Levirate Marriage and the Family in Ancient Judaism

Levirate Marriage and the Family

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makes the claim] after thirty days, they ask him to perform halitza.

If he acknowledges [that there has been no intercourse], even [if the

claim is made] after twelve months [of marriage], they force him to

perform halitza.^68

This mishna recognizes that sexual intercourse is an important com-
ponent of marriage. Furthermore, it is the essence of levirate marriage,
which is performed with the hope of begetting offspring. Just as there
is no point to a woman entering into a levirate union with a man who
is known to be sterile, there is no point to a levirate marriage without
sexual intercourse. Such a union also suggests that the levir’s motives
for agreeing to levirate marriage were problematic.^69 Tosefta Yevamot
: includes a version of this rule, adding that the levir is compelled to
release the yevama even if he denies her claim. If one of the partners
claims that there has not been intercourse while the other claims that
there has been, the union should be dissolved; no more credence is
given to the man’s claims than to those of the woman.
A woma n may a lso seek to avoid lev i rate ma r r iage t h roug h a vow. T he
vow in question does not mention levirate marriage, but the woman’s
renunciation of benefiting from her brother-in-law in any way, which
makes such a marriage impossible:

A woman who vows to derive no benefit from her husband’s
brother — [if she makes the vow] in her husband’s lifetime, they
force him to perform halitza.^70 [If she makes the vow] after her
husband’s death, they ask him to perform halitza. But if she
intended this {that is, to avoid levirate marriage through the vow},
even if [she made the vow] in her husband’s lifetime, they ask him
to perform halitza.^71
The Mishnah acknowledges that the vow may have been a deliberate
effort by the woman to avoid levirate marriage. The vow may have been
made during her marriage, when her husband was ill or dying, with a
v iew to avoid ing lev irate. Even so, t he Mish na h appa rent ly has no inten-
t ion of forci ng t he woma n i nto a u n ion she clea rly w ishes to avoid. W h i le
the levir may marry her (and then presumably annul her vow), there is a
willingness to counsel him against such an action.