The Ten Years Issue

Divorce among Religious Bitter Pill

As a general rule, with allowance for exceptions, the more religious the couple who is divorcing, the more likely it is that their divorce will be bitter. This is an observation that comes from personal involvement with divorce, and from discussion with others who have been involved with this very painful component of Rabbinic life.

The reason for this is quite simple. Religious couples are more likely to have greater misgivings about divorcing. Though there is no denying that the divorce option is available, and biblically mandated for when a couple does split, nevertheless there is a great hesitancy to exercise that option. Marriage is sacred, and involves the sharing of a destiny by the couple.

The couple who marries within the religious sphere see their commitment as being lifelong. The idea of divorcing because one has outgrown the marriage, or because one seeks self-fulfillment via another, more challenging partner, or whatever other rationale for divorce, would simply be unacceptable for religious couples. For divorce to occur, there must have been and continues to be a serious impediment to the marriage, an impediment which defies any resolution. If it is a serious impediment, it is likely to be an anger-causing and bitterness evoking impediment.

Thus, the religious spouses who divorce are more likely to be combatants in a war; bitter enemies who drag each other down, and their families with them. When speaking about this being more likely, it does not necessarily follow that this is a certainty; only that it is more likely to be the case.

The Exception

However, there is one specific exception to this general observation. This exception involves instances when the divorce takes place because of the inability of the couple to have children. According to Talmudic law, a husband who failed to fulfill his obligation to have children within the space of ten years after marriage was obliged to seek another mate with whom to fulfill this obligation (Yevamot, 64a). Following the edict of Rabbenu Gershom, which forbade the husband from having more than one wife at a time, this meant that for the husband to find another mate, he would first be obliged to divorce his present mate.

At the other end of the spectrum, the wife who was childless with her husband could likewise ask the court to arrange for her divorce to be finalized. Her argument that she wanted children, and this was why she wanted out of the marriage, would be accepted.

Procreation Obligation

The primary obligation to procreate rests with the husband. Although it is the wife who does the carrying and goes through the excruciating labor and childbirth process, it is the husband who fulfills the commandment to be fruitful and multiply, through his wife giving birth.

At first glance, this seems incongruous, even unfair. After all, why is it that the wife does all the work and the husband gets all the credit?

The husband fulfills his obligation via the childbirth. The woman is not placed into the position of being obliged to have children, precisely because the process of childbirth is painful. The Torah at all times refuses to impose any commandment on an individual which by definition can only be fulfilled through pain.

Pain, Yom Kippur, and Circumcision

The most immediate challenges to this general principle seem to come from the obligations to fast on Yom Kippur (Day of Atonement) and to circumcise the child, both observances which have a pain component. But the obligation to fast on Yom Kippur also contains within it the attendant obligation to eat on the day beforehand, so that the ill-effects of the fast will not be so severe (Talmud, Berakhot, 8b).

The commandment to circumcise becomes obligatory when the child is eight days old. Since circumcision is a covenantal act, it would seem more appropriate that the child who is entering into the covenant do so with his full wits, namely at the age of Bar Mitzvah (responsible to fulfill the commandments), upon entry into the fourteenth year.

Instead, it is the parent who is obliged to arrange for the child's circumcision, and to do so at the earliest possible stage. The earliest possible time is after the child has cycled through the first seven days on his own, and has established some form of functional autonomy. The earlier the circumcision takes place, the less pain the child feels.

Thus, the principle of avoiding pain in the fulfillment of the commandment is so great that the commandment to circumcise is pushed back to the eighth day, rather than being done at the more appropriate but also more painful age of thirteen full years.

Pain and Childbirth

Likewise, since childbirth is painful, the primary onus for having children is placed upon the man, for whom childbirth is certainly free from pain. However, once the obligation is placed upon the husband, this carries with it certain weighty responsibilities. These include his obligation to be attentive to that requirement, and to take drastic measures if he has not fulfilled his obligation within ten years after marriage.

The couple who is childless has not necessarily drifted apart. On the contrary, they may have been brought even closer together through their common effort to beget children. This is an exceptional circumstance, wherein the couple may part company even though they love each other dearly. But they have failed in their intense desire to generate a posterity.

Pain of Childlessness

Although Talmudic law places an onus upon the husband to find other avenues for fulfilling his obligation to procreate, the general practice now is that the husband maintains the right to ask for a divorce, but he also has the right not to exercise that right.

The wife cannot claim that she desires a divorce in order to fulfill her obligation to procreate, since she does not have such a direct obligation. However, she is well within her rights if she asks for divorce on the grounds that having children is important to her, independent of whether it is obligatory.

It is a matter of halakhic (Judeo-legal) give-and-take, whether the husband can force the issue concerning the divorce under these circumstances. In the face of the wife's refusal to cooperate, it is debatable whether the edict of Rabbenu Gershom proscribing divorce against the wife's will can be circumvented through the permission of one hundred Rabbis.

What is beyond debate is that this is an excruciatingly painful type of divorce. It is painful because it is a divorce that is really not desired by either of the parties, were it not for the overwhelming wish to have children that neither of them has been able to fulfill.

The husband who goes to court asking for a divorce on the grounds of being childless, but who does so after having had a feud with his wife, is looked upon with some suspicion. This is a grounds for divorce that, to be claimed, must not involve any rancor between the divorcing couple.

This explicit precondition just about guarantees that the divorcing couple will have affectionate feelings towards one another when going through the painful process of separation.

Ten Functional Years

The ten year waiting period is more than it appears to be at first glance. These ten years must be ten years in which the husband and wife live together normally as husband and wife. Thus, if the husband was away for whatever reason for a protracted period of time, this does not enter into the calculation as part of the ten year wait.

Additionally, if there was a period of time during which there were no normal husband-wife relations, for whatever reason, medical or otherwise, this time period also does not enter into the equation. If the husband and wife were in an obvious state of disease, or tension, such that normal husband-wife relations were not possible, this period of time is removed from the ten year requirement.

The years in which either one of the couple was sick are also not included in the ten years. The sickness itself may have been the cause for the childlessness during that period, and cannot be considered as part of the ten years.

In other words, the ten year period must be ten years in which just about any other causes for the marital union not resulting in any offspring have been precluded. Failing that, we are not adequately assured that having children is beyond hope.

Modern Medicine

Whilst ten years is the period of time that is given in the Talmud, with modern technology it is possible to ascertain even earlier whether in fact the couple will be able to have children. It is also possible to more precisely pinpoint who of the couple is the one more responsible for the failure to have children. Surely, if the medical evidence shows that it is the husband's infertility which causes the couple to be childless, he can then hardly ask the court to intercede on his behalf for a divorce. If he is the cause of the childlessness, there is no hope that he will have children from another marriage. He then has very shaky grounds upon which to ask for a divorce.

On the other hand, when it is clear that it is the husband whose condition causes the couple's infertility, the wife would have ample justification for seeking a get.

This justification would be operative once medical evidence is in, even if it is well before ten years of marriage have elapsed. In all instances when the get request is made because of childlessness, whether by the husband or the wife, the Rabbinical Court will surely ascertain whether the couple has made use of the extraordinary medical facilities that are today available, to see if some medical intervention would help to solve whatever problem either or both of the couple have.

It is a singular act of bad faith, and a dereliction of responsibility, for either of the couple to ask for a divorce on the grounds of childlessness, but yet to have done nothing more than wait for a number of years. Without clear evidence of active investigation of all the medical possibilities, the request for divorce on the grounds of childlessness will be viewed as less than credible.

Future Focus

In most instances of divorce, there is a lament of what went wrong in the past. The divorce that results from the couple being childless is a lament of a marriage that has no future posterity. The childless couple who divorces should not allow the divorce to neutralize the feelings that they have for one another.

Since they do love each other, and would have loved nothing more than to spend an entire life together raising and nurturing a family, their focus should now be in two directions. For themselves, they should hope that they find a mate with whom they will be able to have children. And for their beloved ex-partner, they should hope for that very same thing, that the ex-mate finds a partner with whom to build a life and a future together.