Showing posts with label Fear about Kiddushin being stuck with a husband and hope with Pilegesh.. Show all posts
Showing posts with label Fear about Kiddushin being stuck with a husband and hope with Pilegesh.. Show all posts

Wednesday, June 28, 2017

Problems with Kiddushin and Hope with Pilegesh

By Rabbi Dovid E. Eidensohn


Kiddushin and Pilegesh

It is known that in the life of a Torah child and family, the greatest happiness is often the marriage of a child, especially a woman, who comes to the wedding with exquisite gowns and jewelry. It is appropriate for a woman to feel special about the marriage day. The gemora and the poskim tell us that a man must love his wife as he loves himself and honor her more than himself.[1] A good marriage is about a husband constantly thinking of ways to honor his wife more than himself. The Torah tells us that a man upon marriage should “make his wife rejoice.” Rashi and the Zohar[2] note that the command is not for the husband to rejoice in marriage “with the wife” but to “make her rejoice” meaning, if it is hard for the husband to give all to make his wife happy, he is doing things properly.  But if he goes about his marriage as a partnership, and he is only willing to go so far in his kindness to his wife as she goes for him, that is wrong, and the marriage is not going in the right direction.[3]
Thus, marriage, at least the beginning of marriage, is ideally an opportunity for the wife to be the center of attention, and the husband is careful to make her happy even if it is hard for him. We have come so far talking about the beginning of the marriage, the first day or so, and of course the first year is also special, and hopefully, afterwards as well. If things go well the first day and the first year, and the husband really trains himself to please his wife, and she reciprocates his love for her, that is a winning combination. But the reality is, especially today, that marriages are not always as smooth and lovely as we wish. In fact, the topic of our discussion here is about when things go wrong, and the marriage does not work out well. We are even discussing here what happens when the wife is fed up with her husband, and yes, sometimes she wants a divorce. But according to the Torah, the man has the power to control giving the GET, or ending the marriage. If he does not give his wife a GET willingly, she is not free of him.
If she finds some rabbi who encourages her to get people to pressure the husband to give her a GET against his will, that GET is invalid. If she remarries with it, an invalid GET, and has children from the next husband, there is a problem of the children born from an invalid GET to be mamzerim. But to stay married to someone she cannot stand is also terrible. Thus, the situation with Kiddushin can begin in a lovely matter, but it can end terribly. What is a woman to do?
Let us be honest. Kiddushin is a problem for women, and it could be a problem even for men, although we are emphasizing now about the problems for women. We know that the majority of Orthodox women marry with Kiddushin, maybe nearly all of them. But what happens when the marriage sours? Rather, is there any way to avoid the crisis of a woman desperate to leave her husband when he is not interested in her leaving? One idea is for the husband to promise to divorce her at a certain time, but he could change his mind, and there is nothing she can do about it. She could refuse to marry at all, but what kind of life is that? It is even a sin to refuse to marry, because people have biological forces that cause sins in one not married. No, the truth is, that Kiddushin is a major problem, with all of its glitter and glory. Increasingly, people find the worst problems from Kiddushin.
There is, however, a solution. But like many solutions, you have to think slowly and carefully into this solution. It may be for you and it may have problems. The solution is to marry without Kiddushin that gives the man the power to control the marriage and the wife’s happiness, and to marry with something known as Pilegesh. Pilegesh is a marriage discussed in the gemora Sanhedrin 21A and the Shulchan Aruch in the beginning of the laws of Kiddushin. The Ramban enthusiastically embraces Pilegesh, and says that the Rambam also accepts it, as long as the couple marries in a serious manner, that is, not as zenuse. A couple committed to marriage, even one without Kiddushin, but as Pilegesh, are married in a kosher matter. It is not only kosher, but it saves the problems of Kiddushin, because the husband and wife, if they see the marriage as a problem, can simply end it, with no penalties at all.
I know some women who married as Pilegesh and they were happy with it. Some had big problems with Kiddushin and were advised that the next marriage should be Pilegesh, and they were very happy with Pilegesh.
And yet, there is definitely a negative feeling in marrying with Pilegesh, at least, in some people. What I say to these people is to understand that if there is a Kiddushin marriage and it fails, and the woman goes to a rabbi who violates the Torah and forces the husband to divorce her, her next children will be mamzerim. Now, can Pilegesh be worse than mamzerim? No. That usually convinces people, but not all people.
I have actually dealt with people who feel that better mamzeruth than Pilegesh. Well, the children born from the Kiddushin marriage that produces mamzerim will not agree, not after they become mamzerim. So how can anyone believe that Pilegesh is worse than mamzeruth? Again, Pilegesh marriage, assuming it is a true marriage and not zenuse, is a completely valid thing, backed by gedolei hadorose, such as Ramban and even Rambam if there is no zenuse but a real marriage. Pilegesh is discussed in the very beginning of the Laws of Kiddushin in the Shulchan Aruch. The Vilna Gaon there quotes the gemora in Sanhedrin 21A that Pilegesh is without Kiddushin and without Kesubo, but it is viable, again, as long as it is a real marriage.
I know people who had problems with Kiddushin, men and women, and who are interested in Pilegesh. But it is a new thing and few people do it today, so that itself is a problem for many people. I understand that. What I don’t understand is the people who tell me strongly that Pilegesh is worse than mamzeruth. What world do they live in? Pilegesh is not a sin and mamzeruth is a sin and the worst pain for a child and for the parents. Who can say such a thing that Pilegesh is worse than mamzeruth? But I repeat that somebody who thinks carefully, will realize that making mamzerim from your children is much worse than marrying with Pilegesh.
I also maintain that a woman who marries with Kiddushin, must realize the danger she is in. Perhaps the husband will not be what she wants, and there is no escape other than the death of the husband. Of course, she could find a “rabbi” who tells her to disobey the Torah and force the husband to divorce her. But if she does that, children born from her second marriage will be likely mamzerim.
We have thus concluded the first section of our discussion of Pilegesh. The next section will be about the laws of Pilegesh and how to arrange a Pilegesh marriage in practical terms.

Pilegesh in Halacha

 We begin with the gemora in Sanhedrin 21A quoted by the Vilna Gaon in his commentary to the beginning of the Laws of Kiddushin in Shulchan Aruch Even Hoezer. A Pilegesh has no Kiddushin and no Kesubo. What then are the laws of Pilegesh?
A major source to permit Pilegesh is from the Ramban. The Ramban is found in the volume of the Teshuvose of the Rashbo entitled “Responsa of the Rashbo that seem to be from the Ramban.” Let us explain what this means. The Rashbo has many volumes as he was one of the greatest codifiers and poskim. One of those volumes is known as Meyucheses meaning, it is included as a volume written by the Rashbo, but actually, it is from the Ramban. Let us explain this a bit. The volume called Meyucheses is classified as being from the Rashbo, but at least two teshuvose are clearly not from the Rashbo but from the Ramban. These are responsas number 283 and 284. Both of these teshuvose are clearly marked as being not from the Rashbo but from the Ramban. Many other teshuvose in this volume are not marked as being from the Ramban, and they are generally included with the other responsas of the Rashbo, although at least two of the Teshuvose ascribed to the Rashbo are definitely from the Ramban and not the Rashbo, as stated before. Again, the other of the 288 teshuvose in this volume are not clearly marked as being from the Ramban, which would seemingly indicate that they are not from the Ramban, but from somebody else, maybe the Rashbo. But the two responses that are clearly marked as being from the Ramban, these two are surely from the Ramban. Responsa 284 is about Pilegesh. Let us see what the Ramban says about Pilegesh.
It is a long teshuva but let us take a few passages that clarify exactly what Pilegesh means and what Kiddushin means. It seems that Kiddushin means that the woman the husband marries with kiddushin becomes his wife, as if he has acquired her. The Pilegesh does not have this aspect, and she is not acquired by the husband. Thus, in Kiddushin, since the wife is acquired by the husband through the Kiddushin, she may not leave him without his permission, such as when he gives her a GET or dies. Pilegesh, on the other hand, does not confer upon the husband the right to claim that the woman is acquired by him. She can therefore leave whenever she wants, as can the husband.
The second law the Ramban discusses about Kiddushin and Pilegesh is that in Kiddushin the woman who is sanctified by the Kiddushin becomes forbidden to everyone other than her husband. The Pilegesh is not forbidden to everyone other than the husband as the Kiddushin woman is forbidden. That is, if a woman is married with Kiddushin and has relations with a strange man, she is forbidden to return to her husband, and she is forbidden to be ever again with the strange man she slept with. The Ramban says that Pilegesh does not have this rule, but he does not state clearly what this means. Does it mean that she can sleep with her husband and other men? It surely doesn’t mean that, because this is not marriage but the opposite. What I understand from this is that in Kiddushin the husband acquires her which means that no man other than the husband is ever allowed to sleep with the wife of the husband who made Kiddushin to acquire her. A Pilegesh does not have this acquiring in the sense that the husband acquires her and has power over her to forbid her to be with other men. Now a Pilegesh surely is forbidden to go with men not her husband. But it is not because the husband acquires her as he acquires a Kiddushin wife. It is rather because a Pilegesh must be careful not to turn her relationship with the husband into Zenuse, or prostitution. If the wife of the Pilegesh husband goes around sleeping with other men she has violated the sanctity of marriage for Pilegesh, and Rambam would consider her a sinner because she acted with zenuse.
The third level discussed by Ramban is that Pilegesh is not Mekudesh [sanctified with Kiddushin] as is the woman who is sanctified with Kiddushin. Again, it is not clear what this means. Possibly, it means that a woman who accepts Kiddushin is somewhat sanctified by it, but Pilegesh has no sanctity similar to Kiddushin. She and he her husband must honor their marriage and not run around with zenuse, but she has no sanctity bordering on Kiddushin.  What we gain from this is that a woman with Kiddushin must deal with her elevated status of holiness not to leave the husband without his permission, etc., but the Pilegesh has no such elevated status that forces the Pilegesh to be acquired by the husband, etc., as mentioned above. Despite this, the Pilegesh woman is obligated to honor marriage with one husband, otherwise she sins with zenuse and the husband must drive her from the house as we see later.
The Ramban then says that even though the Rambam in the Laws of Kings says that Pilegesh is permitted only to a king, the Ramban says this means that if one takes a woman as zenuse without marrying her, that is forbidden for somebody who is not a king, but one who takes a Pilegesh to marry her, Rambam agrees that a Pilegesh is permitted. Possibly a king who marries a Pilegesh does not fear that she will commit zenuse, because once the king takes her as a Pilegesh and surely if he has relations with her, nobody will go near here for zenuse, nor will anyone violate her marriage with the king out of fear of the king.
Another major backer of Pilegesh is Rav Yaacov Emden, son of the Chacham Tsvi. See his Teshuva sefer Shaalas Yayvetz II:15; at the end of the lengthy teshuvo there he writes how to do Pilegesh properly: “The husband must designate a room in his house for his wife the Pilegesh, and to warn her against ever being alone with any other man, and if he ever discovers that she sinned and was not careful, that he should immediately send her out of his house, and also he should command her to go to the Mikva regularly, and he should notify her that there is absolutely no shame in this. Also, he should clarify for her that children born from him are kosher children just like the meyuchesdika children in Jewish homes, so long as she guards her covenant and will be faithful to this man her husband, but not if she goes with other men to have zenuse with them. Because then her children are the products of zenuse. And she is a Kedaisho prostitute who deserves a punishment for every biah that she has with this man or any other man.”
We have covered basic halochose of Pilegesh. And now we come to understanding in practical terms the proper halacha applications and status of a Pilegesh marriage.

Proper Halacha Application and Status of a Pilegesh Marriage

Until now I have quoted various sources to explain why Pilegesh is permitted, and we have touched on various aspects of living as a Pilegesh. But now we want to go into a new area, so let me explain what it is.
As I mentioned above, most people marry with Kiddushin and few people marry with Pilegesh. This itself is a problem for those who marry with Pilegesh. For instance, Mr. A marries Mrs. B. as a Pilegesh. They live together for several years, and have children, but then decide to break up the marriage, which for a Pilegesh is basically simple. No GET is required. Permission of the husband is not required. Okay.
Now, let us imagine that Mrs. B. decides to leave her husband and maybe take some children elsewhere. One day somebody comes to her and asks her if she is interested in remarrying. She replies that she wants to know who the man is. So she is told who the man is. Then the shadchon asks the Pilegesh lady, “Can you show me a paper that you received a proper GET?” Mrs. B. never got a GET, because a Pilegesh doesn’t need a GET. But if she replies that she is a Pilegesh and doesn’t need a GET, people may not accept that. Very few people do become Pilegesh. So what does the Pilegesh lady do?
Another Pilegesh problem is mentioned in the section of the Shulchan Aruch that deals with Kiddushin marriage. The very beginning of that section deals with Pilegesh. One of the problems of Pilegesh is that she may be embarrassed to go to the Mikva to be cleansed of Nida. In fact, there is an opinion that forbids marrying a Pilegesh because she may be embarrassed to go to the Mikva, but consequently, if she is prepared to go to the Mikvah, which may have some embarrassment for her, she is permitted. But let us make a mental note of this, that if you are in a community with thousands of people who have Kiddushin and maybe five people have Pilegesh, some people, including the Pilegesh, may not understand or perhaps they will understand too well that they should be embarrassed! If we talk about people married with Pilegesh, we must deal with these issues. We don’t want women refusing to go to the Mikva, and we don’t want women attacked because they have no GET when they are Pilegesh who don’t need a GET.
Recall that our title of this section is Proper Halacha Application and Status of a Pilegesh Marriage. I want to present the following here: Proper Halacha Application and Status means dealing with Pilegesh people as human beings who are given some protection from similar problems that could crop up when somebody is different than most other people in any level of behavior especially in something as sensitive as marriage and having children. So what do I suggest?
One, I suggest that a couple that wants to marry as Pilegesh be trained by a rabbi who is prepared to explain all of the possible difficulties, and who is willing to work hard to find solutions to those problems.
Let us talk about the problem of going to the Mikva. Whose problem is this? It is the problem of the Rov who manages the couple who are Pilegesh. The Rov must find the proper Mikva. I know somebody who is very interested in Pilegesh and told me about a person who paid for an expert in constructing kosher Mikvas, even for ladies, and built such a Mikva. Now men use that Mikva during the day and women at night. Of course, there have to be men on duty by day and women on duty by night. But if the owner of the facility is willing to cooperate, it can be done.
Another solution is to find somewhere a place to build a Mikva, perhaps one for ladies. If the proper expert can be found, and be told that it is for ladies, who require a much more professional Mikva than the one for men, and he agrees to keep it kosher for ladies, we have achieved something. At any rate, there are always things that crop up and the Rov who helps out the Pilegesh people in his area has to be ahead of the game, but it can be done.

The Practical Rules of a Pilegesh

What do we mean by The Practical Rules of a Pilegesh? What it means to me is as follows: There are from the senior rabbis of the generations various teachings about being a Pilegesh. I personally would not want to utilize some of their ideas. I want a Pilegesh family to act like a very conservative family that will try to avoid anything that could somehow be construed as too liberal for people making a family.
Originally, I thought that a person who chooses Pilegesh must tell me that they are not confident that they could keep the laws of Kiddushin, which means essentially to give up one’s hopes for a normal marriage if the marriage sours and the husband won’t give a GET willingly. But if there is any doubt in the person if they would last a lifetime with no happiness in the marriage, then I would accept them as Pilegesh. And furthermore, if the person would tell me that if they take Kiddushin they feel they could give up their lives, but they nonetheless fear that maybe, if certain rabbis tell them to force a GET maybe they will listen and make a GET that is invalid and maybe make mamzerim, if they fear this, I would also give them Pilegesh. That is how I once thought. But today, when I see the great decline in the rabbis and how they encourage things that are plainly forbidden by the Torah, I see that encouraging Pilegesh must be done even if for somebody who won’t fear Kiddushin. Why? Because I fear it. And daily, things get worse out there with the rabbis. Very recently a prominent Rov called me from a far-off country about people in his area are marrying women without a GET. The same thing was publicized in the name of a very senior rabbi in a European country. It just keeps getting worse, HaShem Yerachem. So I feel that marrying with Pilegesh takes off a lot of fear and makes a lot of sense.
Anyone who wants to marry with Pilegesh would have to be trained in the laws of Pilegesh and how to behave properly. They must know the difficulties, such as what happens if the local Mikva doesn’t want to permit a Pilegesh to come there. I am not sure it won’t happen. At any rate, we must anticipate all of the potential problems and hopefully find solutions for them, before they marry as Pilegesh.
Ideally, if I was accepting people to become Pilegesh, I would prefer that several people, let us say me and two others who understand people, and the three of us would talk to the people involved and make sure that they are emotionally and mentally ready for Pilegesh. We would also have to find people who can do the detective work necessary to find out whatever we have to find out about the couple involved. Were they married before with Kiddushin? Did they have a kosher GET? Did they have a relationship with a Jewish person in a neighborhood where some Orthodox Jews lived and noticed this so that people may assume that this constitutes a real Kiddushin marriage? And we would want to establish classes for them in laws of Nida, kashruse, Shabbos, etc. Marrying with Pilegesh or something else doesn’t exempt a person from keeping the Torah.
Making classes and having a Mikva could run into money, and when the first few people become Pilegesh in a community it may not be practical to have to spend a lot of money. We can, however, only do what we can. And if we can find some people who realize the crucial need for Pilegesh, we may succeed. The difference between Pilegesh and Kiddushin is the difference between mamzerim and kosher Jews. Isn’t that worth something?

[1] Yevomose 62b
[2] Devorim 24:5 – Rashi, Targum Unkeluse, Zohar דברים רעז:2
[3] Rashi and the Zohar are as stated before to make the wife rejoice, not himself. Rashi notes that ViSeemach [Seemach with a chirik] ess eeshto is translated “and he will make his wife rejoice” not himself. However, if the phrase would be “and he will rejoice with his wife” it should say, “Visomach [somach with a komets] ess eeshto” meaning, he will rejoice with his wife meaning both together. The problem is that the Targum Yonoson translates, “and he will rejoice with his wife.”  The gemora in Succa 28A says that Hillel had eighty students and that the greatest student was Yonasan ben Uziel and the most minor of the students was Yochanan ben Zackai.  Yochanan mastered the Torah as mentioned there, but Yonasan was greater. When he taught Torah, a bird that flew over him was burned by the fire of his learning. See Tosfose there. Perhaps we can refer to the gemora above that one should love his wife like himself and honor her more than himself. Perhaps if we refer to one’s love for his wife it should be equal, but he honors her more than himself. Thus when referring to love it is equal as he loves her as he loves himself. But when it comes to honor, he honors her above himself. Rashi thus can be talking about honoring the wife where he honors her more than himself. But Yonasan is talking about love, that they love equally.