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Yevamos, 64

1) CHILDLESS, OUTSIDE OF ISRAEL

QUESTION: The Mishnah states that if a man and woman are married for ten years without having children, he should divorce her and marry another woman in order to fulfill the Mitzvah of Piryah v'Rivyah. The Gemara derives the ten-year period from Avraham Avinu, who took a second wife after ten years. The Gemara points out that he married his second wife ten years after arriving in Eretz Yisrael; he was actually married to Sarah Imeinu for more than ten years when he took a second wife. The Gemara says that those years are not counted because Avraham Avinu was in Chutz la'Aretz during those years, and thus perhaps it was the fault of living in Chutz la'Aretz that caused him not to have children.

Does this mean that anyone who is in Chutz la'Aretz has no grounds on which to divorce his wife if they do not have children for ten years, and it is assumed that it is the fault of living in Chutz la'Aretz that prevents them from having children? We see that many people in Chutz la'Aretz do have children, so how can it be that living in Chutz la'Aretz causes a particular couple not to have children?

ANSWERS:

(a) The RASHBA cites RASHI (to Bereishis 16:3) who explains that the reason Avraham Avinu had to wait ten years after coming to Eretz Yisrael is because Hashem only promised him, "I will make you a great nation," after Avraham fulfilled the commandment to go to Eretz Yisrael ("Lech Lecha..."). Hence, it was only Avraham Avinu for whom the years of living in Chutz la'Aretz did not count. Avraham was physically unable to have children, and Hashem promised him that his nature would change and he would have children only after coming to Eretz Yisrael. Therefore, there was no point in counting the years during which he lived in Chutz la'Aretz. Those years did not count because he was physically unable to have children there, and not because of the misdeed of living in Chutz la'Aretz.

(b) The ROSH (6:12) explains that we find that Avraham was in Eretz Yisrael at the time of Bris Bein ha'Besarim, when he was 70 years old (as Rashi says in Shemos 12:40). At the time that he moved to Eretz Yisrael with his family, however, he was 75 years old (Rashi, Bereishis 12:4). How could he be traveling to Eretz Yisrael when he was 75 if he was already there when he was 70? The answer is that Avraham made a "pilot trip" at age 70, without the rest of his family. Five years later he returned with his family in fulfillment of Hashem's command to him. Hence, we find that Avraham delayed the fulfillment of Hashem's command for five years, and that is why he did not merit to have a child in Chutz la'Aretz. He was punished for staying in Chutz la'Aretz because of his delaying of Hashem's specific command to him to go to Eretz Yisrael. Other people, though, do not have such a specific command, and thus they do count the years that they live in Chutz la'Aretz towards the ten years of marriage with no children.

In addition, the ROSH and RA'AVAD (cited by the RASHBA) point out that after his first trip, Avraham left Eretz Yisrael to go to Chutz la'Aretz. *Leaving* Eretz Yisrael to go to Chutz la'Aretz is considered a misdeed that can cause a person not to have children, and that is why Avraham did not count the years that he lived in Chutz la'Aretz. In contrast, one who always lived in Chutz la'Aretz and who did not leave Eretz Yisrael to go there is not held accountable and does count the years that he lives in Chutz la'Aretz, childless.

(c) The RAMBAN explains that perhaps a person is required to divorce and remarry after ten years in Chutz la'Aretz. However, if he goes to Eretz Yisrael after ten years the count starts anew, because perhaps the *Zechus* of Eretz Yisrael will enable him to have children (and not that the *sin* of living in Chutz la'Aretz prevents him from having children).

(d) The HAGAHOS MAIMONIYOS (Hilchos Ishus 15:4) cites a number of Rishonim (Tosfos, Semag, Ra'avyah) who indeed say that a person in Chutz la'Aretz cannot be forced to divorce his wife, because it might be the sin of Chutz la'Aretz that is preventing him from having children, and thus it will not help to marry another wife. That this Halachah applies to anyone living in Chutz la'Aretz is also implied by Rashi (DH Miketz) in our Sugya. (For the current day practice regarding this matter, see next Insight.)

64b

OPINIONS: The Gemara concludes that even nowadays, the law of the Mishnah remains in force. If a couple have not had children after being married for a full ten years, then they should get divorced and the man should marry a new wife in order to have children. Does this Halachah require that Beis Din force a man to divorce his wife after ten years, or is it merely an obligation upon the husband himself to divorce her on his own accord, and Beis Din does not get involved? This question is debated among the Amora'im in Kesuvos (77a) and it is also the topic of discussion among the Rishonim in our Sugya.

(a) RASHI (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 (DH Yotzi) and RABEINU CHANANEL 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) As far as *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) -- he must divorce his wife if ten years go by and they do not have any more children.

2. The Mishnah 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 but a single 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) As far as the actual current practice on this issue:

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 a number of reasons:

2. A number of Rishonim (RASHI, HAGAHOS MAIMONI; see previous Insight) rule that this applies only in Eretz Yisrael and not in Chutz la'Aretz.

3. The Hagahos Maimoni (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, because the Gemara in Bava Basra (60b) 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, but the Chachamim could not make such a stringent Gezeirah on the people. Nevertheless, the proposition of such a Gezeirah teaches us that it is enough that Beis Din not force a person to fulfill the Mitzvah of Piryah v'Rivyah.

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

Regarding whether the person himself should divorce his wife l'Chatchilah, even though Beis Din does not force him to, 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, and because of the logic that 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 all 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.)