Kiddushin and Pilegesh

Letter to an Italian doctor about Jewish marital laws

By Rabbi Dovid E. Eidensohn

I was honored recently to receive a letter from Dr. Riccardo F. Gioviale-Catania,Italia, a Noahide believer in the Torah, regarding one of the most difficult areas of Jewish law, marital situations with Kiddushin and Pilegesh. His ideas with many sources are too complicated for most people here, as was my response to him, but I wish to state the purpose of my letter here is not to comment further on that, but to recognize that for Orthodox Jews, the issues of Kiddushin and Pilegesh are very important, not so much in earlier times, but for today, as I will explain.

Kiddushin is the normal way of Orthodox marriage. It requires the husband to give the wife a ring, or a marital document, or an act of marital relations, all of this witnessed by two witnesses who are Orthodox Jewish men.

The husband takes the wife for himself, and in the words of the Ramban, “acquires” her so that she cannot leave him without his permission, unless he dies. On the other hand, Pilegesh, which is simply that the man takes the woman, not acquiring her, but she moves into his house, and whenever either one of them desires, they can simply leave and negate the marriage with no penalty. Both these kinds of marriage are recognized in the gemora Sanhedrin 21A, as the Vilna Gaon mentions in the Shulchan Aruch Even Hoezer 26:1.

I said before that Pilegesh is important today, but not so much in earlier times. What does this mean? In earlier times, every Jewish community had senior rabbis who had great influence. People feared to refuse their opinions. But after the great loss of six million Jews in the Second World War, and the great decline in America and other countries in respect for Torah, times changed. Now very few people know the laws of marriage, although many people claim to be experts in it. I once asked one of these where the laws of not forcing a GET is taught in Shulchan Aruch, and he didn’t know. Rambam in the beginning of the Laws of Divorce says that any forced GET is worthless. The Vilna Gaon says that this is the accepted practice today, that a GET must not be forced, and all of the commentators in Shulchan Aruch 77 par 2 and 3 agree, that a GET may not be forced, which is the teaching of the Rashbo in VII:414. But today this is no longer accepted by many ‘rabbis’ who don’t know the laws of Gittin.

Today there are increasingly brazen ‘rabbis’ who go so far as to tell a married woman who can’t leave her husband who refuses to give her a GET, that she may leave without a GET! Why? Because they invented some ridiculous reason that she was never married in the first place! A few years ago, there were ‘rabbis’ who guaranteed to force a husband to give his wife a GET by torturing him with electric shocks and physical violence, and they demanded sixty thousand dollars for this. One of them is a Rosh Yeshiva in Monsey, NY, and all of them were arrested by the FBI and either jailed or fined or both.

A husband or wife who wants to end the marriage, may turn to a Beth Din. At one time that was a good idea, but today, the attitude is that going to a Beth Din is quite a risky proposition.

What then can a woman do today who wants to marry? If she does Kiddushin, and is acquired by the husband and cannot escape him unless he dies or gives her willingly a GET, should she go to the ‘rabbis’ who will tell her lies such as the forcing of a GET from the husband or to declare that she was never married in the first place? That is what is going on today in America and other countries in the world. And things are getting worse all of the time. In recent years major countries are beginning to ‘help’ women by putting husbands who won’t give a GET in jail. A prominent Torah expert said recently that all divorces done in New York State today are suspect because the government has given power to the woman to force a GET in certain cases. In Canada the government is also beginning to force divorces which, if done, means that the woman who remarries with such an invalid GET and has a child, the child is a mamzer.

Even in Israel there are problems with Kiddushin. I once spoke with a member of a prominent Israeli Beth Din who told me that when a husband doesn’t want to give his wife a GET they call in ORA, who forces the husband with public humiliation, to give a GET. My rebbe the Gaon Reb Shalom Yosef Elyashev zt”l told me that any Beth Din that does illegal things to free a woman from her marriage is not a Beth Din. Senior Israeli and American rabbis in the past generation have cautioned women never to go to a secular government’s court to settle marital matters, and never to trust even a Torah Beth Din until they clarify properly that they don’t make funny Gittin. Today very few of these great rabbis remain, and in their place are those who invent a new Torah to do what they want.

The only solution, as I see it, is not to marry with Kiddushin, but Pilegesh. There is no acquiring of the woman, there is no enslaving the wife to a man who may be impossible to live with. And she is free to leave when she wants. I spoke to a woman whose husband won’t give her a GET, and I explained about the problems of Kiddushin and the good idea of marrying with Pilegesh. She said to me, “Why didn’t I know this when I was nineteen years old?”

The great proponent of Pilegesh is the Ramban. But he himself admits that sometimes, in certain communities, Pilegesh could introduce problems. There are those who are against Pilegesh entirely. But the Shulchan Aruch in Kiddushin 26:1 has all of the major commentators of the Shulchan Aruch in favor of Pilegesh, such as the Vilna Gaon based upon the gemora in Sanhedrin 21A, who says that Rambam and Ramban permit Pilegesh. I explain elsewhere how the Rambam, who seems to say clearly in Kings 4:4 that only a king may have a Pilegesh, something that is clearly defied by passages in the Tanach. I explain how the Rambam does permit Pilegesh elsewhere on my blog torahhalacha.blogspot.com and material on google.comat eidensohnd@gmail.com. Also, the Beis Shmuel, the Chelkas Mechokake and others, to one degree or the other are not in agreement with the opinion of the authority that Pilegesh is sinful.

In earlier generations with great rabbis controlling marriage, to leave Kiddushin and going to Pilegesh was not necessarily a critical matter. But today, with the influx of mamzerim from women who flee their husbands who won’t give them a GET willingly, it is highly dangerous for anyone to marry with Kiddushin, and Pilegesh is preferred. But, as Ramban mentions, there is a danger to some degree in Pilegesh. But I feel that the danger of Pilegesh is not to make mamzerim, but the danger of Kiddushin is to make mamzerim, and that is happening today all over the world.