Is it permitted for a couple in the process of divorce to live in the same house?

Greetings,

The basis for permitting yichud with one’s wife when she is a niddah is twofold: first, because once a man has already had relations with her once, his yetzer no longer overpowers him (Shulchan Aruch, Yoreh Deah, siman 195, seif 1). Second, because she is destined to immerse and become permitted to him (Tosafot, tractate Sanhedrin 37a, s.v. HaTorah), this is considered as though he has bread in his basket, as will be explained below in the words of the Maharshal, and there is no concern that he will come to transgression.

Therefore, when there is no allowance for her prohibition, such as a woman who sees blood because of intercourse three times, it is forbidden to be secluded with her except in the presence of witnesses (see Shulchan Aruch, Yoreh Deah, siman 187, seif 12), or a captive woman who became forbidden to her husband the kohen, they are forbidden to be secluded (see Shulchan Aruch, Even HaEzer, siman 7, seif 9, and Chelkat Mechokek and Beit Shmuel there. Regarding a woman who had relations with another man, in a way that rendered her forbidden to her husband, see whether they are permitted to be secluded in Rema there, siman 117, seif 1, Chelkat Mechokek and Beit Shmuel, subparagraph 8, and Pitchei Teshuvah, subparagraph 2. And see also what was brought on this in the book Taharat HaBayit, part 2, siman 12, note 1, s.v. u-mah).

Accordingly, regarding a husband and wife who are in the process of divorce, and the wife is no longer immersing, there is room to say that since the second condition mentioned above is lacking, they would again be forbidden to be secluded. Similarly, in Responsa Maharsham, part 2 (siman 178), it is written about a woman who has not wanted to immerse for several years and says she will remain this way all her life out of wickedness, that it is forbidden for her husband to be secluded with her because he does not have bread in his basket, even though she may change her mind.

And in Responsa Kneh Bossem, part 2 (siman 105), it is written that if the Maharsham forbade seclusion even when she is only rebelling against him, all the more so when they are standing to divorce one another, when certainly this is not considered as though he has bread in his basket, and it is forbidden for them to be secluded.

However, there is one who inclined to permit being secluded with one’s rebellious wife, because the prohibition of yichud applies where there is concern that both will agree, not that we are concerned lest he have relations with her against her will. If so, when she has wounds and cannot immerse, there remains the concern that they may both agree. But in the case of a rebellious wife, whichever way you look at it: if she too agrees, then again he has bread in his basket (see the words of Rabbi Yosef Shalom Elyashiv, zt"l, in Responsa Kovetz Teshuvot, part 5, siman 194).

According to this reasoning, there is room to permit seclusion even for a couple who have fully and conclusively decided to divorce (see Responsa Mishneh Halachot, part 17, siman 35).

In any case, where the initiative for the divorce comes from the husband, and the wife on her part wishes to continue married life, it is certainly permitted for them to be secluded (of course, provided that she has not become permanently forbidden to him and has no impediment to going to the mikveh).

And even if the initiative for the divorce comes from the wife, as long as there is still some doubt that she may agree, they are permitted to be secluded (Responsa Vayaan David, part 5, siman 25).

With blessings,

Hillel Meirs