to mental incapacitation, or where he is legally obligated to divorce her yet she does not agree to receive a Get, we are lenient and permit him to take another wife” (Even HaEzer 1:10).
The Beis Shmuel, citing the Bach, writes that this permission requires that 100 rabbis sign a document of permission, with the entire process being executed by a leading Beis Din of the generation: “We have by tradition from great authorities that this matter needs to be brought before the Torah leaders of the generation, and they must agree as shown by 100 signatories. The man must also deposit the amount of her Ketuvah and dowry.”
The Achiezer (1:10) writes that under certain circumstances—specifically, the case of a moredes who refuses to live together with her husband—there is no need for a permit of 100 rabbis. However, he concludes, the custom is that in all circumstances we require the document of permit to be signed by 100 rabbis.
In the question of which is more severe—the prohibition (by decree) against divorcing a woman against her will, or the prohibition (by decree) of marrying a second wife—the Noda Biyhuda (Kama, Even HaEzer, 1) states that divorcing a woman against her will is more severe than the prohibition against taking a second wife. He proves this by pointing out that the prohibition against taking a second wife was limited in time, according to some, (see above), whereas that of divorcing against a woman’s will was not.
The custom is for beis din to permit, under extenuating circumstances, marrying a second wife, and not divorcing against the wife’s will.
The Halachic Situation in Israel
This discussion raises the question of the nature of the decrees in Israel of today.
For Ashkenazim, the decree is still in force: Ashkenazim living in Israel continue to uphold Ashkenazi custom, and this clearly includes the prohibition against polygamy. As noted above (from the Rosh), the fact that the custom continues to be religiously enforced is itself proof of its binding status.
For Sephardim, Rabbi Ovadya Yosef (Yabia Omer 7:2) writes that in principle, Sephardim follow the ruling of the Shulchan Aruch, so that there is no need to heed the decree of Rabbeinu Gershom. However, he immediately adds that the common custom is for the Kesuvah to include an explicit stipulation that it is forbidden for the husband to take a second wife.
He notes that this stipulation, which has the force of an oath, will not apply to cases in which there is a mitzvah to take a second wife, for instance where a man has not had children for ten years. Under these circumstances, he writes, it is proper that the Rabbinic Tribunal and Chief Rabbinate issue a permit for the man to take a second wife—which is a legal requirement under Israeli law in order to allow bigamy.
Many authorities, however, require a 100-Rabbi document even under these circumstances. In any case, it is not the common custom for men to marry a second wife even if the couple is childless.