Levirate Marriage and Halitzah

Ancient customs involving a childless widow.

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She would then spit on the ground in front of him (indicating contempt), declaring that "thus shall be done to the man who will not build up his brother's house" (Deut. 25:9). From then on, the widow was free to marry anyone she chose.

Whereas in the Torah it is clear that levirate marriage is approved and halitzah is a shameful way out, the Talmud prefers halitzah (Bek. 13a). The Rabbis believed that the brother should marry his sister-in-law only out of a sincere desire to perform the commandment and not for monetary or sensual motives. However, they realized that such lofty thoughts are difficult except for the "most elevated people."

Ashkenazi and Sephardi traditions

The two greatest medieval scholars took opposite points of view on this issue, with Maimonides favoring levirate marriage and Rashi preferring halitzah. This led to a split in the halakhah between the two traditions, with Sephardim following Maimonides and his preference for levirate marriage and Ashkenazim upholding Rashi's view that halitzah supersedes it.

This dichotomy was not permitted in the State of Israel, where the rabbinate ruled in favor of halitzah and effectively outlawed levirate marriage. If the surviving brother refuses halitzah and insists instead on a levirate marriage, a court may compel him to perform halitzah and even threaten him with imprisonment if he fails to comply. The situation is similar in the United States, where Sephardic rabbis do not permit levirate marriage and require halitzahin all cases.

More controversies

The institutions of levirate marriage and halitzah may result in the widow finding herself "in limbo." If the brother-in-law is under the age of 13 and thus not competent by reason of youth to perform either procedure, the widow is forced to wait until he reaches adulthood. If the brother-in-law is mentally incompetent to participate in halitzah under Jewish law either because he is insane or is a deaf-mute the widow becomes an agunah, a "chained woman" who is forbidden to marry anyone else.

Similarly, if the brother-in-law is known to exist but his location is unknown, or if he refuses to perform either procedure out of maliciousness or contempt for Jewish law (as with an apostate), the woman's situation is like that of an agunah whose husband has disappeared or has refused to issue her a get, respectively.

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Ronald L. Eisenberg

Ronald L. Eisenberg, a radiologist and non-practicing attorney, is the author of numerous books, including The Jewish World in Stamps.