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Yibum or Chalitzah and the Ban of Rabbeinu Gershom

Yevamot 39b

The purpose of this article is to introduce the reader to the laws of yibum and chalitzah and is not intended to be taken as a psak halacha. For a psak, please consult your posek.

Actions are often more powerful than words. Through the mitzvah of yibum, the Yizkor prayer can be translated into action.

If a man dies childless, the Torah commands the brother of the deceased to marry the deceased’s widow in order to perpetuate the deceased’s memory. This marriage is known as yibum. The Torah is so concerned that the deceased should be remembered, that in these sad circumstances it permits the otherwise forbidden union between a man and his sister-in-law.

Maintaining its sensitivity to all concerned in these circumstances, the Torah does not compel yibum. If either party to the proposed yibum marriage is unwilling, the Torah mandates a special form of divorce ceremony known as chalitzah.

Chalitzah severs the marital attachment that the death of the childless brother automatically created between the surviving brother and the widow. In the same way as a married woman is precluded from marrying another man without a get, a bill of divorce from her husband, so too is this widow prohibited from marrying another man, who is not her brother-in-law, without chalitzah. In the absence of chalitzah, the widow is trapped in the miserable position of an agunah.

The chalitzah ceremony takes place before a Jewish court of law. Both widow and surviving brother tell the judges that the brother does not want to enter into the yibum marriage. The widow then approaches the surviving brother, takes off his right shoe, spits toward his face and declares, “This is what shall be done to the man who will not build up a family for his brother.”

What is preferable today, yibum or chalitzah? This question is discussed at length in the Talmud and among the Rishonim.

According to the opinion of Abba Shaul, chalitzah is preferable to yibum. Unless the surviving brother’s motive in entering into the yibum marriage is purely and simply to rebuild his deceased brother’s family, the underlying prohibition of marrying one’s sister-in-law resurfaces. And since today most people are unable to exclude other motives, chalitzah should be performed rather than yibum.

The rabbis disagree. According to them it is the action that counts, not the motive. Accordingly, they are of the opinion that even today, yibum is preferable.

Rishonim of Sephardi origin, among them the Rambam and the Rif, agree with the rabbis that, even today, yibum is preferable to chalitzah. Rishonim of Ashkenazi origin, among them Rabbeinu Tam, Rashi and the Smag, agree with Abba Shaul that today chalitzah is preferable to yibum. Some Sephardi communities practice yibum today, whereas Ashkenazi communities follow the opinion of Abba Shaul and perform chalitzah.

Nevertheless, there are rare situations in which even the Ashkenazi poskim agree that yibum should be performed. Such situations arise where the ceremony of chalitzah, as described above, cannot be performed.

This can happen where one of the parties is mute and is unable to articulate to the judge the required statement that the surviving brother does not want to perform yibum or where the surviving brother has a crippled right leg or no right leg.

The impossible result of these circumstances is that unless yibum can be performed, the widow will remain an agunah and be unable to ever remarry. Accordingly, in these circumstances many Ashkenazi poskim permit yibum.

Since the primary purpose of yibum in these circumstances is to release the widow from the yibum attachment, some poskim permit the brother to divorce the widow, even against her will, immediately following yibum.

Yet other poskim permit the brother to enter into the yibum marriage in these circumstances even if he already has a wife and will now have two. They explain that the ban of Rabbeinu Gershom against divorcing one’s wife against her will or against living with two wives is overridden to avoid an agunah situation. Some poskim require the brother to immediately divorce the widow after yibum so as not to perpetuate the situation of living with two wives.

“Nowhere in the sphere of Jewish marriage laws is there prevalent so much ignorance and, what is worse, superstition as is the case with the laws of yibum and chalitzah,” recounted my father, Dayan Grunfeld zt”l, dayan of the London Beth Din. “And yet nowhere is the sublime conception of the Jewish family as a collective personality more apparent than in the ancient institution of the Levirate Marriage. It shows the brother-in-law as the natural protector of his late brother’s wife. Having once entered the family circle, the widow is to retain the protection, goodwill and friendship of her late husband’s family. I have often experienced how misinformed people who refused to co-operate in chalitzah and thus help their sister-in-law set up a new home have afterward gladly cooperated once they had been enlightened as to the beautiful ideas that underlie this ancient law.”

Raphael Grunfeld, a partner at the Wall Street law firm of Carter Ledyard & Milburn LLP, received semichah in Yoreh Yoreh from Mesivtha Tifereth Jerusalem of America and in Yadin Yadin from Harav Haga’on Dovid Feinstein, zt”l. This article is an extract from Raphael’s book “Ner Eyal: A Guide to Seder Nashim, Nezikin, Kodashim, Taharot and Zerai’m” available for purchase at www.amazon.com/dp/057816731X  or by e-mailing Raphael at [email protected].

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