Divorce After Ten Years Childless

The Talmud explains that the mitzva “to be fruitful and multiply,” to have children, is a mitzva that was given exclusively to men.[1] Of course, women are an essential component to this mitzva and are rewarded accordingly. But for women, having children is in a similar category as the many other mitzvot that they are not truly obligated to fulfill, such as the shaking of the lulav and the blowing of the shofar. As with all such mitzvot, they are rewarded for performing them should they choose to do so. It has been suggested that the reason the Torah does not obligate women in the mitzva of having children is due to the danger and pain involved in childbirth.[2]

Since a man is obligated to have children, the Talmud encourages a man who has not had children after ten years of marriage to divorce his wife in order for him to marry someone else so that perhaps he’ll have children with her. Similarly, a wife is entitled to seek a divorce in the event that her husband is infertile and she would like to have children.[3] The reader is reminded that this chapter deals only with the halachic issues, and not the many sensitive and emotional issues that such a decision entails. Indeed, although childlessness is an incredibly painful matter, it too must be discussed.

In the Talmudic era, this halacha was meticulously observed. In fact, a man who did not divorce his wife after ten years of childlessness would be forced by the Beit Din to do so.[4]Others explain that the Beit Din didn’t literally force a man to divorce his wife for this reason, but rather, they would simply pester him to take the initiative to do so.[5] Nowadays, however, the Beit Din does not get involved in such matters.[6]

Some authorities are of the opinion that the requirement to divorce one's wife after ten years of marriage includes one who had a number of children that all died, and one’s wife is unable to have additional children. The halacha, however, is not in accordance with this view. Indeed, a man one who has just one child is not truly required to divorce his wife even though he has technically not fulfilled the mitzva of "to be fruitful and multiply."[7] One only fulfills the mitzva of "to be fruitful and multiply” after having at least one son and one daughter.[8]

It is noted, of course, that the patriarch Yitzchak and his wife Rivka were childless for twenty years before having their first child.[9] There is no mention anywhere of Yitzchak and Rivka having considered divorce due to their childlessness. This seems to contradict the teaching that the patriarchs observed the entire Torah! Some explain that Yitzchak did not divorce Rivka because he somehow knew that he was the infertile partner. As such, it would have made no sense for him to divorce Rivka in order to marry someone else.[10] So too, he knew that he was to be one of the Patriarchs of the Jewish people, and therefore, he was certain that he would eventually have children.

A number of authorities are of the opinion that the obligation to divorce one’s wife if one is childless after ten years of marriage applies only in the Land of Israel.[11] Indeed, there is a tradition that Sarah only told Avraham to marry Hagar after living in the land of Israel for ten years and not having any children.[12] Furthermore, many authorities argue that this enactment no longer applies at all nowadays. In fact, a man is permitted to knowingly marry a woman incapable of having children.[13] As such, couples who have not been able to conceive are permitted to remain married should they so desire.[14] There has even been a number of great sages in recent generations who were unable to have children and yet they nevertheless remained married to their wives.[15] There are also authorities who rule that adopting children fulfills the mitzva of procreation just like having children biologically.[16] Indeed, from the Torah’s perspective, a parent’s practical, familial, and social responsibilities for adopted children are the same as for biological ones.^[17]

There was once a case brought to the Netziv concerning a man who did not yet have any children and his wife had passed her childbearing years. The man wanted to divorce her and remarry in order to have children but his wife would not accept a get. What was he to do? The Netziv ruled that the man should indeed divorce his wife and marry someone else in order to have children. In fact, he said that if the man’s wife would not accept a get, then he should remarry by means of a heter me’ah rabbanim, a dispensation in which a man may marry a second wife, even while technically married to the first. This dispensation, of course, may only be used in the most extenuating of circumstances.[18]

Rav Moshe Shternbuch offers a number of intriguing segulot for couples who are having difficulty conceiving. Among his suggestions are that a man bathe in very cold water before having relations, ask a Kohen to mention his name before performing Birkat Kohanim, ask a mohel or sandak to pray on their behalf prior to a brit, read the pittum haketoret directly from a scroll twice a day, engage in hospitality (hachnassat orchim), pray for children when lighting Shabbat candles (as well as reciting the story of Chana at that time), fast on four separate days, and change one's name.[19]

[1] Yevamot 65b.

[2] Meshech Chochma, Bereishit 9:7.

[3] Teshuvot Chachmei Provence 1:48; Teshuvot Radbaz 3:575.

[4] Rashi, Yevamot 65b; Rambam, Hilchot Ishut 15:7.

[5] Tosfot, Yevamot 64a.

[6] Hagahot Maimoniot, Ishut 15:4, Rema, EH 154:10.

[7] Rema, EH 154:10.

[8] Yevamot 61b; EH 1:5.

[9] Bereishit 25:20,21,26.

[10] Yevamot 64a.

[11] Hagahot Maimoniot, Hilchot Ishut 15:4; Sefer Hamiddot s.v. banim.

[12] See Rashi to Bereishit 16:3.

[13] Rivash 15.

[14] Rema, EH 154:10.

[15] Teshuvot V’hanhagot 1:790.

[16] Chochmat Shlomo, EH 1:1.

[17] Rashi, Bereishit 37:10. See CM 42, regarding inheritance.

[18] Meishiv Davar 4:8.

[19] Teshuvot V'hanhagot 1:790.