Regarding the obligation, previously discussed, to divorce one’s wife after ten years of childless marriage, certain Rishonim are of the view that this obligation has no application outside Israel. The Rosh15 and other Rishonim16 however, rule that this obligation applies everywhere.
Let us assume that we follow the position of the Rishonim who rule that the obligation applies everywhere. Does the obligation still apply after the 10th century legislation of Rabbeinu Gershon that prohibits a man from divorcing his wife without her consent and prohibits a man from having more than one wife?
In this matter too there is a dispute between Rishonim. There are those Rishonim who maintain that Rabbeinu Gershon never intended that his prohibition override the very important Biblical commandment of procreation. Other Rishonim maintain that since there is no guarantee that the man will have children from a marriage with another woman, the prohibition of Rabbeinu Gershon remains in place17.
Let us assume that we follow the opinion of those Rishonim who rule that the obligation to divorce one’s wife after a ten year childless marriage applies everywhere and that such an obligation overrules the prohibition of Rabbeinu Gershon. Does the obligation apply even when the couple does18 have children but do not have a boy and a girl? The opinion of many is that the obligation would not apply in this situation because having demonstrated the ability to produce children, the potential exists for the marriage to produce more children.
Whatever the outcome of these discussions among the Rishonim, there is a consensus among them that in the post-Talmud era, unless the marriage is a prohibited union, the Courts will not force a couple to divorce if neither spouse demands it19.
According to some authorities20, a man who is infertile can fulfill the Mitzvah of procreation through adoption. This ruling is based on the dictum21 in the Talmud that raising an orphan in one’s house is equivalent to giving birth to a child. The effort involved in adoption, suggests Dayan Abramsky22, is equivalent to the effort of childbirth.
Can one fulfil the commandment of procreation by means of artificial insemination? There is persuasive authority23 supporting the position that a husband can do so provided he is the sole donor of the semen. When the husband is not the donor of the semen, many authorities are of the opinion that he will not have fulfilled the Mitzvah of procreation24 (and Igrot Moshe, Even HaEzer Volume 4 Chapter 32, paragraph 5).
And what did the Bigdei Kehuna reply to the distressed husband? First he said, “you may rely on the opinion of those Rishonim that rule that the obligation to divorce one’s wife does not apply to a childless marriage outside Israel. Furthermore, there is no knowing whether you will find another wife, whether your new wife will be as loving and G-d fearing as your present wife and whether she will allow you to devote time and resources to raising an orphan and teaching him Torah. In addition, the expense involved in divorcing your wife and marrying another is prohibitive. According to the Halachah, you should not spend more than a third of your wealth on a Mitzvah, even one that you can fulfil such as for example, the purchase of Arba Minim. You are certainly not obliged to spend more than a third of your wealth on divorce and marriage for the sake of the Mitzvah of procreation, which, perhaps, you will never be able to fulfil.” And so the Bigdei Kehuna ruled that the man could live with peace of mind and his wife too. “Spend your time learning, look after the child and enjoy your marriage.”
Reprinted with the permission of the author from Ner Eyal on Seder Nasim and Nezikin by Raphael Grunfeld available from www.ou.org or at your Judaica bookstore.. Any questions can be addressed to the author at email@example.com
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