Equality, no; family unity, yes

Although equality between men and women is a basic principle in halakha, in family-related laws, differences exist between the two * Each difference has a purpose – the unity of the family.

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Rabbi Eliezer Melamed,

מצווה. הרב מלמד
מצווה. הרב מלמד
פלאש 90

Q: Why does the Torah discriminate against women by allowing a man to marry two women, but does not allow a woman to marry two men? And why does the Torah decree the law of ‘agunah‘ on a woman, and not on a man? And why is the halakha more severe for a woman who is unfaithful to her husband, than for a man who betrayed his wife? Isn’t the value of equality between the sexes important in Jewish law?

A: The basic principle in halakha is that there is equality between the sexes, “The Torah equated woman to man concerning all the laws in the Torah” (Kiddushin 35a). However, in family law there are basic halachot that lack equality: in marital law, the man has an advantage, and in matters of livelihood and sustenance, the woman has an advantage. The guiding principle is the good of the entire family. I will now explain.

The Torah’s Attitude Concerning Marrying Two Women

Although the Torah permits a man to marry two women, it hints to us that this is a problematic and undesirable reality, for indeed, in all the stories and discussions in the Torah about polygamy, we encounter problems. This is because the multiplicity of women hurts the complete love that should prevail between husband and wife, and provokes conflicts within the family, to the point where the Torah terms the additional woman as “tzara“, or trouble.

The permission to marry a few women, however, was a necessity that cannot be condemned, for at times when making a living was difficult and arduous, and quite a few people died at an early age because of poor nutrition and disease, the fate of unmarried women was sometimes unbearable. It was not by accident that the Torah commands us to help the widow, for after her husband died, she remained without her main source of income. Therefore, a well-to-do man who was able to support a number of women was permitted to marry more than one wife, provided he could support them properly, and give pleasure to both of his wives with tremendous joy as they deserve, according to the rules of the mitzvah of ‘onah‘ (marital relations).

Nevertheless, even over two thousand years ago, marrying two women was considered improper by our Sages, and thus we find that the Tannaim and Amoraim did not marry two women, as stated in the essay of Rabbi Reuven Margaliot ztz”l (Olelot 6).

Approximately 1,000 years ago, Rabbi’s in Ashkenaz, led by Rabbeinu Gershom Meor Hagolah, decreed a man should not marry two women. Gradually, their decree was accepted in additional communities, until it is now accepted in all of Israel.

Agunah

A married woman can be released from her marriage and marry another man in one of two ways – after her husband dies, or after receiving a ‘get‘ (bill of divorce) from him (Kiddushin 2a). Without this, she is considered a married woman forbidden to all men, and if, God forbid, she gives birth to a child from another man, the child is a ‘mamzer‘ (bastard). Occasionally, unfortunate incidents occur where a man is lost and no one knows if he is alive or dead, and consequently his wife remains an ‘agunah‘ (“chained” to her marriage). In such cases, great efforts are made to find evidence concerning the lost husband’s situation, and if it is possible to prove that he is dead, his wife is released from her status of ‘agunah‘, and allowed to marry.

Another type of ‘agunah‘ is in the event of a dispute between the spouses, and the Beit Din (Jewish law court) concludes that the woman is right in demanding a divorce, but the man refuses to release her by giving her a ‘get‘. According to halakha, the court is required to beat him until he willingly gives her a ‘get‘, i.e., he explicitly says that he gives the ‘get‘ on his own accord. Otherwise, they continue beating him until the woman is released – either by the husband giving her a ‘get‘ with full consent, or by his death…

However, some poskim are doubtful about the extent to which a ‘get‘ can be imposed, and due to the weakness of the rabbinic courts, the position of these poskim raises difficulties in obtaining a ‘get‘ in the case of particularly stubborn husbands. The problem has grown nowadays because under civil law, beating a husband is illegal. Nevertheless, attempts are made to find ways to enforce the court’s decision on recalcitrant men, and they almost always succeed. As cooperation between legislators and the religious courts increases, the more difficult cases of husbands refusing to grant a ‘get‘ will diminish.

A “Chained” Man

A woman can also “chain” her husband, since as long as she does not accept the ‘get‘, he cannot marry. In practice, the number of husbands who are refused a ‘get‘ from their wives is slightly higher than the number of woman refused a ‘get‘, and even in this matter for various reasons, the courts at times delay the imposition of sanctions on women, and the time men remain “chained” is lengthened. However, the “chaining” of men is easier than that of women, because in special cases through a long process involving the consent of one hundred rabbis, they will allow him to marry. In addition, if he begets a child without divorcing his wife, the child is not a ‘mamzer‘.

Jewish Laws in which the Status of Women is Weaker

In four laws, the status of women is weaker than that of a man: 1) A married woman who has not received a ‘get‘ and subsequently conceived from another man – the child is a ‘mamzer‘, whereas a married man who slept with a unmarried woman who conceived – the child is not a ‘mamzer‘. 2) A married woman who cheats on her husband, is forbidden to her husband and to man with whom she slept (in practice, a rabbi should be consulted with in such a situation), whereas a married man who betrayed his wife is not forbidden to his wife. 3) An ‘agunah’ whose husband is lost is not permitted to marry because she is a ‘safek nisuah’ (possibly married), whereas a husband whose wife was lost and was unable to be found is permitted to marry with a special permission of Beit Din, since according to the letter of the law in a pressing situation, a man is permitted to marry two women. 4) For this reason, a woman who does not agree to receive a ‘get‘, in a pressing situation and after a long process, her husband is permitted to marry another wife without divorcing her; but when a man does not agree to give his wife a ‘get‘, as long as he is alive, his wife is not permitted to marry another man. Therefore, if a recalcitrant husband was caught before trying to flee, he would be beaten until he gave a ‘get‘.

The Differences Maintain the Family

God’s laws are beyond our reach, and therefore we can never fully understand them, but one fundamental aspect cannot be ignored: a woman always knows who her child is, for he or she is born of her womb; on the other hand, a man is liable to doubt whether his wife conceived from him or, Heaven forbid, from another man. And if he is in doubt, he will not want to work and support his wife and children, will alienate himself from them, and certainly will not want to invest in their education. By means of the strict laws against a woman who betrayed her husband, and as a result of her inability to marry without a ‘get‘, the Torah guarantees a man that his wife is faithful to him, her children are his, and he can devote his life to his wife and children without concern. It is hard to imagine that without this, a stable family can be maintained.

Furthermore, a woman is naturally more devoted to her children: she carries them in her womb for nine months, breastfeeds them, and consequently, also takes more care of them. On the other hand, a man’s natural connection to his children exists only through love, devotion, and moral responsibility towards them. By means of these laws a man becomes attached to his wife and children, and dedicates himself to their livelihood and welfare.

The situation in secular society which did away with these laws in accordance with the notion of absolute equality, proves the importance of these laws, without which the family unit falls to pieces. It can be said that halakha does not deal with equality between man and woman, but instead, shapes the most appropriate way to benefit both man, woman, children, and the entire family.

Marriage Obligations and the Ketubah

When a man gets married, he obligates himself to support his wife and to take care of all her needs, as is standard in their surroundings. In addition, he takes upon himself in the ‘ketubah‘ that if he divorces her, he will pay her at least two hundred ‘zuz‘, an amount sufficient to exist for a year. Usually, much higher amounts of money are written in the ‘ketubah‘.

The obligation of earning a living is placed on the man, because until modern times, making a living involved hard, physical work, for which man had a greater advantage. In addition, housework and childcare took several hours, for everything was done by hand including drawing water, preparing bread and food, and sewing and knitting clothes.

In exchange for the man’s obligation to take care of all of his wife’s needs, the woman is obligated to take care of all the household needs and care for the children, and that all the money she earns and the assets she brings with her from her parents’ home would be in her husband’s possession. Since this agreement is for the benefit of the woman, if a wife so desires – she can cancel it, and say to her husband: “eini nizonet ve-eini osah“, or in English, “you do not have to feed me, and I will not turn over my earnings to you”.

When a Woman is Partner in Earning a Living

In recent generations, thanks to technological advances such as the ability to get water from the tap and to buy inexpensive food and clothing, the time required for housework decreased, and in their spare time, women began to work and earn a living. With the money they earned, they could buy additional help with the housework and pay for child care, thus creating additional time they could dedicate towards work. Concurrently, the educational system for boys and girls improved, providing women the tools to integrate into many more profitable sectors of the economy. Thus, in a gradual process, women’s salaries increased, to the point where today, some of them earn more than their spouses. In such a situation, a woman must also participate in providing for her children in accordance with her income.

In spite of all the dramatic changes in women’s economic and social status, even today, man’s obligation in the ‘ketubah’ is extremely important for two reasons. First, the basic structure of most families is that the man is still more responsible for earning a living, and the woman is more responsible for taking care of the children and the home. Second, the man’s commitment is also to his children, and if a man does not commit to his wife, there is fear he will escape parental responsibility. This commitment is no less important nowadays than in the past, because modern life has harmed the stability of the family unit, to the point where a large percentage of children growing up in Western countries today grow up with their mother alone, without their father present in their lives.

This article appears in the ‘Besheva’ newspaper, and was translated from Hebrew. Other interesting, informative, and thought-provoking articles by Rabbi Melamed, including his numerous books on Jewish law and faith, can be found at:
http://en.yhb.org.il/