A Levirate Marriage ~ Are Thou Thy Brother’s Keeper?

Recently, I listened to a minister discuss what is known as a Levirate Marriage, a marriage between the widow and the husband’s brother. Many Christians, especially those in the Western world, consider this a reprehensible action, but the Bible does provide specific examples, such as the tale of Tamar (in Genesis 38). We sometimes forget about the nations where a widow would no longer be valued (even by a widower) for in some countries a man will only take a virgin to wife. Levirate marriages have long been practice in societies with a “clan” structure. It is an exogamous marriage to strengthen the clan.

A Levirate marriage can prove a Godsend for those in a society where women possess no rights beyond being their husband’s chattel. The practice can provide the woman and her children a form of protection. In Deuteronomy, the very reason for marrying the brother’s widow is to have children with her on behalf of the deceased brother.

“For most of the nineteenth century [i.e., the Georgian and Victorian eras], the question of whether a man should be able to marry the sister of his deceased wife engaged the English public in protracted and heated debate. The Parliamentary debates, individually published pamphlets and periodical essays, and topical fiction that at times seemed to flood from this debate express a range of nineteenth-century English anxieties about the proper definition and practice of family life, anxieties that provoked serious reconsideration of the legal definitions and cultural meanings of sibling and marital relations. The figure that carried the full weight of these ideological struggles was the adult unmarried sister living in a married sister’s household; the specific issue upon which the English people focused was whether a man’s wife’s sister was, in law, the equivalent of his blood sister and therefore never to be his wife, or his metaphorical sister only and therefore an ‘indifferent person’ whom he could marry.” (Anne D. Wallace, “On the Deceased Wife’s Sister Controversy, 1835-1907″)

Before 1835, the church would annul the marriage of a man with the sister of his late wife if reported, but if no one reported the situation, then the marriage was legal. It  was a voidable marriage not a void one. The same was true for marriage with a late husband’s brother. Both situations, however, were made illegal in 1835. The one involving the sister was repealed in 1907. The brother one was repealed much later. Even before the law passed, the church opposed such unions, and there were quite a few people who did as well. Every year after 1835 some one proposed a law to repeal the law Gilbert and Sullivan referred to it as the “annual blister.”

Our own Collins Hemingway in his article entitled “Brotherly Love?” tells us: “An even closer—and absolutely prohibited—degree of consanguinity is that of brother and sister. Sibling marriage being an incestuous taboo the world over, one would not expect such a thing ever to enter the environs of Austenia. Yet tradition brought it to Jane’s doorstep, for the law not only forbade marriage between blood siblings but also between brothers and sisters by marriage.

“Therefore, the marriage of Jane’s brother Charles to Harriet Palmer after the death of his first wife was “voidable” because Harriet was Fanny’s sister. [Frances Palmer ​( m. 1807; died 1814)​ Harriet Palmer ​( m. 1820)].​As explained in Martha Bailey’s article in ‘The Marriage Law of Jane Austen’s World’ (Persuasions, Winter 2015), this sisterhood created a prohibition by ‘affinity’ (marriage) as strong as one by blood. The logic was: Because Fanny and Harriet were related by blood, and because husband and wife became one flesh upon consummation, then Charles would also be related to Harriet by blood. This thinking applied equally for a woman who married the brother of her dead husband.

“‘Voidable’ in Charles’ case did not necessarily mean ‘voided.’ Someone—most likely a relative seeking to grab an inheritance—would have to sue to have the marriage voided and any children declared illegitimate. Charles never had enough money for anyone to bother trying to disinherit his four children by Harriet.

“To resolve the ambiguity about people marrying the sibling of a deceased spouse, the 1835 Marriage Act validated all previous such marriages but voided any going forward. To evade this prohibition in still another Austen situation, Jane’s niece Louisa Knight went to Denmark in 1847 to marry Lord George Hill, who had been married to Louisa’s now deceased sister Cassandra. Such dodges continued until the affinity laws were removed in 1907.”

In Deuteronomy 25: 5-6, we find, “If brethren dwell together, and one of them die, and have no child, the wife of the dead shall not marry without unto a stranger; her husband’s brother shall go in unto her, and take her to him, and perform the duty of an husband’s brother unto her./And it shall be, that the firstborn which she beareth shall succeed in the name of his brother which is dead. That his name be not put out of Israel.” [There are similar cross references to the concept of a levirate marriage found in Matthew 22:24; Ruth 4:5; Leviticus 20:21; and Genesis 38:8.]

According to Ronald L. Eisenberg of My Jewish Learning, “Levirate marriage is the obligation of a surviving brother to marry the widow of his brother if he died without having sired children (Deut. 25:5-6). The corollary is that the widow must marry a brother-in-law rather than anyone outside the family. The oldest of the surviving brothers had the first obligation to perform this commandment, which also allowed him to inherit all of his dead brother’s property.

“The explicit purpose of this commandment was to have the surviving brother produce an heir to perpetuate the name of his dead brother, so that it would not ‘be blotted out of Israel.’

“The literal meaning of the Biblical text implies that the firstborn child of a levirate marriage would be named after the dead brother, to carry on his memory. However, this is true only in the spiritual sense, for there was no requirement to name the newborn son after the dead brother.

“The duty of levirate marriage was obligatory only on one who was alive at the time of the death of his childless brother; it did not apply to one born after his brother’s death. Furthermore, both brothers must have the same father. If either of these conditions was not fulfilled, the childless widow was immediately free to marry anyone she chose.”

The Hebrew Bible obliges the oldest surviving brother of a man who dies childless to marry the widow of his childless deceased brother, with the firstborn child being treated as that of the deceased brother, which renders the child the heir of the deceased brother and not the genetic father. However, if either of the parties refuses to go through with the marriage, both are required to go through a ceremony known as halizah, involving a symbolic act of renunciation of their right to perform this marriage. Jewish law (halakha) has seen a gradual decline of yibbum in favor of halizah, to the point where in most contemporary Jewish communities the former is strongly discouraged. (Wikipedia)

In my novel, I broke with this “rule” of marrying the widow of one’s brother by adding several twists to the plot. Aidan Kimbolt is the hero of this book. He is the minor son of Viscount Lexford, and he loves Susan Rhodes to distraction. However, his father sends Aidan off to war so Aidan may earn his fortune. In Aidan’s absence, his older brother marries Susan. Yet, as Fate would have it, Lord Andrew Kimbolt dies in a duel over his mistress, and Lady Susan is left with child. Viscount Lexford summons Aidan home from the war to marry Susan and secure the line of the viscountcy. [I shall not tell you more of the plot, but know that there are MANY secrets the hero must uncover in order to understand why Susan rebukes him and why she commits suicide after giving birth to a son, Aaron.]

An excellent source on this topic is the International Journal of Humanities and Social Science Vol. 4, No. 10(1); August 2014. Levirate Unions in both the Bible and African Cultures: Convergence and Divergence. The Catholic University of Eastern Africa Kisumu Campus.