Monday, December 31, 2012

Rav Sternbuch:Taking care of senile ex- wife?

Teshuvos v'Hanhagos (5:316): A woman who has Alzheimer's  and her husband wants to divorce her.

Question: Regarding a woman who has Alzheimer's and the husband wants a normal married life and even though they have children - he is not able to live without a healthy wife. Therefore he was given permission to marry a second wife after he deposited a get and kesuba with beis din and guaranteed support for his first wife. However he feels pity for his first wife and wants with the agreement of his second wife to take care of his first wife when she needs it and to deal with her medical issues. Thus the question is since he has married a second wife and thus the first wife is prohibited to him - is it prohibited for him to have yichud and physical contact with her? Answer: It would seem that since it is prohibited for him to have two wife and therefore sexual relations with the first wife is prohibited it should also be prohibited for him to touch her as is explained in Shulchan Aruch (O.C. 615), It is prohibited on Yom Kippur to have sexual relations and therefore it is prohibited to touch one's wife as if she were Niddah. However a distinction can clearly be made since on Yom Kippur there is concern that he will have desire for his wife and therefore if he touches her then he might transgress and have sexual relations. However in the present case one can argue that because of his wife's condition she is not capable of sexual relations and in addition he has a healthy wife that he will be thinking about. Therefore perhaps there is no basis to be concerned about sexual relations?

 We see that Rabbi Akiva Eiger (#44) cites the Tzemach Tzedek [hakadmon #67] that it is obvious that if the first wife is cured that beis din will force him to divorce her in order that he should not have two wives. Rabbi Akiva Eiger finds this conclusion questionable and asks what is the justification for this psak since the first wife was his original wife and he married the second women with rabbinic permission. According to his words that in a case where the wife becomes senile and he then marries a second wife legally then he should be able to keep both wives. That is because Rabbeinu Gershom did not prohibit such a situation and therfore he would be permitted to have two wives.

However Otzer HaPoskim (vol 1 page 18) brings the words of the great poskim that disagree with Rabbi Akiva Eiger and insist that the husband can not have two wives and therefore he must divorce the first wife as soon as she recovers. It seems that the reason for this is that Rabbeinu Gershom made his prohibition against having two wives to avoid conflict and arguments. Thus the problem is that the second wife is likely to claim that the husband is interested only in the first wife and not her. Therefore the decree of Rabbeinu Gershom is still applicable that it is prohibited to have two wives. Consequently it seems that the cherem of Rabbeinu Gershom prohibits sexual relations  with the sick first wife but would not prohibit yichud. Concerning hugging and kissing my opinion is that it should be prohibited - not because the decree of Rabbeinu Gershom but because it is likely to cause lust. And thought about sin is worse than the sin. Therefore the husband should make an agreement with the second wife and receive her permission to visit his first wife and to deal with her needs and medical treatment when needed. However if the first wife is a Niddah it is not permitted except if there is no one else and it is not done in an affectionate manner.

However it is necesssary to clarfiy what is the basis for abrogating the cherem of Rabbeinu Gershom when his wife is sick with Alzheimer's.  Because even according to those authorities who allow what is prohibited by Rabbeinu Gershom when the wife is insane even when the husband has fulfilled the mitzvoa of having children - is because they are concerned with his sexual thoughts. That doesn't apply so much in the present case. The husband is already in his sixties and she is living quietly with him in their home. But she is senile and doesn't know what is going on. Therefore he wants to divorce her and marry another woman so that he have a healthy wife who can take care of him and he can fulfil the mitzva of sexual relations.

However I am concerned about the issue of chilul HaShem that people will say that his first wife was with him all this time and took care of him and now when she is old and sick and can not do anything for him he is throwing her  out and taking another wife.  I am also concerned that if he is permitted to take a second wife - even in these unique circumstances - it will cause a breakdown of the observance of the prohibition of Rabbeinu Gershom. Therefore the matter needs to be considered carefully by great poskim. I personally would not agree to allow him to remarry. However this needs to be throughly thought through and perhaps if he is permitted to take care of her and he does so then there wouldn't be a chilul haShem. This require further careful thought..


  1. It is interesting that Rav Akiva Eiger considers and cites the Lubavitcher Rebbe (Tzemach Tzedek) as a Posek when he is contemplating his own psak.

    1. This one is not the Lubavitcher zemach zedek, as he was younger then R' Akiva Eiger.
      It refers to the First one, who is from
      Gedoilei huachronim r' Menachem Mendel Krochmsl.zal .

    2. How do you know which Tzemach Tzedek it is? The Lubavitcher Tzemach Tzedek was almost 50 years old when Rav Akiva Eiger was niftar.

    3. The reference is to the earlier Tzemach Tzedech 1600-1661

      The teshuvos of the Lubavitcher Tzemach Tzedech (1789-1866) were published in 1872. Rabbi Akiva Eiger was nifter in 1837

      The Tzemech Tzedek hakadmon is simon 67.

      שו"ת צמח צדק (הקדמון) סימן סז

      ומסברא דהרי ר"ג מ"ה ובית דינו תקנו תחלה והחרימו שלא לישא שתי נשים וב"ד שלאחריהם תקנו שאם יראו ב"ד טעם מבורר יתירו לו מאה רבנים רק שישליש כתובתה ולמה כן אם יראו טעם מבורר למה יהא צריך להשליש אלא על כרחך היינו טעמא משום שחששו אף אם יראו טעם מבורר כגון שנשתטית דילמא היום או למחר תתרפא ותשתפה ויצטרך הוא לגרשה מצד החרם דר"ג מ"ה ושמא לא יהיה לו לפרוע כתובתה ותשאר הכתובה חוב עליו ואם כן היאך אנו ב"ד מפקיעין זכותה שתצא ממנו בגט ולא תגבה כתובתה רק תשאר עליו חוב אף על גב דהדין כן וק"ל הכי דהיכי שיכול לגרשה מן הדין אינה יכולה לעכב עליו בשביל הכתובה אלא תשאר עליו בחוב היינו דוקא היכא דיכול לגרשה מצד הדין אבל הכא אלו לא היינו מתירין לו לישא אחרת והיתה מתרפאת היתה נשארת תחתיו ועכשיו שאנו מתירין לו לישא אחרת צריך הוא לגרשה והיאך אנו מפקיעין את זכותה שתצא ממנו וכתובתה תשאר עליו בחוב לכך מצאו תקנה לזה שצריך שישליש את כתובתה וכיון דהכי הוא מה לי עיקר כתובה ומה לי תוספות שכך צריכין אנו לחוש שלא להפסיד התוספות כמו העיקר ובדוכתא טובא מצינו בתלמוד דאפילו היכא דאין לה כתובה אית לה מכל מקום תוספות ויעויין בטור א"ה סימן קי"ז הביא דינין אלו ואם כן אם חששו האחרונים על עיקר כתובה מכל שכן שחששו על התוספות לכך נראה לי כשיש לבעל צריך להשליש נגד כל כתובתה והתוס':

  2. What is the basis (with sources, please) in giving a reason why Rabbeinu Gershom instituted the cherem? [The reason given here is that Rabbeinu Gershom made it to avoid fighting between the wives.]

    Also, is it true that Rabbeinu Gershom himself had two wives? If so, why?

  3. Is there any problem for a Sephardi or Teimani to marry 2 or 3 or more wives (assuming he lives in Iran, Yemen or another country that allows it)?

    They never accepted the cherem rabbeinu gershom.

    If there is a halachic issue, what is it (with sources, please)?

    It seems many sefardim had multiple wives before moving to Israel. (Including Sefardic gedolim.)

  4. According to Shulchan Aruch and other sources, the cherem had an expiration date imposed by rabbeinu gershom himself. And the cherem has long ago expired. So why do we still keep it? And what are the sources that it was extended past rabbeinu gershoms expiration date?

    1. To get a better understanding of the Cherem please see the following post. In particular see the Otzer haPoskim volume which is linked to on that post.

  5. If an Ashkenazic Jew marries two or three wives in violation of the cherem, what penalty does beis din impose? And source, please.

    1. No Rov would be mesader Kidudshin.
      So it is basically not feasible.
      If one would be Mekadesh without a Rov, he would be ostracized and expelled from most Yiddish places.
      The same is true , even for a first wife, if some one would go to a girl and be Mekadesh without a Rov.
      See the World is not Hefker.

    2. You know who was mekadesh every marriage on your block? Not even half of them. So few people even know who was -- or even if anyone was -- mekadesh.

      And what kind of ostracism? No one can "expel" anyone else from any neighborhood.

  6. Couldn't the husband simply divorce his senile wife? Or does the cherem preclude Ashkenazic husbands from doing so?

    1. The cherem also prohibited a man from forcing his wife to accept the get. See the discussion of this in the Tzemach Tzedek E.H. 1-3

    2. And if the wife is medically incapable of indicating whether she is or isn't willing to accept the divorce, the cherem precludes him from giving it to her?

    3. she needs to accept it fully aware of what it is for it to be valid

    4. That's a halachic requirement, not just cherem. Correct? So the inability of a senile wife to be divorced is a halachic preclusion and not merely cherem.

    5. yes - the cherem has been accepted as law as is stated in Rema and many other places see Otzer HaPoskim

    6. Could a Sefardi husband divorce a senile wife? (Or divorce a normal wife against her will?)

    7. if they don't accept Rabbeinu Gershom

    8. Aren't Sefardim, by default, not subject to the cherem?

    9. they were not subject to the authority of Rabbeinu Gershom. But apparently the authority of this principle today is not from the top down but because it was accepted by the societies. There is no inherent reason why Sefardim can't accept it also

    10. So may a Jew living in Iran or Yemen marry 2 or 3 wives today?

  7. If an Ashlenazic husband divorces his wife against her will, in violation of the cherem, what recourse does she or beis din have?

    Obviously the divorce cannot be undone.

  8. What is the original source of the exact written text of Cherem Rabbeinu Gershom and where can it be found?

  9. To get a better understanding of the Cherem please see the following post. In particular see the Otzer haPoskim volume which is linked to on that post.

  10. The following is from Encyclopeida Judaica

    Ḥerem de-Rabbenu Gershom
    SUBSTANCE OF THE BAN. In the course of time and for varying
    reasons (Oẓar ha-Posekim, EH 1:61, 2), it became apparent
    that there was a need for the enactment of a general prohibition
    against polygamy, independent of the husband’s undertaking
    to this effect. Accordingly, relying on the principle
    of endeavoring to prevent matrimonial strife (which principle
    had already been well developed in talmudic law) Rabbenu
    *Gershom b. Judah and his court enacted the *takkanah
    prohibiting a man from marrying an additional wife unless
    specifically permitted to do so on special grounds by at least
    100 rabbis from three “countries” (i.e., districts; see below).
    This takkanah, known as the Ḥerem de-Rabbenu Gershom,
    also prohibited a husband from divorcing his wife against her
    will. Various versions of the takkanah exist (Oẓar ha-Posekim,
    EH 1:61, 1) and, indeed, scholars have even questioned the
    historical accuracy of ascribing its authorship to Rabbenu
    Gershom. This, however, does not in any way affect its validity.
    Since the prohibition against polygamy is derived from
    this takkanah and not from any undertaking given by the husband
    to his wife, she is not competent to agree to a waiver of
    its application, lest she be subjected to undue influence by her
    husband (Sh. Ar., EH 1:10; Oẓar ha-Posekim, EH 1:61, 5). Nevertheless,
    if the husband does enter into a further marriage it
    will be considered legally valid (Tur, EH 44; Darkhei Moshe,
    ibid., n. 1; Sh. Ar., EH 44; Beit Shemu’el 11), but as a prohibited
    marriage, and the first wife can require the court to compel the
    husband to divorce the other woman. Since the first wife cannot
    be obliged to live with a ẓarah (“rival”), she may also ask
    that the court order (but not compel) the husband to give her
    (i.e., the first wife) a divorce (Sh. Ar., EH 154; Pitḥei Teshuvah,
    5; PDR vol. 7, pp. 65–74, 201–6). The husband continues to be
    liable to maintain his wife until he complies with the court’s
    order – even though they are living apart –because as long as
    he refuses to divorce her he is preventing her from remarrying
    and thus being supported by another husband (Keneset
    ha-Gedolah, EH 1, Tur 16–17; PDR vol. 7 p.74). However, if the
    first wife and the husband agree on a divorce and this is carried
    out, he is then released from his obligation to divorce his
    second wife, although his marriage to her in the first place
    was in defiance of the prohibition (Sh. Ar., Pitḥei Teshuvah, 5;
    Oẓar ha-Posekim, EH 1:80, 1 and 2).
    Many authorities were of the opinion that the validity of the
    ḥerem was, from its inception, restricted as to both time and
    place. Thus, it is stated: “He [Rabbenu Gershom] only imposed
    the ban until the end of the fifth millennium,” i.e., until
    the year 1240 (Sh. Ar., EH 1:10); others, however, were of
    the opinion that no time limit was placed on its application.
    At any rate, even according to the first opinion the ḥerem remained
    in force after 1240, since later generations accepted
    it as a binding takkanah. Accordingly, the ḥerem, wherever
    it was accepted (see below), now has the force of law for all
    time (Resp. Rosh 43:8; Sh. Ar., EH 1:10; Arukh ha-Shulḥan,
    EH 1:23; Oẓar ha-Posekim, EH 1:76). In modern times it is
    customary, in some communities, to insert in the ketubbah a
    clause against the husband’s taking an additional wife “in accordance
    with the takkanah of Rabbenu Gershom….” However,
    the prohibition is binding on the husband, even though
    omitted from the ketubbah, as such omission is regarded as a
    “clerical error” (Keneset ha-Gedolah, EH 1, Tur 17; Arukh ha-
    Shulḥan, EH 1:23).

  11. continuation of En Judaica article

    The ḥerem did not extend to those countries where it was
    apparent that the takkanah had never been accepted (Sh. Ar.,
    EH 1:10). In a country where the acceptance of the takkanah
    is in doubt, however, its provisions must be observed (Arukh
    ha-Shulḥan, EH 1:23). In general it can be said that the ḥerem
    has been accepted as binding among Ashkenazi communities,
    but not among the Sephardi and most of the Oriental
    communities. This is apparently because in those countries
    where Ashkenazim formed the main part of the Jewish community,
    as in Europe, America, or Australia where European
    Jews migrated, polygamy was also forbidden by the dominant
    religion, Christianity, and therefore by the secular law. This
    was not the case in Oriental countries, as in Yemen, Iraq, and
    North Africa, polygamy being permitted in Islam (Arukh ha-
    Shulḥan and Oẓar ha-Posekim, loc. cit.). Thus, Maimonides,
    who was a Sephardi, makes no reference at all to the ḥerem.
    In practice, therefore, to prohibit polygamy Oriental communities
    would customarily insert an express provision in
    the ketubbah, whereby the husband was precluded from taking
    an additional wife except with the consent of his first wife
    or with the permission of the bet din. As this provision was a
    condition of the marriage, any breach thereof entitled the wife
    to demand either that her husband complied with the provision,
    i.e., by divorcing the second wife, or that she be granted
    a divorce with payment of her ketubbah (Sedei Ḥemed, Asefat
    Dinim, Ishut 2; Keneset ha-Gedolah, EH 1, Beit Yosef 13, 16;
    Oẓar ha-Posekim, ibid., 1:80, 8; PDR 7:65).
    People who move from a country where the ḥerem is
    binding to a country where it is not, or vice versa, are subject
    to the following rules: (1) the ban adheres to the individual, i.e.,
    it accompanies him from place to place and he always remains
    subject to it (Arukh ha-Shulḥan, loc. cit.; Oẓar ha-Posekim, EH
    1:75, 1; Sh. Ar., EH 1); (2) local custom is followed, so that if the
    ḥerem applies to a particular country it is binding on everyone,
    irrespective of their country of origin (Arukh ha-Shulḥan,
    ibid.; Oẓar ha-Posekim, ibid. and 1:75, 3; Keneset ha-Gedolah,
    EH, Beit Yosef, 22). Both these rules are strictly applied with
    the intent of extending the operation of the ḥerem as widely
    as possible. On the other hand, if a man legally married two
    wives in a country where this was permitted, he is not obliged
    to divorce either of them on arriving in another country where
    the ḥerem is in force, as the law is only infringed by his taking
    an additional wife and not when a man already has two
    (Arukh ha-Shulḥan, ibid.).

  12. En Judaica part III

    RELEASE FROM THE PROHIBITION. The object of prohibiting
    bigamy is to prevent a man from marrying a second
    wife as long as he is not legally entitled to dissolve his first marriage.
    Thus, in order to avoid any circumvention of the prohibition,
    the ḥerem also generally prohibits divorce against the
    will of the wife. This double prohibition may, however, result
    in the husband being unjustifiably fettered in circumstances
    where he would not otherwise be required by law to maintain
    his ties with his wife – and yet may not divorce her against
    her will. This can, therefore, be obviated by the availability
    of a hetter (“release”) from the ḥerem against bigamy, which
    is granted by the bet din in the appropriate circumstances.
    This hetter does not mean that the first wife is divorced, but
    that the husband is granted exceptional permission to contract
    an additional marriage. Naturally, such a step is only taken
    if the court, after a full investigation of the relevant facts,
    is satisfied that a release is legally justified. Thus, for example,
    a release would be granted in a case where a wife becomes
    insane. Her husband cannot, therefore, maintain normal married
    life with her, a fact which would ordinarily entitle him
    to divorce her; this he cannot do because of her legal incapacity
    to consent. However, as the first marriage must continue
    to subsist, the husband remains liable to support his wife –
    including medical costs – but he is permitted by the court to
    take an additional wife (Baḥ, EH 119; Sh. Ar., EH 1; Beit Shemu’el
    1, n. 23; 119, n.6; Ḥelkat Meḥokek, ibid., 10–12; Oẓar ha-Posekim,
    EH 1:72, 19). Should the first wife subsequently recover her
    sanity she cannot demand that her husband divorce his
    second wife, as he married her in accordance with the law.
    On the contrary, the husband would be entitled – and even
    obliged – to divorce his first wife, so as not to remain with
    two wives, and if she refuses to accept his get he would be free
    from any further marital obligations towards her, save for
    the payment of her ketubbah (Sh. Ar., EH 1; Beit Shemu’el, ibid.;
    Oẓar ha-Posekim, EH 1:72, 17–18; PDR 3:271). However, the
    hetter would be revoked if the first wife recovered her mental
    capacity before the second marriage took place (Sh. Ar.,
    EH 1, Pitḥei Teshuvah, 16, concl.; Oẓar ha-Posekim, EH 1:72,

  13. En Judaica Part IV

    On the strength of the aforementioned rule, a release
    from the ḥerem may also be obtained by a man whose wife
    refuses to accept a get from him, despite the court’s order that
    she does so, e.g., in the case of her adultery or where the marriage
    is a prohibited one (Sh. Ar., EH 1:10; Ḥelkat Meḥokek,
    ibid., 16; Oẓar ha-Posekim, EH 1:63, 7). Some authorities are of
    the opinion that in the event of the wife’s adultery the husband
    only requires a hetter from a regular court and not from 100
    rabbis, since the ḥerem was not meant for such a case (Oẓar
    ha-Posekim, EH 1:73, 2). A hetter would be justified where a
    wife who has had no children during a marriage which has
    subsisted for at least ten years – a fact which entitles the husband
    to divorce her – refuses to accept the get and thus prevents
    her husband from remarrying and fulfilling the mitzvah
    to “be fruitful and multiply.” In such a case the husband
    is obliged to take another wife to fulfill the mitzvah and so he
    would be entitled to the hetter (Sh. Ar., EH 1:10; Oẓar ha-Posekim,
    EH 1:68; Arukh ha-Shulḥan, EH 1:25).
    As has already been stated, in Oriental communities for
    a husband to take a second wife requires either his first wife’s
    consent or the court’s permission. The wife is required to give
    her consent before a regular court (not 100 rabbis) and the
    court will permit the second marriage only if satisfied, after a
    thorough investigation of the facts, that the wife has consented
    wholeheartedly, without anger or under undue influence (Oẓar
    ha-Posekim, EH 1:61, 5, subsec. 3; Sedei Ḥemed, Asefat Dinim,
    Ishut 2). Without her consent, the court will generally only
    grant a release to the husband in such cases where it would do
    so were the ḥerem to apply (Sedei Ḥemed; Oẓar ha-Posekim,
    ibid.), since it is presumed that the husband’s undertaking the
    ketubbah is given on the understanding that no circumstances
    shall exist which, if the ḥerem were to apply, would warrant
    his release from the prohibition (Sedei Ḥemed, ibid.; Oẓar ha-
    Posekim, EH 1:72, 9).

  14. Rav Sternbuch argues at the end that unlike someone whose wife is insane, this husband need not get remarried because he is in his sixties and quietly living at home with his wife. I fail to see much difference between a non-violent insane person and someone suffering from Alzheimer's.

    1. he doesn't say he doesn't need - he says that the urgency of a man in his sixties is not has high as a younger man.

      Who says there is a difference between an insane person an a senile person? they both are not functioning and neither is capable of legally accepting a Get.

    2. No, he writes that he is not sure if the leniency will apply because of the difficult to understand distinction he makes. There are plenty of sixty-year-olds who still want the physical side of married life. Living "quietly" at home doesn't quite make the grade. I find that Rav Sternbuch has a tendency to search for reasons to be machmir.

  15. several points

    1. if a man today comes from teiman, etc, with two wives, israel will allow him to have both wives in israel. but they wont allow him to take any more wives.

    unanimous agreement by all edot, all rabbanim, to not do additional weddings today. a cherem de'rabbenu gershon, of a sort.

    ( i had a partner a few years ago, who'se son in law is the son of a "second wife" to this day. the family is from afghanistan, and he came to israel / america where he has wife in each country. the wives (and children) get along very well. but i poiinted out to him that american immigration law forbids "bigamists" entry to the us; of course, no one honors that law; e.g., barry obama's father)

    2. the cherem also requires the wife's consent to a get. thus, there are a good number of cases of wives who keep their husbands as "agunim" see

    3. among sephardim, one can deliver a get to a wife against her will, but unanimous agreement among sefardic batei din to be extremely strict about it.

    in a case where the husband is ashkenaz, there will be an intersting anomaly -- she will be divorced, and he will not be divorced.

    4. there are pretty strict halachot about ex wives among ashkenazim. for example, a husband is forbidden to say kaddish for his ex wife (widowed or divorced) if he remarries. might have similar implications in this case.

    5. this apparently answers a question i had -- what if a wife allows / encourages a husband to take a second wife (among ashkenazim) (for whatever reason; having children, for example,; to prevent her divorce, if she doesnt want a divorce, and ALL parties are agreeable.)? would this be allowed (assuming proper rules about the relationship?)

    1. " 3. among sephardim, one can deliver a get to a wife against her will, but unanimous agreement among sefardic batei din to be extremely strict about it."

      How can they be strict? What would prevent a Sefardi husband from going to a Sofer to write a Get, and delivering it to his wife? He doesn't even need a Beis Din.

      "in a case where the husband is ashkenaz, there will be an intersting anomaly -- she will be divorced, and he will not be divorced."

      That isn't correct. He would in fact be divorced. If an Ashkenazi violates the cherem prohibition of forcibly divorcing his wife, the divorce is still valid.


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