Ramban and Rambam Permit Pilegesh

GOAL 5 – Marrying with Kiddushin and the Problems

I once spoke to a young woman with children whose marriage had soured, and she found herself without a husband, without a GET, and with young children who had no active father. I sent her a discussion of marriage with Kiddushin or with Pilegesh. The difference is that Kiddushin requires two kosher witnesses, the act of Kiddushin such as the husband expressing his will to marry her, he gives her a ring or some valuable, and writes her a Kesubo. Kiddushin also requires the husband to give her a GET willingly. Otherwise, the GET, if forced, is invalid, and children she has from the next husband can be mamzerim.

Pilegesh, on the other hand, is very basic and simple. A man and woman want to marry, she enters the husband’s house, he provides her basic needs, they have children, and the woman is not acquired as a woman is with Kiddushin. If the woman is acquired she cannot leave the husband without his willing permission. Today this is a crisis affecting many women who are so desperate to leave their husbands who refuse for a variety of reasons to give a willing divorce, that they find some ‘rabbi’ who tells them to force the GET, or the latest disaster, is to tell a woman a reason that her marriage with Kiddushin was invalid, and she was thus never married. I heard from a prominent rabbi in Brazil that it happened in his community, a GET with no participation of the husband, and it happened in France.

The invalid GETs are producing children from the re-marriage of the woman without a GET, who are mamzerim.

I therefore, anticipating a great influx of mamzerim, recommend that women consider marrying with Pilegesh, which is not an act of acquiring the wife, but of two people marrying willingly, who can each one of them leave the marriage with no penalty at all. Especially people who have had problems with previous marriage or who anticipate a world where married people fight a lot, it is much safer to marry with Pilegesh than with Kiddushin.

The Vilna Gaon in the beginning of the Laws of Kiddushin in the Shulchan Aruch, where Pilegesh is discussed, says that the source to permit Pilegesh is the gemora Sanhedrin 21A. There is another opinion mentioned there in the Shulchan Aruch but the Vilna Gaon tears it apart and says at the end of his lengthy denigration of that opinion, for us to look at the Beis Shmuel, who also denigrates that opinion. Thus, The Vilna Gaon, together with the Ramban, who quotes the Rambam as agreeing to Pilegesh, permit Pilegesh, of course, with the condition that she goes to the Mikva.

Let us take a look at the Ramban on Pilegesh.

The Ramban is in the volume of the Rashbo entitled MEYUCHESES, meaning, ascribed as. This means that the volume is ascribed to the Rashbo because the vast majority of the almost three hundred teshuvose are without a name, meaning that we assume they were from the Rashbo, whose name, however, does not appear. We do however find that the author of the volume was a disciple of the Ramban, which explains why, if it was from the Rashbo, he put in two teshuvose from the Ramban and the Ramban’s name is signed on both teshuvose.

On the one hand, the Ramban there clearly is in favor of Pilegesh, but he also adds, in a letter to his rebbe Rabeinu Yonah, that “And you, our rebbe, may HaShem extend your life! In your locality, caution them not to marry a Pilegesh, because if they will know the permission to marry a Pilegesh they will commit zenuse and pritsuse and marry them when they are Nidose.”

This is the problem mentioned in the Shulchan Aruch beginning of the Laws of Kiddushin, that there is an opinion that Pilegesh is forbidden because she will be embarrassed to go to the Mikva without Kiddushin. However, the Ramo there brings another opinion to permit Pilegesh if she will go to the Mikva, and the Vilna Gaon and the Beis Shmuel and the Chelkas Mechokake disagree with the passage in the Ramo that brings an opinion to forbid Pilegesh as sinful. The Vilna Gaon also brings there that the Ramban and the Rambam permit Pilegesh. The fact that the Rambam seems to disagree with this in the Laws of Melochim is answered by the Ramban that the Rambam only forbids Pilegesh for one who is not a king if the marriage was zenuse, which, in of itself, requires explanation, as we will do soon.

To sum up, the Vilna Gaon, in very long passages, clearly permits Pilegesh, and says that Rambam and Rambam also permit Pilegesh. He also devotes an extremely long passage to demolish the opinion of the Ramo in his second opinion (the first opinion permits Pilegesh), and concludes that we should also consult the Beis Shmuel, who also disagrees with that part of the Ramo who forbids Pilegesh. Thus, from the gemora and the great commentators of the Shulchan Aruch in the beginning of the Laws of Kiddushin, we see that Pilegesh is permitted, according to the Vilna Gaon and others such as Ramban, Rambam, Beis Shmuel and others.

The Ramban only added in his comments to his rebbe Rabbeinu Yona, that although he permits Pilegesh, in the city of his rebbe the people cannot be trusted with Pilegesh, because they will use the permission of Pilegesh to come to great sins including not going to the Mikva. However, for others, Ramban definitely permits Pilegesh, and that is the halacha, with the caveat that a Pilegesh should be guided by prominent rabbis who will train her in how to behave in the basic laws of the Torah, such as going to the Mikva.

Let us now quote from the Ramban on Pilegesh. “If a man wants that the woman should be his Pilegesh, that she should not be acquired by him, and not owned by him, and not forbidden to other men, and not sanctified in the slightest, he may. And also the words of the Rambam zt”l are not to forbid Pilegesh to a plain person and to permit Pilegesh only for a king [as would seem from what he says in Melochim], but this is what he says, ‘Anyone who sleeps with a woman as zenuse without Kiddushin is beaten for sleeping with a Kedaisho. And taking a woman for zenuse means that he met her and slept with her and did not dedicate her to be his wife as a Pilegesh, in other words, she was a Kedaisho (a prostitute).”

Let us study these words of the Ramban. He begins, ““If a man wants that the woman should be his Pilegesh, that she should not be acquired by him, and not owned by him, and not forbidden to other men, and not sanctified in the slightest, he may.” We see clearly here the Ramban’s distinction between a woman married with Kiddushin or one married with Pilegesh. A woman married with Kiddushin means that “she is acquired by him, and owned by him.” He has acquired her as if he has taken a piece of property. Never can she leave him unless he dies or gives her a GET willingly. If she does leave without a kosher and willing GET and has a child from another man not her husband, Rambam says in the very beginning of the Laws of Gerushin that the GET given not willingly is worthless. If so, children born from the woman to another man without a kosher Get are mamzerim. This is the situation today when so many women are getting divorced and so many ‘rabbis’ teach women to force the GET or to even leave with no GET and invent some flimsy ridiculous reason why the marriage from the first husband was invalid. We face from these women and their children a crisis of mamzerim.

Pilegesh, on the other hand, says Ramban “If a man wants that the woman should be his Pilegesh, that she should not be acquired by him, and not owned by him, and not forbidden to other men, and not sanctified in the slightest, he may.” Thus, Kiddushin creates the act of acquiring the woman as his property, and he owns her, and is forbidden to other men unless he dies or gives her willingly a kosher GET. Pilegesh is not like that, but the husband and wife can leave any time with absolutely no penalty. No GET or any similar document is required. Personally, if I was involved with a group of Pilegesh people, I would prefer that everything be done with rabbinical supervision and advice as is advised by the greatest proponent of Pilegesh, Reb Yaacov Emden, in his sefer.

Therefore, today, amid the increase in mamzerim brought about by marriages with Kiddushin, the only solution is marrying with Pilegesh. A suffering woman said to me, after hearing about Pilegesh. “If only you had told me that when I was nineteen years old.” Well, I am telling it to you now, and at least, use it for your children.

 The Ramban explains the Rambam “to permit Pilegesh to a plain person who is not a king, not just to permit Pilegesh to a king. But this is what he says, ‘Anyone who sleeps with a woman as zenuse without Kiddushin is beaten for sleeping with a Kedaisho. And taking a woman for zenuse means that he met her and slept with her and did not dedicate her to be his wife as a Pilegesh, in other words, she was a Kedaisho (a prostitute).” But if a simple Jew met a woman and they both want to marry this is permitted and she becomes his Pilegesh, and this is permitted by Rambam. But this is only permitted when they came together with true marriage, not zenuse.

Whereas the Ramban and the Vilna Gaon both say that Rambam accepted Pilegesh for plain people not just for kings, and this seems to conflict with the text we have from the Rambam in Melochim, so we will explain this later. For now, let us go step by step. First step, is to quote the exact words of the Ramban describing what Kedushin does. Again, his words are, “Anyone who sleeps with a woman as zenuse without Kiddushin is beaten for sleeping with a Kedaisho. And taking a woman for zenuse means that he met her and slept with her and did not dedicate her to be his wife as a Pilegesh, in other words, she was a Kedaisho (a prostitute).” Ramban wrote this to explain what the Rambam meant that Pilegesh is only permitted to a king if the king took her as an act of Zenuse. But the problem is: What king will take a woman who is a zona? If the woman slept with the king and then knew that she was sleeping with somebody else, would he marry her or kill her? So this is very difficult to understand.

Another question: The Rambam there in Malochim says that a simple person may not marry a Pilegesh, with the exception of an OMO HOVIRAH with YIUDE, meaning, a woman was sold by her father who was desperate for money to a man who had a son, and she was to work in the house to pay off her father’s loan. Since living in a house with men in it is dangerous for a woman, who can suffer from them, the system of YUID was established, essentially transferring the girl to the level of being married either to the son of the father of the house or the father himself. Now, why is it that a woman who is essentially sold as a servant may be a Pilegesh, but no normal man and woman may marry as Pilegesh? This is a very strong problem.

But the answer is that the Rambam in that place in Malochim is devoting his time to the powers of a king. One thing he decides, in agreement with some in the Talmud but in disagreement with others, is whether a king has the right to take a woman or a man to serve him anyway he feels he needs. Rambam permits this. If so, a king may, as Paroah did, take Sorah for his wife for her great beauty, and only gave her back because she was a prophetess who summoned an angel to smite Pharoah whenever he threatened to take her physically. When he realized that something funny was going on, because no woman could hit with with these blows time and again, he realized that Sorah was not Abraham’s sister, but his wife. He then returned Sorah to Avrohom, with the condition that she must leave Egypt. Pharoah himself escorted with the senior officers of Egpyt, Abraham and Soroh, but Pharoah also gave Sora a gift of the land of Goshen, prime real estate. It was there that the Jews lived when they eventually came to Egypt. King David also used this power to take Bas Sheva who gave birth to his son Shlomo. Women taken by the king are not married willingly, they are taken by royal power that does not consider their will at all. Once they are married to the king and have a child from him, that child will be the next king, most likely, as Shlomo was.

We now return to the Ramban and his interpretation of the Rambam about Pilegesh. Rambam says Ramban, does permit plain people man and wife to marry as Pilegesh. He only says that only kings may do this if the king takes a woman against her will. This is what the Ramban means as one who marries a woman as zenuse. It does not mean that the king marries a harlot who sleeps with a lot of men. No king would take such a woman. A king can take the loveliest woman in the country, but more than anything else, he wants a woman who will bear him a son who will be the next king. Surely he would never take a prostitute who would probably give birth to somebody from a different father. But Rambam was talking about a woman who was a decent woman, perhaps never married, or perhaps married to one man honorably who died. Such a woman when taken by the king without asking her permission is considered marrying in zenuse, meaning, without consent. A plain man is not allowed to force a woman to marry him, even if he forces her to agree the marriage is null and void, it is zenuse. But a king is different. He takes any woman he wants and that is his right. It is not with her consent, and in that sense it is zenuse, but that doesn’t mean she slept with numerous men, because no king would take such a woman to have children from her.

This explains why the Rambam makes an incredible statement. No plain person may marry with Pilegesh other than a king, and one other person, an OMO HOIVRIAH with YIUDE, a woman sold by her father to a family to work who was given the status of somebody who is not free for the husband and his son to play with but is either married to the father or to the son. But she is not married because she wanted to come and marry them. Her father sold her into the family and to protect her from the lust of the men there, YIUDE protects her by considering her married to the father or the son, even though that was done not with her decision to go there for that reason. If so, it was the same zenuse as a king who forces a woman to marry him for his royal prerogative.  But plain men and woman, according to the Ramban according to the Rambam, can marry as man and wife because both of them want to marry each other.

And the Vilna Gaon agrees with Ramban that this is the opinion of the Rambam to permit plain people who are not kings to marry with Pilegesh, only if both husband and wife want to marry.