Saturday, August 5, 2017

questions about the Laws of Pilegesh from Deena Tova

marriage be allowed to remarry her first husband if the second one died (or "divorced") her?
Questions about the Laws of Pilegesh from Deena Tova on my blog torahhalacha.blogspot.com.


Questions;
1) A women who had a kosher divorce and remarried a second husband with a pelegesh marriage. Is she allowed to remarry her first husband if the second one died (or "divorced") her?
2) Would a kohen who married using a pelegesh marriage be allowed to stay with his wife if she was lo alanu raped.
3) Would the children of a pelegesh marriage of the father being a kohen be considered kosher kohanim?
4) Would a man be allowed to marry more than one wife with a pelegesh marriage?
5) Would a women who married by pelegesh marriage and "divorced" be allowed to marry a kohen?
6) Why would there be a problem about a lady going to a regular mikvah? Who has to know if it is a marriage by kiddushin or by pelegesh marriage?
7) Would this solve problems if a husband dies but it can't be proven, or he disappears, that the wife could somehow get remarried?
8) Would this mean that the wife’s earning in a pelegesh marriage belongs to her?


Thank you very much for your really excellent questions. First of all, when somebody wants to know what the halacha is in a specific case, there are two kinds. One is a case, such as is a food kosher, or what we may do on Shabbos, which is something taught in many books easily available, and is well known to the various rabbis who work in these areas regularly. Then there is a question about Pilegesh. Who today is involved in these questions? There are here or there somebody married as a Pilegesh, but I don’t know how many rabbis are experts in the halacha of Pilegesh.

Second of all, when I suggest somebody marrying with Pilegesh, it is mainly because I have a terrible fear of Kiddushin. For most women, when the marriage sours, they will find a “rabbi” who will tell them to force a GET from their husband, and some of them, all over the world now, just tell a woman to leave with no GET! Children born from an invalid GET or surely from no GET are mamzerim. Thus, when I trumpet how important Pilegesh is, it is because most women today cannot be trusted to spend their whole lives with a husband they don’t like. People like that should not marry with Kiddushin in the first place. For them Pilegesh is preferable. Whenever she wants, she just leaves. And the gemora in Sanhedrin 21A, quoted by the Vilna Gaon in the beginning of the Laws of Kiddushin in Shulchan Aruch, clearly states that people may marry a Pilegesh without making Kiddushin.

Thus, I would not necessarily tell a woman who is positive she can maintain her life with a bad husband forever, with never violating the Torah and making an invalid GET or no GET, to marry not with Kiddushin but with Pilegesh. Having said that, another side of me says that today things are bad, and in ten years, they will be much worse, and in twenty years, very, very bad. That is what is happening today. If so, I would really be happy if no woman marries with Kiddushin, because who knows?

We have two major poskim who strongly suggest marrying with Pilegesh. One is the Ramban and the other is Reb Yaacov Emden, son of the Chacham Tsvi. The Ramban states clearly that Pilegesh is permitted, period. He even claims that the Rambam agreed with him.  The other person is Reb Yaacov Emden, who is very strong about encouraging Pilegesh, but for different reasons. He maintains that many people need the freedom to marry a Pilegesh, for various reasons. His approach is that Pilegesh can save many people from many terrible sins and problems.

My great fear today of women stuck in marriages done with Kiddushin is rooted in the reality that today major rabbis, the biggest names, are encouraging many women to remarry without a kosher GET and thus have children who are mamzerim. The count of mamzerim is going to rise more and more and the only hope is Pilegesh. Pilegesh is the only way to solve the problem of making mamzerim with invalid Gittin. Unless the husband dies!
Now let us get to the excellent questions. Some questions can have a strong answer and some a doubtful answer, but at least, let us try to answer as well as we can. That is, when we have to answer a question we like to find sources that say clearly what the answer is. But in Pilegesh there are very few sources that tell us clear answers, and even the ones who do tell us various things don’t do it in the clearest fashion. So, some questions here will be answered one way and some the other. I will do what I can bli neder.
Let me add another important thing. The laws of Pilegesh are much more lenient than the laws of Kiddushin. People today are accustomed to Kiddushin and yet, to avoid mamzerim, we encourage people to think about marrying with Pilegesh. And yet, if we talk about the leniencies some rabbis have in Pilegesh, we will lose respect for those who considered marriage in conservative terms. I am very strong in that. Meaning that I believe that somebody who wants to marry Pilegesh must only do it with a rabbi and preferably a Beth Din backing them. This Beth Din, I feel, must prepare for the Pilegesh people the ability to leave the marriage at any time, to avoid the terror of Agunose. But to go into the leniencies some rabbis may have for Pilegesh can spoil people’s appreciation or acceptance of Pilegesh. Therefore, I want to present Pilegesh mainly as a regular marriage with a conservative bent, the exception being that the Pilegesh people can leave at any time with no penalty. The answers I supply here reflect this latter conservative belt.


Questions from Deena Tova;
1) A women had a kosher divorce and remarried a second husband with a pelegesh marriage. Is she  allowed to remarry her first husband if the second one died (or "divorced") her?
Answer from Dovid Eidensohn

Questions from Deena Tova;
1) A women had a kosher divorce and remarried a second husband with a pelegesh marriage. Is she  allowed to remarry her first husband if the second one died (or "divorced") her?
Answer from Dovid Eidensohn
If the first husband gave her kiddushin, as it seems from the question, and then made a kosher divorce, that husband still has a connection with the divorced lady, from Kiddushin. If so, if the lady married previously with kiddushin then married with Pilegesh, whereby the husband does not acquire here and there is no compelling the woman to refrain from this or that husband, and no kiddushin that can interfere here, it would seem that she should be able to return to the first husband who does have a connection with her from his kiddushin. It makes no difference if the second Pilegesh husband died or “divorced” her, because Pilegesh doesn’t have the problems of Kiddushin, only basically to honor marriage with faithful dignity.

See also Shulchan Aruch Even Hoezer 12:7  “A Pilegesh is married to a man, and she decides to leave him and marry somebody else, must wait 92 days [as taught in the entire chapter there that people who may be pregnant must wait 92 days and some include even those who cannot have children, etc.] The Chelkas Mechokake there #6 who says, “We are talking that she became pregnant  in error, and yes, if a Pilegesh becomes pregnant from her [Pilegesh] husband and then she goes and takes Kiddushin marriage from another man, and then is divorced from him with a kosher GET, she may return to her first husband [married with Kiddushin], just as a woman married with Kiddushin who was divorced from him with a proper GET may remarry her Kiddushin husband, because a Pilegesh goes with the name of the first husband [who had Kiddushin].

2) Would a kohen who married using a pelegesh marriage be allowed to stay with his wife if she was lo alanu raped?

Answer: See Even Hoezer 6:10 – If the wife of a Kohen is slept with even if it was forced is forbidden to her husband. See Beis Shmuel there 22 that the wife is forbidden to her Kohen husband because she is a zona. Thus even if the rapist was a Yisroel or a gentile the wife becomes a zona because we rule that any one who is forbidden to marry the woman and sleeps with her in sin whether willingly or forced she becomes a zona and is forbidden to a Kohen. If the woman and her husband were Pilegesh  recall that the Ramban says clearly that Pilegesh marriage does not give the husband acquisition like Kiddushin, it does not forbid marrying somebody else as Kiddushin does, and it does not convey a holiness as Kiddushin does, and that holiness can make problems but only in Kiddushin, as it does not function with Pilegesh. On the other hand, Pilegesh is certainly a marriage, otherwise the Torah does not permit men and women to be together with Kiddushin or Pilegesh marriage. If Pilegesh is a marriage even if it has less strict laws than Kiddushin, it is still a marriage. And if it is a real Torah recognized marriage (see Sanhedrin 21A and the Gro in the beginning of the laws of Kiddushin in Shulchan Aruch) and if the woman would leave her husband and go down the block to sleep with somebody she would violate Pilegesh marriage, it is quite possible that the wife would even in rape, become a zonah. If so, she is forbidden to her Kohen husband. However, there is no open source for this and those who talk about Kiddushin and a woman who becomes a zona for sleeping with somebody forbidden to her, do not talk about Pilegesh. So I cannot be sure, because even the Ramban never said that Pilegesh is not a marriage. Because if it is not a marriage, is it from the street? If so, why is Pilegesh not forbidden if it not really a marriage?

3) Would the children of a pelegesh marriage of the father being a kohen be considered kosher kohanim?

Answer. Rav Yaacov Emden the son of the Chacham Tsvi in his sefer שאילת יעקץ  II:15 at the end says that “(in a Pilegesh marriage) the husband should explain to her that a child born from their Pilegesh marriage will be כשרים כשאר מיוחסים בישראל.” Pilegesh is a real marriage and the children are full Jewish children. If the father is a kohen and the marriage is Pilegesh his marriage is one כשאר מיוחסים בישראל. Thus, we would assume that the child is a Cohen. The exception might be in earlier times when Kohanim invented for their own pride higher standards for marriage. Most Jewish marriages give a woman two hundred zuz, but some Kohanim insisted on four hundred zuz. If, for some reason, the family didn’t want Israelites or Levites but only Cohanim, although this has nothing to do with halacha, the non-Kohen may not be welcomed, but not because she is Pilegesh, but because of the invention of higher standards which is a privilege of the priesthood, Kehuna at least in earlier times when people did these things. I don’t know if there are people today who do these things, I just don’t know.



4) Would a man be allowed to marry more than one wife with a pelegesh marriage?

Answer: It would seem from the Gaon Rav Yaacov Emnden at the end of his teshuva on Pilegesh II:15 that a Talmid Chochom had no children from his wife and therefore got permission to marry a Pilegesh to have a child, and this Rav Yaacov Emden praises and says that Pilegesh can save people from problems such as that. But that was an urgent problem and he doesn’t say that people can just go around marrying two or ten ladies with Pilegesh. Also, I personally would have nothing to do with people who marry with Pilegesh and then marry with such marriages, because it will destroy respect for Pilegesh. Right now there is a very strong push against Pilegesh, and to do these things just makes it worse. I tell people that Pilegesh is better than mamzerim, and that many rabbis permit forced marriages or no marriages for a woman with Kiddushin who wants to leave her husband even if that makes mamzerim. But these same “rabbis” may be against Pilegesh! And some people accept what I say because they know it is true. But if we start with these leniencies, I don’t know if people will tolerate it and it could bring Pilegesh crashing down chas vishalom, and then the mamzerim…


5) Would a women who married by pelegesh marriage and "divorced" be allowed to marry a kohen?

Answer: Rav Yaacov Emden quoted above says that a child from a Pilegesh marriage is כשרים כשאר מיוחסים בישראל. If so, I see no reason to forbid a Pilegesh woman from a Kohen. There were times when Kohanim made up higher standards for themselves than others, but I don’t know if today they do these things. Thus, such a question really belongs to the Kohen. Is he from such a group or family of Kohanim that feels denigrated by taking somebody who is not a Kohen or other such higher standards, and maybe, in that grouping, is a negation of Pilegesh. But if the Kohen himself has no such custom in his family, and the Yaavetz says as mentioned before that the child she will have from Pilegesh are like the מיוחסים בישראל I don’t see why there should be a problem. But again, this depends on whether the Cohanim themselves will accept this, and the one to ask is the husband she wants to marry, or perhaps a Rov who deals with Kohanim.


6  Why would there be a problem about a lady going to a regular mikvah? Who has to know if it is a marriage by kiddushin or by pelegesh marriage?

Answer: This is an area where the people who run the Mikva can make the rules. We had before about a Pilegesh marrying a Kohen. I said that some families of Kohanim have higher standards than the Shulchan Aruch about who they marry. The same is true about people who control the Mikva. They make up rules appropriate for their understanding. I was in Israel once talking to a Gadol HaDor and the Mikva lady came over and said that somebody wants to  use the Mikva, and it was a person that had a problem. The Rov thought a moment and then said let her enter. Yes, it is a mitsvah to go to the Mikva, but on the other hand, there may be, from the people running the Mikva, standards they feel are appropriate.
This is why it is important for people marrying with Pilegesh to work with a local Rov who will point out to them areas that could be a problem. A Mikva is one of these areas. Not because there is any kind of sin for a Pilegesh lady to go to the Mikva. This is clearly taught in the Shulchan Aruch beginning of laws of Kiddushin. If the Pilegesh goes to the Mikva, of course, they should do that. But the smart way is to have their supporting rabbi talk to those in charge of the Mikva so there won’t be problems. The case I mentioned above about a Gadol HaDor who was approached by the Mikva lady was also a case, as I recall, that the Rov was not satisfied that she had received the full education of something, but not to go to a Mikva, if so, that will be much worse. Of course, the proper thing is to make sure that such a lady gets the right teaching and training, like all Jewish ladies, and that should be the job of the Mikva people. Just to refuse somebody to enter a Mikva is not proper, because if somebody doesn’t know where to go to get lessons on Mikva, why not get somebody to teach them instead of expelling them?






7) Would this solve problems if a husband dies but it can't be proven, or he disappears, that the wife could somehow get remarried?

Answer: Yes, the wife could just declare that she breaks the marriage and what happened with the husband will in no way negate that. She is free to remarry.


8) Would this mean that the wife’s earning in a pelegesh marriage belongs to her?

Answer: A Pilegesh marriage is about two married people who have to work things out. Pilegesh does not have a Kesubo as Kiddushin does. It is a marriage, but that marriage is best organized in all of its aspects between the husband and wife. I spoke to a lady who married with Pilegesh and every year she sits with her husband and makes up a list of what to do that year with this or that. She has a wonderful marriage and has been blessed with fine children. But every year they sit down and discuss about next year and their goals.


Thank you very much for your really excellent questions. First of all, when somebody wants to know what the halacha is in a specific case, there are two kinds. One is a case, such as is a food kosher, or what we may do on Shabbos, which is something taught in many books easily available, and is well known to the various rabbis who work in these areas regularly. Then there is a question about Pilegesh. Who today is involved in these questions? There are here or there somebody married as a Pilegesh, but I don’t know how many rabbis are experts in the halacha of Pilegesh.

Second of all, when I suggest somebody marrying with Pilegesh, it is mainly because I have a terrible fear of Kiddushin. For most women, when the marriage sours, they will find a “rabbi” who will tell them to force a GET from their husband, and some of them, all over the world now, just tell a woman to leave with no GET! Children born from an invalid GET or surely from no GET are mamzerim. Thus, when I trumpet how important Pilegesh is, it is because most women today cannot be trusted to spend their whole lives with a husband they don’t like. People like that should not marry with Kiddushin in the first place. For them Pilegesh is preferable. Whenever she wants, she just leaves. And the gemora in Sanhedrin 21A, quoted by the Vilna Gaon in the beginning of the Laws of Kiddushin in Shulchan Aruch, clearly states that people may marry a Pilegesh without making Kiddushin.

Thus, I would not necessarily tell a woman who is positive she can maintain her life with a bad husband forever, with never violating the Torah and making an invalid GET or no GET, to marry not with Kiddushin but with Pilegesh. Having said that, another side of me says that today things are bad, and in ten years, they will be much worse, and in twenty years, very, very bad. That is what is happening today. If so, I would really be happy if no woman marries with Kiddushin, because who knows?

We have two major poskim who strongly suggest marrying with Pilegesh. One is the Ramban and the other is Reb Yaacov Emden, son of the Chacham Tsvi. The Ramban states clearly that Pilegesh is permitted, period. He even claims that the Rambam agreed with him if the Pilegesh marries as husband and wife, not zenuce chas vishalom.  The other person is Reb Yaacov Emden, who is very strong about encouraging Pilegesh, but for different reasons. He maintains that many people need the freedom to marry a Pilegesh, for various reasons. His approach is that Pilegesh can save many people from many terrible sins and problems.

My great fear today of women stuck in marriages done with Kiddushin is rooted in the reality that today major rabbis, the biggest names, are encouraging many women to remarry without a kosher GET and thus have children who are mamzerim. The count of mamzerim is going to rise more and more and the only hope is Pilegesh. Pilegesh is the only way to solve the problem of making mamzerim with invalid Gittin. Unless the husband dies