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Kesuvos, 77

1) HALACHAH: GETTING DIVORCED AFTER TEN YEARS OF CHILDLESSNESS

OPINIONS: Rav Asi says that if a couple have not had children after being married for ten years, Beis Din does not force them to get divorced. Rav Tachlifa in the name of Shmuel argues and says that Beis Din does force them to get divorced. (See Yevamos 64a.)

What is the Halachah?

(a) RASHI (Yevamos 65b, DH Hu and DH Hi) says that Beis Din forces a man to divorce his wife. This is also the ruling of the RIF and the RAMBAM (Hilchos Ishus 15:7). They write that Beis Din forces him to divorce her, even if it means that they must use physical force, in order to have him fulfill the Mitzvah of Piryah v'Rivyah. (The ROSH (6:15-16) adds that this means that Beis Din also forces him to marry another wife; otherwise there would be no point in divorcing the first one. Similarly, he adds, Beis Din is enjoined to force, at a certain point, a bachelor who refuses to get married.)

(b) TOSFOS (Yevamos 64a, DH Yotzi) and RABEINU CHANANEL (ibid.) rule, based on the YERUSHALMI (Kesuvos 11:7), that Beis Din does not force the man to divorce his wife. Rather, Beis Din tells him that he is obligated to divorce his wife and that if he does not, it will be permitted to call him a sinner.

HALACHAH:

(a) Regarding the question *who* is enjoined to remarry after ten years:

1. The Poskim cite the YERUSHALMI which states that the Halachah of our Sugya applies not only to someone who did not have children or who had stillborns, but even to a person who had children who died and he no longer has any living children (or grandchildren). Such a person must divorce his wife if ten years pass and they do not have any more children so that he can fulfill the Mitzvah of Piryah v'Rivyah.

2. The Gemara here, and the Mishnah in Yevamos says that this applies if ten years pass "without giving birth." The RAMBAN and other Rishonim infer from here that if a man's wife bore him a single child, he does not have to divorce her (even though he has not fulfilled the Mitzvah of Piryah v'Rivyah with the birth of only one child). The REMA cites this ruling. The PISCHEI TESHUVAH adds, quoting the ME'IL TZEDAKAH (#93), that even if the wife is no longer capable of having children and they will never have a second child, Beis Din still does not force him to marry another wife.

(b) Regarding the current practice in such a situation:

1. The SHULCHAN ARUCH (EH 154:10) cites the RIF and the RAMBAM who rule that Beis Din forces the man to get divorced after ten years. However, others limit -- or entirely do away with -- this practice for various reasons:

2. A number of Rishonim (RASHI, HAGAHOS MAIMONI; see Insights to Yevamos 64:1) rule that the Halachah of the Gemara applies only in Eretz Yisrael and not in Chutz la'Aretz.

3. The Hagahos Maimoniyos (Hilchos Ishus 15:4) adds in the name of the AVI'ASAF that nowadays even in Eretz Yisrael, Beis Din does not force a person to divorce after ten years. This is because of the Gemara in Bava Basra (60b), which states that the Chachamim wanted to make a Gezeirah prohibiting marriage from the time that the nations started persecuting the Jewish people, on the grounds that it is better for us to refrain from having children and cause our own end than for our enemies to destroy us. The Chachamim, though, could not make such a stringent Gezeirah on the people. Nevertheless, the proposition of such a Gezeirah suffices for Beis Din to have reason not to force a person to fulfill the Mitzvah of Piryah v'Rivyah.

4. The REMA (EH 1:3, 154:10) concludes that nowadays, it is not the practice of Beis Din to use force (in all matters of Ishus).

Regarding whether the person himself should divorce his wife l'Chatchilah even though Beis Din does not force him to do so, the PISCHEI TESHUVAH cites the SEFER BIGDEI KEHUNAH (#1) who rules that if a man's wife is a G-d-fearing woman and they are happily married, then they may remain married even l'Chatchilah, because of the opinions which maintain that in Chutz la'Aretz one does not need to divorce his wife. Secondly, one can never know for sure that the source of the problem is not his own inability to have children (and thus divorcing her and marrying someone else will not help). Therefore, he should remain with his wife.

This has been seen to be the practice of many great Talmidei Chachamim who, Rachmana Litzlan, did not have children, as mentioned by RAV MOSHE STERNBUCH, shlit'a, in TESHUVOS V'HANHAGOS (1:790). Rav Sternbuch adds that even if the couple are living in Eretz Yisrael, nowadays we are so sullied with sin that we cannot be sure that it is not one's sins causing him not to have children. (In his Teshuvah, Rav Sternbuch describes some interesting Segulos that he recommends for couples trying to have children.)

77b