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igamy and polygamy
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 (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., 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 (Arukh
ha-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.).
692 ENCYCLOPAEDIA JUDAICA, Second Edition, Volume 3