Case Number

HCJ 4602/13

Date Decided

11-18-2018

Decision Type

Original

Document Type

Full Opinion

Abstract

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

A petition against the judgment of the Great Rabbinical Court dealing with the issue of specific co-ownership of the residential home that was brought into the marriage by the husband and registered in his name. The petition raises the question of intervention by the High Court of Justice in the judgment of the Great Rabbinical Court due to the fact that weight was accorded to the alleged infidelity of the wife.

Background: the parties are subject to the property regime under the Spouses (Property Relations) Law. The couple lived in the house with their children for over 20 years, until they divorced. The wife (the Petitioner) claimed co-ownership of the property; the husband claimed that the property was entirely his. The Regional Rabbinical Court accepted the wife’s position, but on appeal, the Great Rabbinical Court ruled by majority that the Petitioner had no share in the plot or the house. The Petitioner argued that among the considerations for denying the partnership, the Great Rabbinical Court accorded weight to the factual claim that the wife was unfaithful to her husband while still married to him. In this, she argued, the Rabbinical Court applied religious law to the matter of specific co-ownership in a residential home, thus acting ultra vires.

The High Court of Justice, (per Justice D. Mintz, Justice A. Stein concurring, Justice I. Amit dissenting) denied the petition for the following reasons:

Justice D. Mintz (delivering the opinion of the Court): The judgment of the Great Rabbinical Court was based upon a factual finding that co-ownership of the property was not proved, due to the absence of “additional supporting evidence” to prove the partnership (per Judge Amos), or due to the absence of an “assessment as to the intention or partnership or gift” (per Judge Nahari), or due to the absence of an “intention of co-ownership” (per Judge Almaliah). While the matter of the Petitioner’s alleged infidelity was mentioned in the opinions of Judges Amos and Nahari, and Judge Nahari expressed the view that “the act of infidelity creates an intention of non-partnership of the owner of the property vis-à-vis the person who was unfaithful to him, and this also applies elsewhere,” this is not enough to justify the intervention of the High Court of Justice in the judgment.

There is no dispute that the couple’s property relations are governed by the Spouses (Property Relations) Law, according to which an external asset is excluded from the balancing of resources. However, spouses are not prevented from claiming ownership of assets by virtue of the general law, i.e. regular property law and contract law. For this purpose, and for the purpose of recognition of co-ownership of a particular asset, including the residential home that was brought into the marriage by one of the spouses, it is necessary to show additional factual circumstances beyond the existence of a long, common marital life. The question whether the intention of specific co-ownership was proved is factual, and must be proved by the person claiming it. It will be examined in accordance with the assessment of the wishes of the two parties, their express or implied agreement, and their life circumstances in relation to the specific asset. In the case of a residential home, a lesser amount of evidence is needed to prove co-ownership.

Just as the creation of the partnership is assessed along the axis of married life, the circumstances that indicate the absence of partnership are considered along the axis of married life, and “one is not punished for them retroactively.” In other words, the infidelity of one of the spouses cannot nullify co-ownership of property that crystallized prior to the adultery.

Prima facie, in the present case, the couple lived harmoniously for many years, and the alleged adultery of the Petitioner in the later years cannot be invoked to nullify co-ownership of property that had crystallized previously. However, Justice Mintz disagreed with the position adopted by Justice Amit whereby the three judges of the Great Rabbinical Court included adultery among the considerations for nullifying co-ownership of the asset, and that it was that conduct that tipped the scales against the Petitioner.

In Justice Mintz’s view, the opinions of Judges Amos and Almaliah and their reasoning demonstrate that their conclusion was not dependent upon the alleged adultery. Therefore, there are no grounds for saying that the conclusion of the majority in the Rabbinical Court was tainted by irrelevant considerations, or that the Rabbinical Court applied religious law to the property relations between the spouses. Therefore, the Rabbinical Court did not act ultra vires.

Since the Rabbinical Court did not act ultra vires, and given the limited scope of the intervention of the High Court of Justice in the decisions of the rabbinical courts, the case does not fall within the scope of those cases that justify the intervention of the Court, even on the assumption that the Rabbinical Court erred in its application of the law.

Justice A. Stein (concurring): The High Court of Justice does not intervene in the judgments of the rabbinical courts except in narrowly defined cases in which one of the following flaws is present: (1) ultra vires action; (2) clear departure from the provisions of the law that are directed at the religious court, which can be seen as acting ultra vires, or as an error of law that is clear and evident on the face of the judgment, which is equivalent to acting ultra vires, and (4) this Court reaches the conclusion that a petitioner ought to be given equitable relief that is not within the authority of another court.

Taking into consideration the claim of unfaithfulness as part of the facts relevant to the matter of implied partnership is not a facial error of law, and it certainly does not constitute an ultra vires act.

In the absence of an express agreement, the question of co-ownership of property in a particular case is a question of fact, and it may possibly be seen as a mixed question of law and fact. In order to answer this question, the judge must make factual findings concerning the existence or absence of an equal-rights partnership between the spouses in the specific asset in question. The High Court will not intervene in such findings.

The Court only examines whether the Rabbinical Court exceeded the boundaries of its authority.,

The change introduced by the Bavli ruling was the repeal of the old rule whereby “the law follows the judge”. Accordingly, the rabbinical courts must decide property matters in accordance with the community property presumption as defined in the general law. The Bavli ruling transferred the property aspect of the laws of marriage and divorce from a regime of status to one of contract, which allows the couple to act as an autonomous unit and to determine the financial consequences of marriage and divorce by themselves and for themselves, subject to the protections against abuse provided in the Spouses (Property Relations) Law and in the general laws of contract.

The spousal relationship is an individual matter, not only on the emotional and intimate level, but also in regard to property. The autonomy of the relationship requires that the court adopt a neutral, equal attitude to all patterns of life between couples, and all property arrangements, as long as no exploitation prohibited by law is involved.

In addressing the question of partnership, the civil courts and the rabbinical courts must infer the existence or absence of an equal-rights partnership in a disputed asset from the couple’s lifestyle and expectations. These expectations may include a condition of absolute sexual fidelity as a sine qua non for the agreement of one spouse to share his property equally with the other. Such a condition, insofar as it exists, must be respected and enforced by the secular and religious courts.

While Justice Stein agreed with Justice Amit that the law does not allow depriving a spouse of property due to infidelity, the present case concerns giving and not taking. It is a matter of examining whether the wife was granted a right that she had not acquired for herself, due to her marriage to the husband per se), and not of taking away the wife’s property due to an act of “betrayal” or “adultery.” Whether such a right has or has not been granted is a matter of empirical fact, and not of guilt, punishment, justice or other consideration in the realm of norms, as distinct from facts. On this matter, the intention of the spouse who owns the asset is of the utmost importance. This intention might indicate a lack of desire to make the “unfaithful” spouse a partner in the asset, and the court is obliged to respect and enforce these intentions, too. This obligation exists by virtue of the transition to a contractual regime and the principle of autonomy of the relationship between spouses, which may be religious, secular, patriarchal, feminist, puritan or liberal according to the couple’s choice.

Two of the three judges of the Rabbinical Court decided the question of co-ownership against the wife, after examining all the elements of the relationship from the perspective of an implied agreement. This included the act of “betrayal” by the wife as a consideration negating or nullifying the husband’s intention to include her as an equal-rights partner in the house. For the above reasons, and by virtue of the talmudic rule “where a positive plea is met by an uncertain one, the positive plea prevails,” the Rabbinical Court was authorized to include this matter among its considerations. While the Rabbinical Court may have given the alleged infidelity too much weight, this has no bearing for judicial review of the High Court of Justice of the judgments of the religious courts, which is confined to the question of competence and to correcting fundamental errors.

Justice Amit (dissenting): The judgment of the Great Rabbinical Court takes us back to the days prior to the Bavli ruling. Inclusion of alleged “infidelity” in the court’s considerations constitutes a clear departure from the law and is ultra vires.

In accordance with the Bavli ruling, the secular law applies to the distribution of property. The secular law severs matters of the sexual conduct of the parties from the property dispute between them. This is not to say that the subject of infidelity can never have ramifications for the property dispute between spouses, but the matter must be examined from the perspective of the secular law for the purpose of the question of whether the community property presumption or specific co-ownership in an asset should be applied.

Community property and specific co-ownership of an asset form at a certain point along the axis of married life. Even those who hold that weight should be attributed to the guilt of a spouse when dealing with property matters would agree that the impact of infidelity is from the particular point onward, and a distinction should be drawn between property that accumulated prior to the act of infidelity and property that accumulated from the date of infidelity and until the actual dissolution of the marriage.

In the present case, even according to the husband, the alleged infidelity of the Petitioner occurred in the last few months of the 31 years of their marriage. Therefore, it is puzzling as to how the infidelity could be included among the indications and facts for the purpose of deciding whether specific co-ownership has been created over the years. The weight given by the Rabbinical Court to the Petitioner’s alleged infidelity is contrary to the case law of the Court, whereby rights may not be negated retroactively. The Rabbinical Court acted contrary to the Bavli ruling and ultra vires.

In certain cases, the infidelity of one of the spouses may figure as one of the relevant facts in deciding whether specific co-ownership in a residential home that was brought into the marriage by one of the parties has been created. In general, where it has been proved that the “betrayed” spouse did not intend from the outset to share his property with the “betraying” spouse (whether at all, or in the event of infidelity), this intention must be respected. As opposed to this, it is not possible to perform a “retooling” and to decide that once the spouse committed an adulterous act, we must assume that the “betrayed” spouse did not intend from the outset to share his property with herIn the present case there is no indication that the husband did not wish to share his property with the Petitioner in the case of infidelity. The Great Rabbinical Court’s judgment states that in practice, in any case of adultery, it can be found that there was no intention of partnership.

The High Court of Justice held a further consideration (diyyun nosaf) in this case, with a panel of nice justices. This further round was initiated by the Rackman Center of Bar Ilan University.

Keywords

Jewish Law--Rabbinical Courts, Jewish Law--Family Law

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