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..
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..








