A Wife Who Cannot Bear Children

A young member of the congregation secretly mar ried a Christian woman older than he. The parents wish to have the marriage annulled. It is difficult to do so because the couple have lived together for a month. However, it has been discovered that the wife is unable to bear children. The parents ask whether this fact makes the marriage void from the point of view of Jewish religious law. They would then argue for an annulment from the courts, adducing the con sideration that, according to Jewish religious law, the marriage is ipso facto void. Is it true that such a marriage is void by Jewish law? (From Rabbi Randall Falk, Erie, Pennsylvania)

The marriage is certainly void by traditional Jewish law, but not for the reason that the parents adduce. A marriage between a Jew and an unconverted non-Jew is not a Jewish marriage (kiddushin) and is ipso facto void. See Shulchan Aruch, Even Hoezer 44 : 8: “He who marries a Gentile, the marriage is nothing [i.e., null], for they are not capable of kiddushin [i.e., Jewish marriage].” Of course we may decide that we recognize the marriage as a secular marriage and therefore would not hesitate to convert the Gentile and then remarry the couple in a Jewish marriage. But, even so, as the marriage stands it has no validity at all as Jewish rehgious marriage (kiddushin). Therefore, if the parents wish to argue that in Jewish law the marriage is null and void, they may argue on this ground. The other ground, that she cannot bear children, then becomes unnecessary. However, for the sake of completeness, since the question may well come up about a man who married a Jewish woman who is unable to bear children, we will deal with this matter.

A woman who, because of her physical make-up, cannot bear children (generally called alonis) should, in theory, not be able to enter into valid marriage, since the purpose of marriage is to have children, as is clearly the Jewish law. Thus we would say, still theoretically, that a man, if he has not had children by a previous marriage, may not marry an elderly woman, too old to bear children. However, this is not the case, or more correctly, this is no longer the case in Jewish law.

In Shulchan Aruch, Even Hoezer I : 3, Joseph Caro says that it is the duty of the man to marry, and we compel him to marry in order to fulfill the commandment of bearing children. Thereupon Isserles adds (and we follow the law according to Isserles): “Nowadays it is the established custom not to exert any compulsion in this matter (to force a man to marry in order to have children); thus whoever has not fulfilled the commandment of ‘increase and multiply,’ and wants to marry a woman who cannot have children, as for example a barren woman or an older one or a minor, because he desires her or because of her money, even though technically by law one should be expected to prevent him, it has not been customary for many generations to be too insistent upon this. Even if one has married a woman and has lived with her for ten years, it is no longer the custom to force him to divorce her, even though he had not fulfilled the commandment to ‘increase and multiply.'” Thus Isserles states the established custom which has the force of law, that a marriage is no longer void even if we know beforehand that the woman cannot bear children.

In Shulchan Aruch, Even Hoezer 44: 4, the law is stated: “If one marries a woman who is physically unable to bear children [i.e., an alonis], the marriage is valid. But some say that if she is surely an alonis the marriage is not a marriage.” This possibility that the marriage is void according to what “some say” is explained by Ezekiel Landau in his responsa collection, “Nodah b’Yehudah” II, Even Hoezer 78. He says that those who say that the marriage is void mean only in the case in which he marries a minor and the physical signs of her being an alonis are not yet evident. Therefore such a marriage can be described as a “marriage of error” and is accordingly void. But if he marries an adult alonis, he knows what he is doing and the marriage is valid.

It is therefore clear that a marriage with a woman who cannot bear children is certainly valid according to Jewish law. However, in the case asked about here the marriage is invalid because it is a marriage with an unconverted Gentile.