JUDAICA - Wisdom In Torah

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
bigamy and polygamy
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 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 (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 im-
ENCYCLOPAEDIA JUDAICA, Second Edition, Volume 3 693