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 deceased’s brother to marry his brother’s widow in order to perpetuate his brother’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 brother-in-law and the widow. In the same way as a married woman is precluded from marrying another man without a get, so too is this widow prohibited from marrying another man without chalitzah. In the absence of a get or 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 brother tell the judges that the brother does not want to enter into the yibum marriage. The widow then approaches the 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 brother’s motive in entering into the yibum marriage is purely and simply to rebuild his 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 and not the motive that counts. 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 unable to articulate to the judge the required statement that the surviving brother does not want 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 theban of Rabbeinu Gershom against divorcing one’s wife contrary to 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.
