Can a woman initiate a Jewish divorce if a husband refuses sexual relations?

This is an interesting question that touches on many major issues.

As described in the Torah (Deut 24:1-4) and as the ceremony is performed today as well, divorce is initiated by the husband, while the wife plays a more passive role.   Furthermore, the husband may not in any way be coerced to grant the divorce; any Get that is not given willingly is de facto invalid.

However, we already find in the Mishna (Ketubot Chap 7) a list of those cases in which a husband may be compelled to divorce his wife, later codified in the Shulchan Aruch (Even HaEzer 154).  Included in the instances where a husband may be required to divorce is an instance of a husband refusing to engage in marital relations.  It is important to note that conjugal relations are an obligation that a husband owes to his wife, referred to as mitzvat onah, which is completely independent of the commandment to “Be fruitful and multiply”.  (An excellent book that may be consulted on this topic is Marital Intimacy by Rabbi Cary A. (Avrohom Peretz) Friedman.)  Thus, a husband who refuses sexual relations is in serious breach of his most basic marital obligations and must release his wife from those bonds.

It is interesting to note that although, as I stated above, the husband is generally the active party in initiating a divorce, among the famous enactments of Rabbeinu Gershom of the tenth century was a cherem  (absolute ban) forbidding a husband to divorce his wife against her will, which provided a balance to the system.  Since that time, a get can only be properly executed if both the husband and wife agree to end the marriage based on their own free will.

The requirements of a halachically valid divorce are complex and can only be performed properly by Rabbis who are expert in this field.  The stakes are very high; if a person is not divorced in a halachically valid manner, and then remarries and has children in a subsequent marriage, those children would, heaven forfend, be considered a mamzer (illegitimate) in the eyes of halacha, which is to be avoided at all costs.   I would very highly recommend that anyone considering divorce consult with Kayama, a wonderful organization that, at no charge whatsoever, will help to facilitate a halachically valid get for this reason. They can be found at http://kayama.org/, or by calling (800) 932-8589. (Note: I have no personal interest in Kayama).

Finally, it almost goes without saying, divorce is a tragic, last resort solution that may be necessary, but is to be avoided if possible.  Competent help from marital counselors and clergy may sometimes help turn a difficult and painful  relationship  back into the bliss that was dreamed of when the couple stood under the chuppah, which would be the best possible solution for the couple, and of course, for any children.

Speaking about Halachah (Jewish law), as a general principle the answer to this question would be yes.

 

Traditional sources (the Torah and the Bavli) set forth that a man has an obligation to satisfy his wife’s sexual urges on some regular basis; failing this we can deduce that he may be compelled to divorce her (issue a Get/divorce decree).

 

This obligation is, however, not unlimited. The husband is obliged to a varying schedule, depending on his type of work. The texts speak of physical laborers having an obligation to greater frequency than a scholar, for example, and the obligation described is very varied, spanning the range of multiple times a week to once a year. Similarly, the husband’s ability to seek sexual satisfaction from his wife may be limited by his type of work; if he is engaged in a type of enterprise that has unpleasant effects on his person he may be limited in the frequency that he may approach his wife (the classic example is a tanner, who works with noxious smelling liquids, the stench of which remains on his person even after bathing).

 

Other conditions may also play a part in a determination. If either the wife or husband has in some fashion made themselves physically abhorrent to their partner, or otherwise caused sexual relations to be difficult, dangerous, or unpleasant, the obligation may be modified or even cancelled.  An example of such a situation might be if one spouse were to engage in illegal behavior and later to contract an untreatable STD that is a danger to life or health, if the other spouse discovered their condition, and it is likely that intercourse would infect the innocent spouse, any obligation to engage in intercourse would likely be obviated.

 

The only way to answer this question definitively is to pose the question to a competent Jewish legal authority, providing all the facts so that a complete analysis can be made and a decision taken. If this is something that is being considered, I would urge that the person asking this question approach their rabbi for advice on both whether and how to proceed.  

 

Rabbi Joe Blair