Does A Couple Have To Get Divorced If They Don’t Produce Children?

Dear Jew in the City,

Does a couple have to get divorced if they don’t produce children?

Sincerely,

Karen

Dear Karen,

Thanks for your question. Once again, I’m going to reiterate the distinction between halacha and halacha l’maaseh, i.e., between Jewish law and its practical application. Not everything you may see in the law codes reflects our actual practice. To give you a secular example, the second amendment says, “…the right of the people to keep and bear Arms, shall not be infringed.” If you’ve picked up a newspaper in the past 20 or 30 years, you’re probably aware that that one sentence does not by any means reflect the entirety of the matter. Similarly, just because something is written in the Talmud, or even the Shulchan Aruch, that doesn’t mean that it reflects the last word on the subject. With that in mind, let’s begin.

A man is obligated by the Torah to father children (Gen. 1:38), or at least to attempt to do so to the best of his ability. (A woman, while obviously integral to the process, is not so obligated because of the pain and risk involved.) The primary purpose of marriage is to be able to perform this mitzvah in its proper context (Shulchan Aruch EH 1:1). The question is, what happens when a marriage fails to produce the desired result? 

The Mishna in Yevamos (6:6) tells us that if a couple is married for ten years without having children, the husband may no longer refrain from fulfilling the mitzvah to be fruitful and multiply. Accordingly, he must either take a second wife (which is no longer our practice in most places), or he must divorce his wife so that he may marry someone else. She may also marry someone else, who then has ten years to attempt to have children with her. 

While women are not obligated in the mitzvah to procreate, they are certainly encouraged to do so. Accordingly, women can petition for divorce after ten childless years, if they so desire.

The ten-year period is derived from the case of Avraham and Sarah (then Avram and Sarai). Genesis 16:3 tells us, “Sarai, Avram’s wife, took her maid Hagar the Egyptian after Avram had lived ten years in the land of Canaan; she gave her to her husband Avram to be his wife.” We learn something else from this verse, which we’ll come to momentarily. (One might wonder why Yitzchak and Rivka remained married for 20 childless years. Yitzchak knew from God’s promise to his father Avraham that he was destined to have children.)

The ten years don’t include times when one of the spouses is away on a trip, ill or imprisoned (Shulchan Aruch EH 154:11). If the wife becomes pregnant and miscarries, the ten years start over (ibid., 154:12). Because Sarah gave Hagar to Avraham as a second wife after ten years of living in Canaan (what we would call Israel), some authorities rule that this law only applies in Israel; most authorities do not rule this way but making aliyah from outside Israel also resets the clock, in emulation of Sarah (see Aruch Hashulchan 154:25). Similarly, if one who lives in Israel travels to another country, his time in another land pauses the clock (ibid.).

While procreation may be the primary purpose of marriage, at least insofar as halacha is concerned, it’s certainly not the only consideration. The midrashic work Pesikta d’Rav Kahana (22:2) relates a story in which a couple were married ten years without having children. They went to Rabbi Shimon bar Yochai to arrange a divorce as per the law; the husband told his wife that she could take any precious object that she might find in his house and bring it with her back to her father’s house. That night, the wife got her husband drunk and had him carried back to her father’s house. When questioned about her actions, the woman explained that, to her, he was the most precious thing in the house. Upon hearing this, Rabbi Shimon bar Yochai permitted them to remain together. (He prayed for them and they ultimately conceived.)

There are more mitigating issues. For example, a man who knows that he is sterile is allowed to get married and there would be no reason to divorce because he wouldn’t have children with another wife anyway (Rema EH 154:10). Similarly, if the wife supports her husband in Torah study, a divorce would not be required (Pischei Teshuva EH 154:27).

We see in a number of places that one who educates another person’s child is considered that child’s parent. (See Sanhedrin 19b, cited by Rashi on Numbers 3:1.) Because of this, adopting and raising a child fulfills the obligation to have children according to many authorities, obviating any need to divorce.

In any case, while local courts might once have enforced this halacha, nowadays they stay out of it (Rema, ibid.). No matter how long a childless couple has been married, a rabbi is not going to show up at their door trying to encourage them to separate.

There have been great rabbis who did not father children and also did not divorce their wives. For example, Rabbi Menachen Mendel Schneerson, the seventh rebbe of Lubavitch, didn’t have children, but also remained married to his wife. A story is told in which the Lubavitcher Rebbe and Rebbetzin visited a couple they didn’t even know because they had heard that this couple was planning to divorce over infertility. They used themselves as a case in point to illustrate that the halacha requiring divorce does not reflect our current practice.

So, yes, you will find a law of the books that a couple must divorce after ten years childless. But there are a lot of moving parts, with the result that no, such does not reflect the law in practice and no one is going to try to enforce it today.

Sincerely,

Rabbi Jack Abramowitz, JITC Educational Correspondent

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