Polygamy in Jewish law-An overview of Cherem Rabbeinu Gershom [The ban against polygamy]:[1]

According to Jewish law, it is possible for a man to be married to more than one woman at a time, and there is in fact no limit as to the amount of women that a man can legally consecrate and be considered married to him, hence requiring a bill of divorce to be given to each of these wives in order for any one of them to be permitted to marry another man. The entire discussion of this article, and the general subject of the ban on polygamy, is only regarding if it is initially permitted for a man to marry and remain married to more than one wife, or whether it is initially forbidden to do so and we force him to divorce one of his wives if he went ahead and did so. However, either way, the additional wife would require a bill of divorce, as Torah law legally validates the consecration of even many women by a single man, and this matter was never debated or uprooted by the ban.[2] This is unlike a polyamorous relationship in which a woman is “married” to more than one man, of which its legal validity does not exist according to Jewish law, and hence she will always be considered married to only one man even if she was consecrated by a second man, and a second man would simply be considered biblical adultery for which the parties can be found liable for capital punishment. [Accordingly, it is also understood that the legal Halachic concept of adultery is only applicable when involving a married woman. However, a man never transgresses the prohibition of adultery with a nonmarried woman, even if he is married, although other prohibitions may be relevant, such as betraying his wife, having relations out of wedlock, and the polygamy ban if he consecrates the second woman.] This is also unlike the second ban which was placed by Rabbeinu Gershom which restricts a man from divorcing his wife against her will, in which case he instituted that the bill of divorce be considered null and void in the event that one did so[3], unlike his polygamy ban which still views the marriage to a second wife as legally binding, despite it transgression of the ban.

A. The Biblical and Talmudic law:[4]

There is no intrinsic Biblical or even Talmudic [i.e. Rabbinic] restriction against polygamy, and hence from the perspective of Biblical and Talmudic law it is even initially permitted for a man to marry and be married to more than one wife simultaneously[5], and so was practiced throughout the ages by the greatest of scholars.[6] In the words of the Rambam[7], “a man may marry many women even 100, whether by consecrating them simultaneously, or one after the other.” However, even in the Talmud, we find a debate regarding if this may be done without the first wife’s consent:

Polygamy against the consent of the first wife: According to some Talmudic opinions[8], it is forbidden for a man to marry a second wife without the consent of his first wife, and one who does so can be forced to divorce his first wife and pay for her Kesuba. However, according to other Talmudic opinions[9], it is even initially permitted for a man to marry several additional wives to that of his first wife even without the consent of his first wife, so long as he has the financial ability to support them. The main Halachic ruling follows this second opinion.[10] [However, this only applied in previous times when polygamy was widely practiced. However, in today’s times when polygamy is no longer widely practiced, we rule similar to the former opinion that a man cannot marry an additional woman without consent of his first wife.[11] Hence, the ramification between the letter of the law ruling today excluding the ban of Rabbeinu Gershom, versus the additional ban of Rabbeinu Gershom, is only regarding if one can marry a second wife with the consent of the first wife. However, without her consent, everyone agrees one may not marry a second wife irrelevant of the ban of Rabbeinu Gershom.[12] This applies for all world Jewry, whether Sephardim or Ashkenazim.]

Ability to financially support all wives:[13] According to all opinions, a man may only marry an additional woman if he has the financial ability to support her [unless the second wife forgives her alimony rights and is willing to live with less than she rightfully deserves[14]].

Advice for Shalom Bayis: The Talmud[15] states that having a polygamist marriage is good advice for anyone who suffers from an antagonizing wife and is unable to divorce her due to the large Kesuba payment that would be due to her. The logic for this is because she would be fearful against antagonizing her husband due to fear of him giving more attention to the second wife, which is more painful for her than being punctured by a needle.

The recommended limitation due to intimacy rights:[16] Although there is no Halachic limit as to the number of wives that a man may marry, nevertheless, the sages advised that for the benefit of the marriage, one should not marry more than four wives in order so each wife can receive her Onah at least once a month.

Marrying two wives in two different places:[17] From the letter of the law, it is forbidden for a man to marry two wives in two different areas due to worry of the children, who are paternal siblings, marrying each other, [and hence the Talmudic allowance which predates the ban of Rabbeinu Gershom only permits to marry two wives in the same locality]. This, however, is with exception to if the individual is famous and everyone knows who his wives and children are.

Divorcing against will of wife:[18] From the letter of the law, a man can divorce his wife against her will.

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[1] See Michaber E.H. 1:9-11; Encyclopedia Talmudit Vol. 17 p. 378 [Erech Cherem Rabbeinu Gershom]

[2] Mordechai Kiddushin 522 in name of Maharam; Maharik 84; Noda Beyehuda E.H. 129; Encyclopedia Talmudit ibid p. 395 footnotes 185

[3] See Nussach of Cherem in Maharam Merothenberg 1022; Maharam Mintz 10; Encyclopedia Talmudit ibid p. 397

[4] See Encyclopedia Talmudit Vol. 17 p. 379

[5] See Yevamos 65a; Rambam Ishus 14:3; Tur 1:9; Michaber E.H. 1:9; Encyclopedia Talmudit Vol. 17 p. 379 footnote 11

[6] See Rashba 3:446 [and 1:1205, 4:114], brought in Beis Yosef 1:10 and Darkei Moshe 1:9

[7] Rambam Ishus 14:3

[8] Rav Ami in Yevamos ibid

[9] Rava in Yevamos ibid

[10] Michaber E.H. 1:9; Tur 1:9; Rambam Ishus 14:3

[11] See Michaber E.H. 1:9-10; 76:8; Beis Yosef 1:9; Tur 1:9; Ritva Yevamos 44a in name of Rabosav, brought in Nimukei Yosef Yevamos 14b

The reason: As since polygamy is no longer widely practiced, it is considered inherently conditioned [i.e. Umdana Demuchach] within his first wife’s consent to his consecration of her, that he will not marry another wife without her consent. In this regard, it is similar to the Halachic ruling in business law, that if one rented an animal to carry the load of a donkey and he may not change the agreement and have it carry the load of a camel. [Beis Shmuel E.H. 1:20; Chelkas Mechokeik 1:15; Ritva ibid]

[12] Beis Shmuel E.H. 1:20; Chelkas Mechokeik 1:15; Darkei Moshe 1:8; Taz 1:14; Rav Akiva Eiger 1

[13] Michaber E.H. 1:9; Tur 1:9; Yevamos ibid; See Rivash 91, brought in Beis Yosef 1:9

[14] Beis Shmuel E.H. 1:18; Chelkas Mechokeik 1:13; Taz 1:13

[15] Rava in Yevamos 63b

[16] Michaber E.H. 1:9; Tur 1:9; Yevamos 44a; Chelkas Mechokeik 1:14

[17] Michaber E.H. 2:11; Rama 1:9; Yevamos 37b

[18] Michaber E.H. 119:6; Rambam Geirushin 1:2