To Marry and to
Escape It
By Rabbi Dovid E.
Eidensohn
Contents
To Marry and to Escape It is about an
Orthodox Jewish woman who marries an Orthodox Jewish man with Kiddushin and
then finds that her marriage is a mistake. She may not remarry without
receiving a GET divorce document from her husband, given willingly, or if her
husband dies.
She may leave her husband but not remarry. See footnotes about this problem and
what I recommend as a solution, namely, not to marry with Kiddushin but to
marry with Pilegesh, a marriage recognized by the Talmud in Sanhedrin 21A and
the Shulchan Aruch in the beginning of the Laws of Kiddushin.
The gemora above brings it and great
authorities permit and encourage it, such as the Ramban in his name and the
name of the Rambam as long as the couple behaves in a proper marital manner and
not zenuse[i]. Rav
Yaacov Emden son of the Chacham Tsvi is enthusiastic about it. See Shailess
Yayvetz II:15 especially at the end of the lengthy teshuva, for his
enthusiastic encouragement of Pilegesh. He also indicates that refusal to marry
with Pilegesh can result in problems.
Despite this, my main enthusiasm for
Pilegesh is because today women who want to leave their husbands are often
encouraged by certain rabbis to do things such as forcing their husbands to
give them a GET or recently to leave their husbands and remarry with no GET.
The majority of Torah authorities consider either of these invalid to the
extent that the children born from the new husband are likely mamzerim. A
mamzer who marries a Jewish woman produces more mamzerim, for all generations.
So I say better Pilegesh than mamzerim, even if there may be some quibbling
about Pilegesh. Again, the gemora in Sanhedrin 21A quoted by the Vilna Gaon
clearly states that Pilegesh is a Torah marriage. The Shulchan Aruch quoted
above mentions that some forbid Pilegesh because the woman may be ashamed to go
to the Mikva. But if she is encouraged by the husband or local rabbis to go to
the Mikva there is nothing wrong with it. And I feel that even if here and
there somebody disagrees with Pilegesh, better to do that with all who back it,
and not make mamzerim. Just ask the children who will be mamzerim.
Now I want to talk a bit about the
problems faced by married people and those who simply are not marrying.
Briefly stated, we have many people even
Orthodox Jews, who refuse to marry. We also have many people, including
Orthodox Jews, who divorce. We also have many people of various ages whose
biology give them no peace, and they end up doing serious sins. Young people
are boiling with biology. If I was their age, and not seventy-five years old, I
would probably sin also. I have spoken to rabbis who are familiar with the
situation and they tell me that entire sections of the Orthodox community have
adapted a lifestyle that is the opposite of kedusho.
There is a man well known who has worked
for years on trying to get divorced Jews to remarry. He told me he failed to
find success in that, despite great efforts. Briefly, the Torah gives us laws
of when to marry and how to marry. If parents are involved with getting their
children married, and find the proper mates before the age of twenty, and do
the necessary checking of the prospective mates, there is hope. If we are too
busy to follow the Torah, we are in trouble.
How a
husband engages in having children and how he treats his wife is taught in the
Torah and the Talmud. It is the first subject taught in the Code of Laws
(Shulchan Aruch Even Hoezer) about marriage laws. What the Code of Laws says
are direct quotes from the Talmud with references from the Torah. Therefore,
let us begin with the beginning of the Code of Laws about marriage.
We
quote the Shulchan Aruch there, “The Laws of Being Fruitful and Multiplying.
Chapter One – The Laws of Being Fruitful and Multiplying and the Sin of Being
Without a Wife: 14 paragraphs.”
Note
the two things here. First, “the Laws of Being Fruitful and Multiplying.” Two
is “the Sin of Being Without a Wife.” First we will deal with the mitsvah to be
fruitful and multiply.
“Every
man is obligated to marry a woman in order to be fruitful and multiply. And
anyone who is not active in being fruitful and multiplying is as one who poured
blood and shrinks the Image of G‑d and causes the Divine Presence Shechina to
depart from the Jews.
This
is from a gemora in Yevomose 63b. There it explains more than is explained in
the brevity of the Code of Laws. The language in the gemora is: “Tanyo, we have
learned in the name of Rabbi Eliezar: Anyone who is not involved in being
fruitful and multiplying is as one who spills blood. As it is said, ‘One who
spills the blood of a person in the person, his blood will be spilled. After
this it says, ‘And you be fruitful and multiply.’” The Maharsho in his
commentary there explains that HaShem created the first man, Adam, to come into
the world. Adam came into the world together with the souls of those who had to
be born. This birth came about by people being fruitful and multiplying. Thus,
anyone who does not practice being fruitful and multiplying has caused the body
of Adam to be missing that part of him that could have grown into a human being
and helped fill the world with people. Thus in a sense it means that a person
who does not fulfill this potential of creating human life is as one who
destroys the potential of souls that could have become human beings if a human
would have practiced being fruitful and multiply.
The
gemora there continues and says, “Rabbi Yaacov says that one who does not
practice being fruitful and multiplying it is as if he had made smaller the
image of G‑d.” That is, “because people were created in the image of G‑d” which
is followed by the passage “and you be fruitful and multiply.” Meaning, having
children assures that there will be people in the image of G‑d. The more
children coming into the world create those in the image of G‑d. And one who
does not produce these children by refusing to be fruitful and multiplying is
blamed for not creating a person in the image of G‑d.
The
gemora on page 64A says that one who does not engage in having children causes
the Schechina to depart from the world. The Schechina wants to rest upon Jewish
children, and if there are not enough Jewish children, where does the Schechina
go? To pieces of wood and the stones?
The Shulchan Aruch then quotes the Ramo,
who brings teachings for Ashkenazi Jews. We are still in chapter one paragraph
one, but first comes the teaching of Rabbi Caro a Sefardi and then the teaching
of Ramo who was an Ashkenazi.
“Rabbi Tanchum in the name of Rabbi
Chaniloy says, ‘Any man who lives without a wife lives without happiness
without blessing and without goodness. Without happiness as it is said, ‘And
you should find happiness through you and your wife.’ Without blessing as it
says, ‘to bring blessing to your house.’ Without goodness as it is said, ‘It is
not good for a man to be alone.’ In Israel they would say, ‘Without Torah and
without a wall (the wife protects her husband).’ Rovo bar Ulo says, ‘without
peace.’” The gemora then discusses the obligation of the husband to have
marital relations with his wife when appropriate, and that brings husband and
wife happiness.
The gemora we quoted before now brings
the topic of marital relations as a key to Shalom Bayis. This gemora is
connected to the previous gemora that we quoted above about a wife bringing
happiness, etc. And now we have the mitsvah upon the husband to make his wife
happy with marital intimacy.
The gemora is that above in Yevomose 62b
that discussed the need for a man to have a wife. Now the gemora expands this
to explain the obligation of the husband to make his wife happy, an expansion of the gemora
above saying that the wife made the husband happy. Now it goes in two
directions. The wife makes the husband happy and the husband makes the wife
happy. This is specifically mentioned in the gemora when the husband has
marital relations with his wife, something crucial for Shalom Bayis and the
happiness of the wife.
The gemora there begins by continuing the
previous thread of how crucial a wife is for the happiness of the man. And now
it talks about how crucial the man is to make the wife happy and to make Shalom
Bayis in the family. This is done when the man fulfills his obligation to have
intimacy with his wife on a regular basis.
The gemora brings a passage, “And you will
know that there is peace in your tent, and you will visit your home (meaning
you will have intimacy with your wife) and not sin.” This means, says the
gemora, that a husband who refrains from having marital intimacy with his wife
is a sinner.
The gemora there then expands on the
obligations of the husband to his wife and says, “He who loves his wife as he
loves himself, and who honors his wife more than himself, and he who raises his
sons and daughters to go in the path of righteousness, and he who marries off
his children just prior to the age of marriage, of him the passage says, ‘and
you will know that there is peace in your tent.’”
The honoring of the wife more than
himself is explained to pertain to spending money on the wife. Even though the
husband needs to buy something he must defer to his wife and buy for her if
there is only money for one of them to purchase. Rashi in the gemora there
explains that a woman without the clothes and other things that women need
suffers more than a man without those things, so the husband must first satisfy
his wife with spending and only afterwards should he spend on himself.
The Raishise Chochmo mentioned below in
the footnote explains, “And the husband must always honor her so she has enough
money to buy what she needs and for her to have proper clothing, even if the
husband has to spend more money on her than he can afford.” Of course, if the
husband spends more on his wife than what he can afford, it means that he will
have to make up the loss by sacrificing himself and not buying something that
he needed.
We see here that although a wife provides
a husband with the afore-mentioned gifts of happiness, etc., this comes about
because the husband sacrifices for his wife and suffers loss of buying what he
needs so that she can buy what she needs. This theme of the husband sacrificing
for his wife is based upon a passage in the Torah.
See Devorim 24:5, “When a man takes a new
wife….he will make his wife that he took rejoice.” Rashi notes that the
obligation on the husband to make his wife rejoice means that she rejoices, not
him. The same is taught in the Zohar that
emphasizes the need for the husband to make his wife rejoice not that he
rejoices. The husband must sacrifice to make his wife happy. As the Zohar says,
“This rejoicing is not for the husband to rejoice but for his wife to rejoice,
as it is written ‘and he shall make his wife rejoice.’” Here we see the husband
sacrificing to make his wife happy.
The Shulchan Aruch and commentators
suggest that a boy should marry at the age when he begins his eighteenth year
meaning when the seventeenth year has turned into the beginning of the
eighteenth year.
We must keep in mind that this is appropriate for families when the parents are
in charge of finding a mate for the boy. If a boy has parents who are not
involved with his marriage, as we sometimes find, this can be a problem.
Parents who struggle with finding the
right mate for a child sometimes just get worn out and quit. If that happens a
child may have friends who suggest a match, or a shadchon. But to marry young
is advisable mainly when parents are heavily involved. Of course, the choice
must be the choice of the child not the parents. And yet, without heavy
parental efforts in finding the right mate, there can be problems.
We find in that paragraph, “Under no
circumstances should one be over the age of twenty and not marry.” This is
surely not the custom in the Yeshiva world, as some are busy learning and don’t
want to get married at the age of twenty. Also, if somebody is looking hard for
a shidduch but didn’t find the right one, this is not so serious. But if
somebody just refuses to look for a shidduch, that is serious, unless the
person is busy learning Torah and doesn’t want to stop learning.
There is a story I heard about a young
man who was not marrying, and he spoke to his rebbe. He explained that he found
some appropriate candidates for marriage, but he thinks he could do better. The
rebbe told him, “The people you saw last year and two years ago, those are the
people you will see later on.”
I once learned in a Yeshiva where a
student was a great learner and very handsome. But for some reason he didn’t
get married. I want over to him and asked him if he knew what HEFSED MERUBO
meant. He surely knew what that meant. It means “a great loss.” That is,
sometimes a rabbi is asked a question about Jewish law, and it is possible to
want to be strict about the problem and forbid it. But if there is a great loss
by being strict a prominent rabbi might rule that we should be lenient.
I continued: Tell me, I said, you have
been involved in shidduchim a few years and no marriage. Each year that goes by
and you don’t marry, you could have married and had a child. Is that not a
great loss? Soon he was married.
A young man called up his father and
said, “Dad, mazel tov!” The father had no idea what that meant. It seems that
the father was one of those parents who just gave up the struggle to find his
child a shidduch. So he let his son float. The son waited and waited, and
finally found a shidduch on his own. He then called up his father and said
“mazel tov!” The father was surprised, and he deserved to be surprised. Yes, a
parent suffers to find the right mate for a child. But that doesn’t mean that
you just drop it. There are shadchonim. There are other people who have
contacts with the kind of people you are looking for. But just to drop your
child in the middle of getting married?
A Jewish person is supposed to be married
and is supposed to have children. The mitsvah in the Torah is PRU URVU be
fruitful and multiply.
Another mitsvah is taught in the Beis
Shmuel chapter One paragraph 1. Even somebody who already has children has
another mitsvah לערב אל תנח את ידך meaning even if you
had children in your younger years, as you get older, you still have a mitsvah
to increase with more children. This is not the mitsvah of pru urvu but it is
another mitsvah “in the older phase of your life do not refuse to have more
children.”
The world is created and designed to
produce children. This is called "לשבת יצרה“.
See the Mishneh and gemora Yevomose 61B:
“A man must not refrain from having more children unless he has children. Beis
Shamai says two male children. And Beis Hillel says a male and a female, as it
is says, ‘male and female He created them.’”
The gemora says, “We infer from this that
if he has children he can refrain from being fruitful and multiplying. But this
does not exempt him from the obligation to have a wife. This is a proof to Rav
Nachman in the name of Shmuel who said, ‘even if a man has many children it is
forbidden to be without a wife as it is said, ‘it is not good for a man to be
alone.’” See
also there the Tosfose Chad Mikamoi if two males are better than a male and a
female. The plain teaching of the Mishneh seems to say that male and female to
Beis Hillel is better than two males.
If I recall correctly there was somebody
who had a lot of boys but no girls. The question is if he had to divorce his
wife as he had not achieved a boy and a girl. I understand that the Gaon Rav
Yosef Shalom Elyashev zt”l blocked him from divorcing his wife even though he
had no female but many boys. The plain meaning of the Mishneh above is that two
children means a boy and a girl but not two boys. And this is the basic
understanding of Tosfose Chad Mikamoi. However, see Shulchan Aruch Even Hoezer
chapter one paragraph 5, “When a man has a boy and a girl he has fulfilled the
mitsvah of being fruitful and multiplying.” The Bi’are HaGola there#40 says,
“The source is a Mishneh in Yevomose 61B according to the opinion of Beis
Hillel.” It doesn’t say that two boys are also good. However, to divorce a wife
for having too many boys and no girls is also a problem because divorce isn’t
just a bandaid, it is a disaster, unless the wife is completely unable to have
children, and even then we could discuss the situation. See Ramo in Shulchan
Aruch Even Hoezer chapter one paragraph
3 that for many generations we have not kept to the custom of forcing a divorce
on a woman who cannot have children. (See also the Gro there 1:10 Lo Nohadu other
opinions.)
See Beraishis II:18, “And HaShem Elokim said,
‘It is not good that a man should be alone. I will make for him a helpmate
opposite him.” We see that a man alone is “not good.” The plain understanding
is that it is not good, not because the wife produces children, but because the
man himself needs a “helpmate opposite him.” The two of them are one. This is
born out in subsequent passages that Adam was alone and unhappy until HaShem
brought to Adam part of his body that became his wife. Then Adam rejoiced and
said, ‘And man said, ‘this time there is bone from my bones,and flesh from my
flesh. To this shall be called “woman” because this is taken from a man.’” (In
Hebrew it is understood better. ISH is man and ISHO is woman. They are similar.
They are one.)
See chapter one paragraph 13: A woman is
not commanded to be fruitful and multiply. Nonetheless, some say she should not
live alone lest people suspect her of having relations with men not her
husband. The Vilna Gaon brings there a gemora in Bovo Metsiah 71A that a woman
who lives alone and has men living in her building can sin with them when she
doesn’t expect them to publicize her sin. If so, any woman who is not married
and has men in her building can be suspected of sinning, even though the gemora
does not say this but rather says that a woman is possibly suspected when she
buys a servant who will not publicize her sinning with him. But if she does not
buy a servant it is not definite that we suspect her. However, living alone
obviously is a biological test for a woman and she may be tempted to sin.
volume III page 277b in the parsha of
Saitsai.
[i]
Ramban is in the volume of Rashbo called Meyucheses. Some of the responsum
there is signed clearly by the Ramban, including number 283 and 284. In 2843 he
deals with Pilegesh. The vast majority of the material the volume called
Meyucheses is not signed by the Ramban and is not signed at all. We must
therefore assume that the signed teshuvose are surely from the Ramban, and the
unsigned teshuvose are possibly not from the Ramban but maybe the Rashbo. The
volume is titled
שו"ת הרשב"א המיוחסות להרמב"ן.
