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.
