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J. #8 Bnei Gerushas Haleiv-If he plans to divorce her:[1]

One may not have relations with his wife if he intends to divorce her [in the near future[2]]. This applies even if he does not hate her [but rather still loves her, and is divorcing her against his will, such as due to Halachic reasons[3]].[4] [This applies even today, even though one cannot divorce his wife against her will.[5]] Furthermore, some Poskim[6] learn that it is forbidden for them to even live together in such a state, even without intercourse. Lack of guarding the above can lead to having rebellious children [created from that sinful union, or to having a rebellious husband] who go off the path of Torah and Mitzvos, as stated in A.[7]

Informed wife of decision: Some Poskim[8] rule that the above prohibition only applies if the wife is unaware of the impending divorce, however, if the wife is aware, then it is permitted for them to live together and have intercourse and doing so does not contain any prohibition at all.[9] Other Poskim,[10] however, suggest that the prohibition of intimacy applies even in such a case [due to the prohibition of Gerushas Haleiv[11]]. Nonetheless, even according to the stringent approach, they may continue to live together in the same home and have her serve him, if she is aware of the intent to divorce.[12]

Deliberating divorce:[13] If he is debating whether to divorce her, but has yet to make a final decision, then he may continue to have relations with her, unless there are Halachic reasons that validate such a divorce, such as infidelity, in which case they may not be intimate.

Pregnant or nursing or past menopause: These restrictions apply even if one’s wife is currently pregnant or is past menopause [or is nursing, or using a contraceptive], as stated in the introduction above.

Peru Urevu: These restrictions apply even if one has yet to fulfill the Mitzvah of Peru Urevu and is having intimacy for the sake of the Mitzvah, as stated in the introduction above. [However, if one intends, in the event that his wife becomes pregnant, to not get divorced, then it is permitted to be intimate, even if he plans to divorce her if she does not become pregnant.[14]]

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[1] Michaber O.C. 240:3; E.H. 25:8; See also Michaber E.H. 119:1-2 and the Nosei Keilim there; Nedarim 20b [Bnei Teisha Midos]; Gittin 90a [Al Tacharosh]; Yevamos 37b [Marrying on condition of divorce]; Piskeiy Teshuvos 240:12; Sheyikadesh Atzmo [Nachmonson-2015] p. 535-542

[2] The law if he intends to divorce her in the late future: Some Poskim rule that the above prohibition only applies when one has actually started the divorce process, or is ready to do so in the very near future. If, however, one only plans to start the process in a few months or years, then there is no prohibition in being intimate. Thus, if a couple is waiting to divorce until all their kids are married, then they may have intimacy until the time for divorce has arrived. [See Beis Shmuel 119:1; Sheyikadesh Atzmo 58:7-8]

[3] M”A 240:12; Beis Shmuel 119:1 in name of Tur, Rosh, and Ba’al Haturim Parshas Va’eschanon; M”B 240:19; Kaf Hachaim 240:37; See Taz 119:1-2

[4] Michaber E.H. ibid; M”A 240:12; Beis Shmuel 119:1 in name of Tur, Rosh, and Ba’al Haturim Parshas Va’eschanon

The reason: As we apply here the verse, “Al Tacharosh Al Rei’acha Rah.” [Beis Shmuel 119:1; Chelkas Mechokeik 119:1; Tur 119] This is in addition to the fact that the offspring of such a union are included in the Bnei Teisha Midos, of which the children are destined to become rebels and heretics r”l. [See Nedarim ibid; Beis Shmuel 119:1; Get Pashut 119:3; Pischeiy Teshuvah 119:1] The reason for this prohibition is because when one has decided to divorce his wife, he commonly thinks of another woman during intercourse. [Rosh Nedarim 2, brought in Mishneh L’melech Issurei Biyah 21:28, and Pischeiy Teshuvah 119:1]

[5] Setimas Kol Haposkim

Other opinions: Some Poskim rule that the above prohibition only applied in previous times, prior to Takanas Rabbeinu Gershon, when one was able to divorce his wife against her will. However, today, since one is no longer allowed to divorce his wife against her will, the prohibition no longer applies, as he is stuck in the marriage regardless. Hence, he may appease her and be intimate with her despite his ideal desire to divorce her. [Chochmas Shlomo 119]

[6] Possible understanding of Michaber E.H. 119:2 and so learns Beis Shmuel 119:1 and Peri Chadash 119:2 [in negation of possibility offered in Chelkas Mechokeik 119:1]; Rav Akiva Eiger 119:1 in name of K’neses Hagedola 119, in name of Ra’avad in Tamim De’im 239 that it applies even regarding living together

Other opinions: Some Poskim suggest that perhaps it is permitted for them to live together, without intimacy, even if he has already decided to divorce her. [Mishneh L’melech Issurei Biyah 21:28; Chelkas Mechokeik 119:1; See Aruch Hashulchan 119:9]

[7] See Kallah Rabasi 1:16

[8] Peri Chadash 119:2; Teshuvas Hage’onim 188; Get Pashut 119:3, brought in Mishneh L’melech Issurei Biyah 21:28, and Pischeiy Teshuvah 119:1; Beir Heiytiv 25:8; 1^st option in Perisha 25:31, brought in Beis Shmuel 25:9, based on Michaber E.H. 119:1; 1^st option in Chelkas Mechokeik 119:1; Mishneh L’melech Issurei Biyah 21:28, brought in Pischeiy Teshuvah 119:1, concludes that the prohibition does not apply in such a case, if he does not intend to marry another woman; Maharsha Gittin 90a; Piskeiy Teshuvos 240:12

Other opinions: Possibly, the above prohibition applies even if one’s wife is aware of the impending divorce, as perhaps it is only permitted to have relations by a temporary marriage, in which the wife was aware of the divorce before the wedding. [2^nd option in Perisha ibid, Beis Shmuel ibid and Chelkas Mechokeik ibid; See Mishneh L’melech Issurei Biyah 21:28, brought in Pischeiy Teshuvah 119:1]

[9] The reason: As it is permitted to marry a woman on a temporary basis, if she has been informed. [Poskim ibid]

[10] Seeming conclusion of Beis Shmuel 25:9; 119:1; Chelkas Mechokeik 119:1; Perisha 25:31 [as understands Beis Shmuel 119:1]; Mishneh L’melech Issurei Biyah 21:28, brought in Pischeiy Teshuvah 119:1, applies the prohibition if he intends to marry another woman; Get Mekushar p. 3a; Sheyikadesh Atzmo 58:5; See Toras Menachem 5745 4:2379

[11] Mishneh L’melech ibid; Get Mekushar ibid; Toras Menachem 5745 4:2379

Explanation: Having intercourse with one’s wife when one intends on divorcing her touches on two Halachic issues: 1) “Al Tacharosh Al Rei’acha Rah.” And 2) Bnei Gerushas Haleiv. Although in this case the first issue may be irrelevant, nonetheless, the prohibition of Bnei Gerushas Haleiv is still applicable. The previous Poskim, however, argue on this point as well. See Get Pashut ibid; Sheyikadesh Atzmo 58:5 footnote 9

[12] Peri Chadash 119:2; Rav Akiva Eiger 119:1 in name of K’neses Hagedola 119, in name of Ra’avad in Tamim Deim 239

[13] See Taz 119:2 that if he has the Halachic right to divorce her, then we apply the prohibition of the verse, “Al Tacharosh,” however, if one does not have the Halachic right to divorce her, then it can be understood from the Taz ibid that they may live together and be intimate [if he does not hate her at the time of intimacy] as his deliberations are merely theoretical in nature. See also Aruch Hashulchan O.C. 240:9 that it is only considered Bnei Gerusha if he has decided to divorce her, and E.H. 119:9, that if he does not intend to divorce her at the time of intercourse, but rather at a later date, then there is no prohibition. See also Chochmas Shlomo ibid for a similar allowance to continue intimacy if she has the right to not agree to the divorce; Taharas Yisrael 240:28; Piskeiy Teshuvos 240:12

[14] Get Pashut E.H. 119:3; Sheyikadesh Atzmo 58:7

[15] See Beis Shmuel 119:1; Sheyikadesh Atzmo 58:7-8

[16] See Shabbos 56a; Geresh Carmel Revid Hazahav 5 Va’eschanon p. 15; Mesores Moshe p. 505; Sheyikadesh Atzmo 58:8

[17] Mesores Moshe p. 508