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Polygamy and Halacha

Question: Rabbi: After reading some of the questions asked regarding marriage I could not find one that answered the question on my mind about a man and a women living together. Therefore, my question is: What does the Torah or Talmud say about a man and a women who have lived together for several years (say 7 or more) and who considered themselves married but have not gone through the “legal” process?

Not having much experience in what the Torah says, I was wondering where we might look for this information. So far I understand that there are two stages to a marriage, the Kiddusin (which by accepting the dowery/money, a contract or sexual intercourse effects a binding marriage) and Nisuin since I have a limited understanding of these processes I believe that this couple would be considered “married”?!! Furthermore, it is my understanding now that this “couple” is looking to “legally” marry. Should they continue to live together or separate until they perform the “legal” ceremony? Are there any books or teachings that we might be able to study regarding this matter. Thank you for taking the time to read this question.

A. You’ve asked a good question. The Talmud distinguishes between a concubine and a wife in the following way: Wives have Ketubah (marriage contract) and Kiddushin (formal marriage ceremony i.e., hupah) while concubines have neither (Sanhedrin 21a, Maimonides Hilchot Melachim 4:4, cf. Lechem Mishna and Radbaz, ad loc.).

Ibn Daud, in his notes to Maimonides, adds that any woman who does not dedicate herself to one man, is considered to be a harlot (Ibn Daud’s Glosses to Hilchot Ishut 1:4)

Rashi takes issue with this definition. According to him, even a concubine must have Kiddushin, but what she lacks is a Ketubah (which delineates the financial responsibilities a husband has for his wife). In fact, Jewish law insists that even a married woman must have a Ketubah, lest she betreated as a concubine. Rashi’s opinion draws support from the Jerusalem Talmud (J. Ketubot 5:2, 29d) Most Halachic authorities rule in accordance with Maimonides and the Babylonian Talmud.

Opinions differ with respect whether a concubine is permitted or forbidden. Some scholars say that neither biblical or rabbinical law prohibits it. All that matters is that the concubine go to the mikvah ( a ritual pool of water) so that the man is not guilty of having sex with a menstruating woman (EH 26:1). The majority of authorities of the Middle Ages argue that concubinage was formally forbidden by the rabbis as immoral. Radbaz for an example wrote back in the early 17th century, “Nowadays a woman is not sexually permitted to any man except through the formal marriage ceremony of Kiddushin, Chuppah,  Sheva Brachot (the seven marriage blessings) and Ketubah (Resp, Vol, 4 #225). Only one notable 17th century authority, Jacob Emden (Responsum no. 15), expresses the opinion that it should be permitted. Then again there some authorities that hold only a king is entitled to a concubine. Curiously, Emden’s rulings are often cited today by a number of Orthodox men who wish to justify having more than one spouse.

The New York Daily News writes in their December29th, 1996:

“A shadowy Brooklyn organization is recruiting married Orthodox Jewish men to enter extramarital relations by promoting the ancient biblical concept of concubines.

The organization, which calls itself Shalom Bayis (Household Peace in Hebrew), operates a telephone hotline through which men can meet women willing to serve as concubines kept mistresses.”

http://www.nydailynews.com/archives/news/1996/12/29/1996-12-29_the_comeback_of_concubines.html

This issue obviously poses many serious problems for the Orthodox community, once which I am sure their rabbinic leaders are trying to solve.With professional help, many of these marriages might be saved; but should therapy prove unhelpful, divorce would certainly be preferable to a failed marriage.

However, the Tanakh clearly teaches that monogamy was the original ideal the biblical writers endorsed. Whenever polygamy occurs in the Tanakh, it invariably involves nothing but trouble (just examine the complicated lives of Abraham, Jacob and David for a clear example). The only serious exception is the law regarding the levirate marriage (i.e., where the brother dies without leaving an heir, the brother has a duty to marry his brother-in-law’s wife, see Lev. 25:23ff.; Num. 27:8–11; Jer. 32:6ff.).  In a Chinese pictogram for “trouble” it shows two women living under the same roof. The prophetical literature condemns polygamy; according to the prophetical imagination, only Israel as the sole bride of God (Isa. 50:1; 54:6–7; 62:4–5; Jer. 2:2; Ezek. 16; Hos. 2:4f.). And the rest is commentary.

Yours,

Rabbi Dr. Michael Samuel