MARRIAGE, PROHIBITED


A marriage is prohibited whenever there is a legal impediment to a kiddushin (see *Marriage) between the particular parties. In some cases the prohibition has the effect of rendering the marriage, if it is celebrated nevertheless, null and void ab initio; in other cases it does not invalidate the marriage, but provides a ground for having it terminated by divorce.

Prohibited and Void

This category includes (1) marriages which are גִּלּוּי עֲרָיוֹת (gillui arayot) according to pentateuchal law, i.e., punishable by *karet or death, namely: (a) marriages between parties related to one another within the prohibited degrees of kinship: i.e., the marriage between a man and his mother, daughter, sister, and certain other relatives (Lev. 18:6ff.; Kid. 67b and codes); the marriage between a man and the sister of his wife is also void during the latter's lifetime (i.e., even after divorce), as is marriage with his brother's widow (except in the case of the levirate widow) or divorced wife: such marriages are punishable by karet (Yad, Issurei Bi'ah, 2:1, 9; Sh. Ar., EH 15:22, 26; 44:6; see also *Levirate Marriage); and (b) marriage between a man and a married woman, such *adultery being punishable by death (see also *Bigamy); (2) A marriage with a non-Jewish partner (Sh. Ar., EH 44:8; see also Mixed *Marriage); (3) Other cases enumerated in Shulḥan Arukh, Even ha-Ezer 15.

Prohibited but Valid

In this category are included marriages which, although prohibited, do not constitute gillui arayot according to pentateuchal law and therefore are valid and not terminable unless by the death of either party or by divorce (Sh. Ar., EH 15:1; 18; 44:7). Since these marriages are nevertheless prohibited and remain tainted with the prohibition during their subsistence, their dissolution by divorce is generally compelled, whether or not either or both of the parties consented to, or had prior knowledge of, the true situation. Marriage prohibitions of this kind derive either from the pentateuchal law imposed and punishable as a plain prohibition only (Yad, Ishut 1:7) or from the rules laid down by the scribes, i.e., marriage prohibited, as "incest of a secondary [minor] degree," not by the Torah but only by rabbinical enactment (ibid., 1:6; Sh. Ar., loc. cit.). The following are examples of such prohibitions:

(1) A married woman who has sexual relations with anyone but her husband becomes prohibited to the latter as well, and also to her lover even after her divorce from her husband (Sotah 27b; Sh. Ar., EH 11:1; 178:17). If she has had sexual relations of her own free will, she is prohibited to her husband forever, i.e., he must never remarry her after divorce from him even if in the meantime she has not married anyone else (Sh. Ar., EH 13). If she has been raped (see *Rape), she is prohibited to her husband only if he is a priest, but, if he is an ordinary Israelite, she is permitted to him. He need not divorce her and, if he has done so, he may remarry her provided she has not married someone else in the meantime (Sh. Ar., EH 6:10, 11). Similarly, the adulteress is also prohibited for all time from marrying her lover, i.e., even after divorce from her husband or his death (Yev. 24b and Rashi ad loc.; Sh. Ar., EH 11:1). This is because her lover has destroyed her family life, inasmuch as, owing to the adultery, he has rendered her prohibited to her husband. By the same token, and, because the wife of an ordinary Israelite does not become prohibited to her husband when someone else has sexual relations with her against her own free will, some scholars are of the opinion that, although beforehand she is prohibited to such a lover in order to penalize him, if they have nevertheless married each other, he will not be compelled to divorce her (Sh. Ar., EH 11; Ba'er Heitev n. 5 and Beit Shemu'el n. 2; but cf. Rema, EH 159:3, and Ba'er Heitev n. 6; Oẓar ha-Posekim, EH 11:1, n.44).

(2) A divorcee who has remarried and her second marriage has also been terminated (by divorce or death) is therefore prohibited to her former husband, in terms of an express prohibition in pentateuchal law (Deut. 24:4).

(3) A priest is prohibited by an express prohibition in the pentateuchal law from marrying a divorcee, a zonah, or a *ḥalalah (see Lev. 21:7; Sh. Ar., EH 6:1). This prohibition is still in force (Rema, EH 3:6; PDR 5, 219, 221) despite the lack of certainty that all those known as priests are in fact the descendants of Aaron, for all of them are merely presumed to be priests (Yad, Issurei Bi'ah, 20:1). A divorced woman remains prohibited to a priest even if after her divorce she has remarried and become a widow (Ḥokhmat Shelomo, EH 6:1; Sh. Ar., EH 66:11, Isserles, Ḥelkat Meḥokek, 66, n. 41). A priest is forbidden to remarry even his own former wife (Resp. Ribash no. 348; see also *Divorce). For the purposes of the above prohibition, the term zonah is not to be interpreted in its ordinary sense – i.e., a woman who has sexual relations other than within matrimony (Yev. 61b). Here it refers to a woman who is not a Jewess by birth, such as a proselyte, and also to a woman who has cohabited with a man to whom she must not be married by virtue of a general prohibition (i.e., not one relating to the priesthood as such) e.g., if she has cohabited with a non-Jew or a *mamzer (Yev. 61a and Rashi; Sh. Ar., EH 6:8).

(4) A Jewish man or woman must not marry a mamzer (et). For details see *Mamzer.

(5) A married man is prohibited, according to the decree of Rabbenu *Gershom, to marry another woman while his marriage still subsists. If contracted, the second marriage is valid but the parties will be compelled to divorce (see *Bigamy).

(6) Marriage with a divorcee or widow is prohibited before the lapse of 90 days from the date of her acquiring her new status; in order to avoid doubt concerning the descent of her offspring; similarly, for the good of her child, it is forbidden to marry a pregnant woman or nursing mother until the child has reached the age of 24 months (Sh. Ar., EH 13:1, 11–14; for further instances of prohibited, but valid marriages see Sh. Ar., EH 15).

Legal Consequences of Prohibited Marriages

FAMILY LAW ASPECTS

So far as the parties themselves are concerned, no legal consequences at all attach to a marriage which is forbidden as עֶרְוָה (incestuous) according to pentateuchal law, and there is therefore no need for them to be divorced (Sh. Ar., EH 15:1, and Ha-Gra thereto, n. 3; Sh. Ar., EH 44:6); their children will be mamzerim. Only a marriage of a married woman to another man, although invalid, requires that the woman obtain a divorce not only from her husband but also from the paramour (see *Divorce; *Bigamy; *Agunah).

In the case of prohibited but valid marriages either party is entitled to demand a divorce, whether or not either or both parties were aware of the impediment at the time of the marriage or at any time thereafter. In case of the other party's refusal, divorce may be compelled, except in the case of a marriage contracted within 90 days of dissolution of the wife's previous marriage (Rema, EH 13:10). The need for divorce is also relaxed with reference to marriage with a pregnant woman or nursing mother (PDR 4:60). On the status of children born of such marriages, see *Yuḥasin.

CIVIL LAW ASPECTS

Since the law requires that a prohibited marriage be dissolved, there is no place for the imposition of reciprocal marital rights and duties which are designed to sustain the marriage. In principle this is the position whenever the husband has married his wife without knowing that she is prohibited to him (לֹא הִכִּיר בָּה, lo hikkir bah). However, if he has done so knowingly, there will be no justification for his release from a husband's marital duties, and these he must fulfill, with the exception of those likely to impede dissolution of the marriage. This distinction between the husband's knowledge or lack of it is drawn mainly in regard to the most important cases of prohibited but valid marriages, i.e., cases of plain prohibition (אִסּוּרֵי לָאו, issurei lav); (for the prohibitions concerning other cases of prohibited marriage, see Sh. Ar., EH 116:2ff.). Since a man who marries without knowing that his wife is prohibited to him is released from all the marital duties of a husband, the wife will not be entitled to receive her "main" or minimal *ketubbah and therefore also not to fulfillment of the ketubbah conditions since "the ketubbah conditions are as the ketubbah itself" (Ket. 54b and Rashi ad loc. S.V. tena'ei ketubbah; see also *Husband and Wife). Similarly, the wife will not be entitled to *maintenance, either during the husband's lifetime or as his *widow (Yad, Ishut 24:2; Sh. Ar., EH 116:1). In the same way, the wife too will be released from all her matrimonial duties, since these are imposed on her by law only in return for her husband's actual fulfillment of his duties toward her (see *Ketubbah; *Husband and Wife; *Dowry). The husband will, however, remain liable for her ketubbah "increment" (tosefet ketubbah), as this is not an obligation imposed on him by law but one that he has voluntarily undertaken to fulfill for as long as she is willing to remain his wife, and this the law has forbidden her to do, independently of her own will in the matter (Yad, Ishut 24:3; Taz, EH 116, n. 3).

In cases where the husband knowingly contracts a prohibited marriage, the scholars regulated that in principle he should not be released from any of the matrimonial duties imposed upon the husband by law. Hence, in these circumstances he, or his estate, will be liable to his wife or widow for her ketubbah (including the tosefet) as well as its conditions as in every regular marriage. However, since everything should be done in order to bring about the dissolution of such prohibited marriages, the scholars further ruled that the husband was exempt from maintaining his wife during his own lifetime, in order to discourage her from remaining his wife (Sh. Ar., loc. cit, and Taz n. 1). He will consequently not be entitled to her handiwork, since he is entitled to this only in return for actually maintaining her. Divergent opinions are expressed in the codes concerning the husband's usufruct of his wife's property. According to some of the posekim the husband does not have this right, since it is in return for the obligation to ransom his wife from captivity, a duty which does not hold in the case of a prohibited marriage (see *Dowry) as marital life with her is forbidden to him; therefore the husband must return the equivalent of any benefit he may have derived from this source (see, e.g., Yad, Ishut 24:4 and Maggid Mishneh ad loc.). Other posekim are of the opinion that only when the wife is taken captive must the husband make available for purposes of her ransom, the equivalent of the fruits of her property that he has enjoyed, but otherwise he will be exempt from compensating her in this regard (see, e.g., Ḥelkat Meḥokek n. 4 and Beit Shemu'el n. 2 to EH 116). Since the marital rights afforded by law to the wife in respect of her husband are conditional on the existence of corresponding legal duties of her husband toward her and, in the same way, the wife's duties to her husband do not exist independently but are in return for her enjoyment of her rights against him (Yad, Ishut 12: 1–4) – a position which depends on his knowledge or ignorance of the prohibited nature of the marriage – her knowledge or ignorance in this respect is of no legal significance.

In the State of Israel

Apart from rules of private international law, the problem of prohibited marriages is governed by Jewish law (see sects. 1, 2 of the Rabbinical Court Jurisdiction (Marriage and Divorce) Law, 5713/1953.

BIBLIOGRAPHY:

ET, 1 (19513), 206–9; 2 (1949), 20f., 65, 84f.; 6 (1954), 343–54; 12 (1967), 49–67; Elon, Mafte'ah, 5–7; B. Schereschewsky, Dinei Mishpaḥah (19672), 51f., 56–62, 203–6. See also bibliography to *Marriage.

[Ben-Zion (Benno) Schereschewsky]


Source: Encyclopaedia Judaica. © 2008 The Gale Group. All Rights Reserved.