Peninei Halakha

08. Permission Not to Divorce

The Sages’ obligation for a man to divorce his wife after ten childless years can be very painful. Some men, including Torah scholars, despite their desire to fulfill the mitzva of procreation, found it very difficult to divorce their beloved wives, with whom they had entered into an eternal covenant. They sought ways to permit their marriages to continue. Indeed, there are several grounds that sometimes permit this.

The most straightforward grounds for permission are when the husband believes himself to be the cause of their childlessness, or that there is at least a reasonable chance that he is the cause – for example, if he is sickly, or if an accident may have rendered him infertile. Even in these cases, if his wife wants a divorce in order to have a child, he is required to divorce her.

When it is impossible to claim that the husband is infertile, other justifications are sometimes sought. Some assert that since halakha does not require a person to spend more than a fifth of his assets on the fulfillment of a positive commandment (Rema 656:1), if the ketuba payment is more than this he is not obligated to divorce her (see Bigdei Kehuna, EH §1.) However, it seems that poskim do not rely on this claim. Rather, they require the husband to divorce his wife and pay her ketuba, because the mitzva of procreation is so important that one must spend more than a fifth of his assets in order to fulfill it (Avnei Nezer EH 1:1). Moreover, the cap of one-fifth may apply only when an exorbitant price is being demanded for a mitzva. If the price demanded is the accepted price of the mitzva, one is obligated to pay it (see BHL 656, s.v “afilu”). Nonetheless, perhaps one can say that the obligation to divorce is the general rule, but if someone is especially attached to his wife, to the extent that the pain of divorce seems terrible, above and beyond the norm, and worse than losing most of his assets, he is not obligated to divorce his wife.

When the amount of the ketuba payment is more than the husband can afford, some say that he cannot divorce his wife (Rashba; Pri Ḥadash). Many others maintain that since the divorce is halakhically required, if the husband is unable to pay the entire amount of the ketuba he pays as much as he can, and the beit din sets up a payment plan for the remaining amount. The divorce, however, is not delayed (Responsa Radbaz 1:458; Get Mekushar 119:18; Yaskil Avdi, vol. 2, Kuntres Aḥaron, EH §1; Yabi’a Omer, EH 7:2:10).

Outside of Eretz Yisrael, some wish to rely on the few Rishonim who maintain that even after ten years there, it is unnecessary to get divorced.[9]

In practice, in each and every case, all factors are considered, and usually, by combining two or more rationales, justification is found to keep them together.

Another claim that can be used to allow a childless couple to remain married is for the woman to refuse to accept a get. The man can then claim that Rabbeinu Gershom’s ban forbids him from divorcing her against her will. (Technically, if he insists on marrying another woman, he might be permitted to take a second wife; if he does not insist, he would simply remain married to the current wife.) However, this is be-di’avad because it is based on the wife’s refusal to uphold halakha.[10]

[9]. According to the majority of Rishonim and Aḥaronim, even outside of Eretz Yisrael a childless couple must get divorced after ten years. This is the position of Ramban; Rashba; Ritva; Yam Shel Shlomo; Bi’ur Ha-Gra, EH 1:10; Levush, EH 154:11; AHS ad loc. 24-25; and many others. According to Or Zaru’a, Raavan, and Hagahot Maimoniyot, the ten years rule does not apply at all outside of Eretz Yisrael. Some Aḥaronim are willing to use this as an additional reason to be lenient, when there are other reasons as well, including: Shev Yaakov EH 2:1; Bigdei Kehuna, EH 1; Noda Bi-Yehuda 1, EH 1.

[10]. If the husband wants to divorce his wife but she refuses to accept a get, some say that we allow him to divorce her against her will (Beit Shmuel 1:7). Others say that we allow him to take a second wife (Yaskil Avdi, EH 2:1; Yabi’a Omer, EH 7:2). Others say that he is neither permitted to divorce his wife nor to marry another woman. They are afraid that his intentions in taking a second wife would not be for the sake of heaven and the mitzva of procreation (Ha-elef Lekha Shlomo, EH §7), and he might marry a woman who cannot have children (R. Yitzḥak Elḥanan Spektor, Ein Yitzḥak, EH 2:57). Some do not permit marrying another woman even in a case with four uncertainties as to whether Rabbeinu Gershom’s rule of excommunication is applicable (R. Ḥayim Palachi, Ḥayim Sha’al 2:16). R. Goren rules this way, as do other rabbinical judges (see Piskei Din Rabbaniyim vol. 6, p. 193). In Israel, these questions are discussed and decided by a beit din, and in exceptional cases, permission to take a second wife is granted.

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Translated By:
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