ARR 406-410

CCAR RESPONSA

American Reform Responsa

133. Concubinage as an Alternative to Marriage

(1979)

QUESTION: Does Reform Judaism recognize concubinage as an alternative to formal marriage? If a man cannot or does not wish to divorce his disabled wife, may his “arrangements” with another woman be formalized? Can formal Jewish status be given to two retired individuals living together without marriage? Can these “arrangements” be formalized in a manner akin to the ancient form of concubinage? (CCAR Family Life Committee)

ANSWER: Each of the arrangements suggested by the question is clearly illegal and violates the laws of all the states within the United States and of the provinces of Canada. Therefore, no rabbi can formalize such an arrangement through a Jewish ceremony. Since the Paris Sanhedrin of 1807, we have recognized the supremacy of State in matter of marriage (See M.D. Tama, Transactions of the Parisian Sanhedrin, pp. 133ff). This has been accepted by most modern Jews. It would be helpful, however, to discuss briefly the forms of marriage and concubinage. We should understand that concubinage in Biblical times seems to have referred solely to wives in addition to the primary wife. From the Hellenistic period on, a concubine could be any wife of lower status. As is well known, Rabbinic tradition recognizes three forms of entering a full marriage. Consent was, of course, always necessary (Shulchan Aruch, Even Haezer 42.1), and all three forms were combined in the Jewish concept of marriage as developed during the Middle Ages.

The three ways of effecting a marriage cited by the Talmud are: through a document, through money, or by intercourse (Kid. 2a; Shulchan Aruch, Even Ha-ezer 25.4).

(a) The most common form featured a deed witnessed by two competent individuals and handed by the groom to the bride (Kid. 9a; Shulchan Aruch, Even Ha-ezer 32.14). This has remained the essential covenant of the modern wedding. The deed is the modern Ketuba signed by two witnesses.

(b) In addition, it was possible to effect a marriage through the transfer of an item of value (kesef) in the presence of two competent witnesses. This remains as part of the modern wedding in the form of presenting a ring with the formula “Harei at mekudeshet…” (Kid. 2a,b; Shulchan Aruch, Even Ha-ezer 27.1).

(c) Finally, marriage can be effected through intercourse (bi-a) preceded by a statement indicating the wish to take this woman as wife and with two witnesses who saw the couple leave for a private place (Kid. 9b; Shulchan Aruch, Even Ha-ezer 33.1). This last method was severely frowned upon by the Rabbis, but bedi-avad it was valid. Marriage simply through intercourse with proper intent would be akin to “common law” marriage.

There is an additional form of marriage–the concubine (Pilegesh)–which needs to be discussed. Concubines were mentioned fairly frequently in the Biblical literature, especially for kings (II Sam. 3:7, 21:8ff, 5:13; I Kings 11:3; II Chron. 11:21, etc.). These references dealt with women who possessed the status of an inferior wife. We should remember that the nature of concubinage changed radically from the Biblical period to the Greco-Roman period (Louis Epstein, “The Institution of Concubinage Among Jews,” Proceedings of the American Academy for Jewish Research, vol. 6, pp. 153ff). Epstein has pointed out that the status of the Biblical concubine was determined by the ancient Near Eastern corporate family with the head of the household (Ba-al) possibly consorting with wives at various levels ranging from his main wife to a slave girl. The legal relationship of the half-dozen subsidiary wives is no longer clear to us. According to some ancient codes, the Pilegesh was second to the main wife and had definite rights as did her children. This was also her status in ancient Israel. The custom of concubinage died out during the late Biblical period, according to Epstein, and was then reintroduced among the Hellenistic Jews of the Roman Empire into a family structure which was no longer corporate, but monogamous. Among the Romans and Greco-Roman Jews, the Pilegesh became a mistress of doubtful legal status, and in Roman law, she had no legal status. Nevertheless, concubinage became an accepted institution during this period, and was carried over into the Christian era; concubines were frequently found among the ruling and upper classes, as well as among Christian priests. This was the form of concubinage known to the Talmudand the medieval Jewish literature, and it was read back into the Biblical period.

In the Talmud, according to R. Judah, quoting Rav, the difference between a wife and a concubine was that the latter had neither Kiddushin nor Ketuba (San. 21a; Maimonides, Yad, Melachim 4.4, and commentaries to this section). However, according to the Palestinian Talmud, a concubine had Kiddushin, but no Ketuba (Yerushalmi, Ket. 5.2; 29b). The former, not the latter, definition, was generally followed by most of the authorities (Caro to Yad, Melachim 4.4; de Boton to Yad, Melachim; Radbaz, Responsa, vol. IV, #225, vol. VII, #33; Adret, Responsa, vol. IV, #314; but Rashi, Ribash, Maggid Mishneh, and others followed the latter. The two definitions may refer to two levels of concubinage, as will be discussed later, or they may reflect errors in the original Talmudic text (G. Ellinson, Nisu-in Shelo Kedat Mosheh VeYisra-el,pp. 40ff). The sources clearly indicated that we are dealing with an individual of intermediate status who did not have all the rights of a married wife, but on the other hand was not to be considered as a prostitute either.

Maimonides protested vigorously against concubinage, and sought to eliminate it by claiming that it was a right limited to royalty and not permitted to ordinary Jews (Yad, Melachim 4.4). The woman was, therefore, to be considered a prostitute (Zona), and both she and the male involved could be whipped (Yad, Ishut 1.4). Jacob b. Asher and Caro later also prohibited concubines (Tur and Shulchan Aruch, E.H. 26.1 and 2.6). This prohibition was accepted by most Jews, but not all. Concubines were permitted by many Spanish and Provencal authorities–such as Abraham ben David, Abulafia, R. Jonah, A. Nissim, R. Adret, R. Asher Meiri, etc. (Ellinson, op. cit., p. 54) although they disagreed of their precise status. Nahmanides also accepted concubines (Responsa, #284; commentary to Gen. 25:6), although he warned against the moral evil involved. Concubines were discussed in the Middle Ages among both Sefardic and Ashkenazic Jews, and were often considered outside the Cherem of R. Gershom (Tseida Laderech III, #1, 2; Adret, Responsa, vol. I, #1205, IV, #314; Rabbenu Nissim, #68; Asheri, #37.1; Meir of Padua, #19; Sh.A., Even Ha-ezer 13.7; Otsar Haposekim, Even Ha-ezer 26.3ff). Isserles permitted concubines as long as they were careful about Mikveh (Isserles to Sh.A., Even Ha-ezer 26.1). Most authorities previously cited based their prohibition and cautions on the Deuteronomic law prohibiting prostitution in Israel (Deut. 23:19ff; Lev. 19:29, 21:9).

The general mood of the Rabbinic authorities was to prohibit concubines or accept them only reluctantly. The latter position was partially the result of embarrassment about Biblical concubines. Concubinage was further restricted by the Cherem of Rabbenu Gershom (Sh.A., Even Ha-ezer 1.10; Aruch Hashulchan 1.23). This ordinance prohibited the individual from marrying an additional wife, unless special permissions were provided by one hundred rabbis from three districts. It also prohibited a husband from divorcing a wife against her will. This ordinance has continued in force for Ashkenazic Jews, but was not made universally effective among Sefardic Jews until 1950 (Schereschewsky, Dinei Mishpacha, pp. 72ff). These decrees and their legal interpretations virtually eliminated concubinage. An exception to the general prohibition of concubinage was the 18th century Jacob Emden, who favored the institution as a way of increasing the population of the Jewish community (Emden, She-elot Ya-avetsII, 16).

The status of a concubine with Kiddushin, but no Ketuba, was as follows: Regarding adultery and incest, she was considered a wife; in financial matters, her consort’s responsibility was limited, and he was obligated for neither maintenance nor ransom, but, if he became tired of her, he had to divorce her (Adret, ResponsaV, #242).

A concubine actually needed no formal divorce (Get), but some felt that for the sake of public appearance, she should have a Get. If the man with whom she lived did not wish it, or had simply disappeared, she could remarry without a Get (Shulchan Aruch, Even Haezer 26, 26.1). The children of a concubine bore no blemish and possessed all the rights of other children, i.e., inheritance, etc. (Adret, Responsa, vol. IV, #14, 315). A concubine who entered the relationship without Kiddushin or Ketuba needed no divorce when the relationship ended; in fact, a man could simply give her to his son (Asheri, #32.1; Ribash, #395). This woman was simply a mistress; she could not be charged with adultery, although she could be flogged for lewd conduct, and she had no legal or financial standing. All this would show that two forms of concubinage have existed in Jewish tradition till the beginning of the 19th century. Both of them were accepted only reluctantly (bedi-avad). The practice of concubinage was rare in northern Europe and became infrequent even in the Mediterranean basin after the 16th century. It continued to be discussed in the codes and in occasional responsa.

This discussion has clearly shown us that Judaism sought to remove the practice of concubinage, and various authorities prohibited it. Only the Biblical example made it difficult to eliminate it entirely as a recognized form of marriage. We cannot validate this form of marriage, as it violates our ideals of marriage and the laws of the states or provinces in which we live. It is contrary to the general development of Jewish law in the last eight hundred years.

Walter Jacob, Chairman

Leonard S. Kravitz

W. Gunther Plaut

Harry A. Roth

Rav A. Soloff

Bernard Zlotowitz

See also:

S.B. Freehof, “Wedding Without a License,” Contemporary Reform Responsa, pp. 98ff.

If needed, please consult Abbreviations used in CCAR Responsa.