Levirate marriages are meant to be consummated. Without sex, they won’t produce a child to take on the name of the deceased — which is the whole point. So what happens when a levirate couple doesn’t have sex?
The mishnah teaches that if, during the first 30 days of their marriage, a woman approaches the court and claims that she and her husband did not engage in sexual relations (but he claims that they did), the court believes her and forces him to perform halitzah. After 30 days, the court merely asks him to perform halitzah, because his claim is taken more seriously once a month of marriage has passed. Why is it that we only believe the woman for the first 30 days?
The Gemara looks for a legal position that establishes that the maximum amount of time that a couple would wait before having sexual relations is 30 days. If it can, it can clarify the mishnah. We believe a woman’s claim that she and her husband have not had sex if it is made during the first 30 days of marriage, but after 30 days his counter claim that they have is probable. In the former case we can require halitzah; in the latter we can only request.
Pursuing this line of thinking, Gemara cites the following beraita (early teaching):
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A man may come to court to make a claim concerning virginity (i.e., that the woman he married was not a virgin) for 30 days after the marriage ceremony — this is the statement of Rabbi Meir.
Rabbi Meir assumes that a newlywed couple might not have sex for the first time until the 30th day of marriage, which is why a new husband has that long to bring a virginity suit. In the Gemara, Rabbi Yochanan suggests that just as a groom is allowed to make a virginity claim for the first 30 days of marriage, so too does a yevama have 30 days to claim that she and her husband have yet to have sex.
Rabbi Meir’s opinion, however, is not the only one in the beraita, which continues:
Rabbi Yosei says: If she was secluded with him after the wedding in a place suitable for sexual intercourse, a claim concerning virginity is only credible immediately. But if she was not secluded with him, they presumably did not engage in intercourse, and such a claim is credible even several years later.
While Rabbi Meir assumes sex is inevitable by the end of the first month, Rabbi Yosei bases the likelihood of sex on opportunity. If a couple has been alone, we assume that they must have had sex; if not, we don’t — regardless of how long they have been married.
Applying this second half of the beraita to our case, one could assume that Rabbi Yosei would not apply a rigid 30-day window during which we believe the yevama’s claim that her yavam has not consummated the relationship with her; rather, he would accept the woman’s claim only if she and her husband have not yet been together alone. This opinion of Rabbi Yosei has now complicated the support this beraita offers the mishnah’s ruling. Rather than exploring the merits of these two positions, however, the Gemara raises an objection, which brings such new clarity to the mishnah that you might wonder why it did not ask it first:
Before he is forced to perform halitzah, let us force him to consummate the levirate marriage.
If the goal is for the couple to produce a child, suggests the Gemara, then the court should compel him to have sex rather than to perform halitzah! So why doesn’t it do so? Rav explains:
The mishnah is referring to a case where her bill of divorce is already to be found in her hand.
Rav explains that the court doesn’t compel them to have sex because it is discussing a case where they are no longer married. In this very specific case, although the divorce ends the couple’s marriage, it only severs the levirate connection between the couple if they have had sex. If they did not, halitzah is still required and the woman is not free to marry until the ritual is performed. This explains why she would petition the court in the first place.
If they were married for 30 days or less, the court believes her and forces her husband to perform halitzah. After 30 days, whether we follow Rabbi Meir or Rabbi Yosei, we have grounds to believe her ex-husband’s claim that they had sex, so the court can only ask her ex-husband to perform halitzah, in the hopes that if he is lying, he will agree to perform the ritual and release her from the levirate bond.
Read all of Yevamot 111 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on June 26th, 2022. If you are interested in receiving the newsletter, sign up here.
