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As I understand it, in the Sephardic world not long ago, the marriage contract would have a steep penalty clause if he took a wife beyond the first one without her permission.

And as I understand it, in the Sephardic world till today, yibum is preferred over chalitza, i.e. the best thing is to marry the widow.(Shulchan aruch Even haezer 165,1)

So suppose Hayim marries Mazal, and their contract has a penalty clause. Then Hayim's brother dies childless, so Hayim is supposed to marry his brother's widow. Mazal says she doesn't want another wife around.

Now what?

  • Isn't the answer simple? If Mazal doesn't want Hayim to marry his brother's widow (because it's written in their ketubah he can't marry someone else without her permission), shouldn't he perform chalitzah instead of yibum to stay true to his contract? – ezra Jan 14 at 15:32
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The terminology used in current Sefardi Kesuvos is ולא ישא ולא ישדך ולא יקדש שום אשה אחרת עליה כי אם ברשות בית דין הצדק.

As I have noted in the comment section "Perhaps the penalty clause excluded cases of Yibum". I would certainly imagine that Beis Din would make an exclusion for Yibum.

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    Fascinating. It's not "Without her permission", it's "without the court's permission." Where did you find that text? And to what rabbinic court was it referring? – Shalom Nov 10 '11 at 23:59
  • googled online for text of sefardi kesubah in hebrew – Gershon Gold Nov 11 '11 at 1:51
  • "ולא ישא ולא ישדך ולא יקדש שום אשה אחרת" At least two of those verbs (I'm not sure about ישדך) don't apply to yibbum so the beit din might not even have to make an exception. The clause seems to not apply to yibbum. – Daniel Jan 7 '16 at 16:08
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    This is vague and has not addressed the question of when the first wife doesn't want another wife in the house. – yosefkorn Jan 14 at 13:51
  • Can confirm many standard Sepharadi ketubot say courts permission. It's scandalous – Aaron Mar 10 at 17:36
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A similar question was first addressed by the rishonim quoted in the beis yosef in even haezer 165 -

ובספר המצות כתב שאם יש לו אשה אחרת שכופין אותו עד שיחלוץ בסמ"ק אם יש לו אחרת מנדין אותו בהדיא עד שיחלוץ -
Smag - when hes already married, we force him to do chalitza.
Smak -we excommunicate him until he does Chalitza. This is in a case where the Yevama DOES NOT want to be a second wife, and without her consent we force him to do chalitza.

If however the Yevama DOES want to marry the Yavam (in spite of the Yavam having another wife) the Shulchan aruch E.H. 1:10 paskens

רבנו גרשום החרים על הנושא על אשתו אבל ביבמה לא החרים
Since the mitzva of yibbum precedes chalitza (indeed that is his opinion E.H 165,1 as opposed to the rema) takonas rabeinu gershon (not to marry 2 wives) is overridden by the Mitzva of Yibbum to be able to marry 2 wives as long as the yevama wants. this is based on the principal that a Minhag cannot override a Mitzva.

However the Beis Smuel in E.H 165,1 Brings the Teshuva of the Rivash 302 (14th century Sefardi Rishon)

אם יש לו אשה לכולי עלמא מצות חליצה קודמת למצות יבום -
If He already has a wife everyone agrees to do Chalitza instead of Yibbum,

Though the Beis Shmuel seems to think the reason for this is because the Rivash was not sure whether the Mitzva of Yibbum is preferred or the mitzva of Chalitza is preferred. He quotes the Mahari Lebeis Levi who says only if there are other reasons e.g she doesn't want to do Yibbum, she or he are too old for each other, he doesn't have enough money to house/support the second wife only then do we force him to do chalitza on this potential 2nd wife.

In conclusion it would seem in a sefardi community that permits polygamy (probably doesn't exist anymore because polygamy is outlawed in most countries) that as long as the woman wants to do yibbum and criteria above are met, even if the existent wife protests she is stopping the husband from doing a Mitzva and therefore she giving him bad advice which he doesn't need to listen to (a bit like telling her husband not to do his tephilin so that they can earn more money through extra work time).

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