Halachot and Customs
Is a Woman Permitted to Marry Her Former Husband's Brother?
Question
Is a woman permitted to marry her former husband's brother? And is the answer the same if they were not married, but only lived together for a period of time, and now she wants to marry his brother? (In this case there are no children).
Thank you in advance!
Answer
Greetings,
1. It is forbidden by Torah law to marry the wife of one’s former brother, as it says (Leviticus 20:21), "And if a man shall take his brother’s wife, it is impurity; he has uncovered his brother’s nakedness; they shall be childless." And so it is in the Rambam (Laws of Forbidden Relations, chapter 2, halacha 1): a brother's wife is prohibited to him forever, whether from erusin, whether from marriage, whether during the lifetime of their husbands, whether after the death of their husbands, except for the wife of a brother who left no son, whether they were divorced. And so ruled the Shulchan Aruch, Even HaEzer (section 15, seif 22): a brother's wife, whether from the father or from the mother, whether from marriage or from licentious relations, is forbidden by Torah law.
2. Only in the case where the husband died without children did the Torah permit his brother to marry his wife (that is, the mitzvah of "yibbum") in order to establish a name for his brother.
According to the custom of the Sephardim, one may also perform yibbum in our time (Shulchan Aruch, Even HaEzer, section 165, seif 1. And see at length in Yabia Omer, part 6, Even HaEzer, siman 14, and part 8, Even HaEzer, siman 26), however the custom of the Ashkenazim is not to perform yibbum at all in our time and instead to do chalitzah (see Aruch HaShulchan, Even HaEzer, section 165, seif 15).
3. If she lived with that man without marriage or kiddushin, it is permitted for her to marry his brother (this is stated explicitly in Shulchan Aruch, Even HaEzer, section 15, seif 30. And what is written there in seif 22, that even from licentious relations it is forbidden - the meaning is that even a brother's wife - born as a result of licentious relations - is forbidden to him. And see also the Levush there, seif 22).
Everything stated above is in general terms; however, in every case one should turn to a rabbinic court to clarify the halacha in the specific case.
With blessings,
Hillel Meirs
