We have recently witnessed a fundamental change in attitudes which has shattered the certainty that used to exist in family law and raised the possibility of blame being a factor in division of property between a separating couple.
Adv. Yonathan Kanir || July 2019
"Infidelity is one thing, financial results are quite another"
During the last four decades the clear and definite position adopted in the world of civil law is that while abandoning the home or infidelity may create a rift between couples, it should not be grounds for retroactive punishment through appropriation of rights in the matrimonial assets and a spouse should not lose the proprietary rights which he acquired or received during the marriage, even if he is the sole culprit in breaking up the home.
The Rabbinical Courts have also been inclined to issue rulings in this spirit, his Honor Rabbi and Supreme Rabbinical Court Judge (Ret.) S. Dichovsky having held over a decade ago that: "She may have committed adultery, but her assets did not", a stance which represented the dissenting view at the time, but which was accepted by the Supreme Court sitting as the High Court of Justice. The upshot is, that no "revenge" should be taken against the assets of the spouse who transgressed and they should not be taken from him because of his behavior.
The law, the Financial Relationships Law, and case law were unequivocal – the question of culpability in divorce should not be a factor in property division. This is what we thought, this is what litigants knew. However, we have recently witnessed a fundamental change in attitudes which has shattered the certainty that used to exist in family law and raised the possibility (or heaven forbid, perhaps already created the reality) of blame being a factor in division of property between a separating couple.
What has changed?
A couple came to the Honorable Haifa Rabbinical Court[1] who had been married for 30 years and had 3 children together. The wife had not worked for most years of the marriage. The husband had inherited land from his father on which the parties built a cottage that had served as their matrimonial home for approximately 20 years, during which time they carried out renovations and invested joint monies. The husband filed a divorce petition on the grounds that he had discovered his wife had been unfaithful to him and had grazed in a foreign pasture.
The Haifa Regional Rabbinical Court held that all the circumstances of the specific case led it to conclude that the parties intended to share the property which was registered in the husband's name only, and that since, in accordance with the civil law precedents, the wife had proved a specific intention to share the property and the existence of "something more", she was entitled to half the land and the dwelling house. The Haifa Rabbinical Court gave no weight to the infidelity argument pleaded by the husband as a justification for depriving the wife of rights which had been accumulated during the period which preceded the outbreak of the crisis between them.
The husband did not accept the ruling of the Haifa Regional Rabbinical Court and appealed to the Supreme Rabbinical Court in Jerusalem. In its judgment[2] the Supreme Rabbinical Court upheld the appeal, ruling that a doubt had been raised as to whether the parties intended to share the property which could be heard so long as it was supported by evidence and facts that the appellate court had the authority to interfere in. However, the Supreme Rabbinical Court did not make do with this factual finding, but "bolstered" it by holding that the act of infidelity, even though it was committed after more than 20 years of living together under one roof, created an intention on the owner's part not to share the property with the adulteress. In effect, the Supreme Rabbinical Court reverted to adjudication while emphasizing the matrimonial fidelity factor.
Between these two judgments came a ruling of the Honorable Rehovot Regional Rabbinical Court[3], which already went a step further. This case involved a wife who 17 years before the crisis erupted had been registered as the proprietor of half an apartment at the Land Registry (the Tabu). The apartment had been bought with the aid of a substantial contribution from the husband's father, although as aforesaid, registration of the title to it had been completed many long years before the crisis. The couple in question had lived together for over 18 years during which they brought 4 children into the world. The husband pleaded in his claim that despite completion of the registration and perfection of the gift by registration years before the crisis, since the wife had been unfaithful to her husband, the husband's father was entitled to a refund of his gifts due to the wife's behavior and rebelliousness.
In the most problematic of judgments, the Rehovot Regional Rabbinical Court accepted the husband's position and ordered the wife to return her half share of the apartment to her father-in-law, since the perfect life which she had lived with and alongside her husband and their giving birth to 4 children was not enough: the wife had been unfaithful and she therefore lost her gift and the registration had no significance compared to the "gravity" of the adultery. It was held that if the wife had committed adultery with the intention of becoming forbidden to her husband so that he would divorce her, or if she left him and went to live with another man, as had happened in this case, then she was both unfaithful and rebellious and hence she loses the half of the apartment which the husband's father bought for her and the apartment belongs to the husband – a ruling which contradicts the basic law that entries recorded at the Land Registry are final and absolute, that who brought more and why is not examined, and that certainly that rights are not annulled after so many years together.
The wife appealed against this ruling to the Supreme Rabbinical Court[4], which essentially rejected the wife's appeal and held, without mincing its words, that:" Anyone intending to be unfaithful to his or her spouse, should know that he shall not receive a gift that was given during the marriage by his or her spouse on the understanding that they would be living together without infidelity…" As far as the Supreme Rabbinical Court is concerned, infidelity constitutes such a pivotal consideration in the abrogation of gifts, that it even warrants the alteration and cancellation of entries recorded at the Land Registry concerning joint property.
We believed that the Supreme Rabbinical Court's judgments would be reversed in a ruling by the High Court of Justice, since as lawyers we knew the binding rule that infidelity cannot change proprietary rights, let alone cancel entries recorded at the Land Registry.
And then came the HCJ infidelity ruling
The HCJ infidelity ruling[5] addressed the judgment of the Haifa Regional Rabbinical Court and in a majority verdict endorsed the finding that a wife's adultery may constitute a factor that precludes her from joint ownership of the rights in the home, and that the Supreme Rabbinical Court had the authority to include her infidelity amongst its considerations.
In His Honor Judge A. Stein's dictum, which he stated without making a ruling on the matter, that infidelity may constitute a reason for altering the division of property, one of the pillars of the common law as we knew it, certainly based on the HCJ's rulings, had been instantly changed. This was a dramatic and weighty statement, since the inclusion of infidelity per se as a consideration for denial of property, while erasing years of shared living, is tantamount to a legal earthquake in family law, with all that this implies. At the time of writing this article, the two judgments (the Supreme Rabbinical Court ruling on the Rehovot decision and the HCJ infidelity ruling) are awaiting reexamination in various courts.
Infidelity as a tool for exerting legal pressure, is a Pandora's box which shall engulf more and more cases in the foreseeable future.
[1] [1] Haifa Rabbinical Court Case 927139/3 Ploni v. Plonit [Judgment given on 24.2.16].
[2] [2] Haifa Rabbinical Court Case 927139/3 Ploni v. Plonit [Judgment given on 24.2.16].
[3] [3] Rehovot Rabbinical Court Case 927139/3 Ploni v. Plonit [Judgment given on 30.4.17].
[4] [4] Rabbinical Supreme Court Case 1125089/1 Plonit v. Ploni [Judgment given on 26.3.18].
[5] [5] HCJ 4602/13 Plonit v. Ploni [Judgment given on 18.8.18].