Infidelity Is One Thing, Finances Are Another

The Be?er Sheva Rabbinic Court was the court that initially ruled that a woman who cheated on her husband loses neither the property she brought with her or accumulated during the marriage, nor the property that was formally registered in her husband?s name.

Last week's High Court of Justice ruling, which overturned a Rabbinic Court of Appeals decision stating that a woman who commits adultery loses some of her financial rights during a divorce, naturally constitutes a convenient arena for conflict on the broader playing field of religion and state. Nor is this the first time financial relations between spouses have constituted a cause for such conflict.

As far back as the 1960s, the High Court developed the principle of "balancing" a couple's resources when the nuptial bond between them is dissolved. Justice Zvi Berenson was the first to rule thus, at a time when creative interpretation not backed by formal authorization was unusual. Such judicial decisions led the Knesset, in 1973, to enact the Law of Financial Relations Between Spouses, which applies to couples who married after December 1973.

Both the rulings and the law had a clear purpose: guaranteeing equal rights to women. Thus in 1994, the High Court ruled in the Bavli case that when it comes to dividing a divorcing couple's property, the rabbinic courts are obliged to apply the principle that all assets accumulated during the marriage will be shared, as formulated in both High Court rulings and the law. This ruling built a "Tower of Bavli" with its top in the heavens that the rabbinic courts have often ignored.

Last week's High Court ruling applies the principle of an equal division of assets even in a case where the marriage fell apart due to the infidelity of one partner (whether the husband or the wife). This holds both for couples who married after the Law of Financial Relations went into effect, and for those who married beforehand, since in that case, the court's previous rulings on asset sharing apply.

Justice Miriam Naor, with Deputy President Eliezer Rivlin and Justice Yoram Danziger concurring, explained in the ruling that both the court's previous rulings on asset sharing and the Law of Financial Relations are based on "a societal view of the institution of marriage as a free association between two individuals, which is based on equality, cooperation and mutual support." This viewpoint, she said, necessitates ensuring financial security and an opportunity for each of the partners "to stand on his own" in case the marriage is dissolved.

The decision adopted previous rulings that assigned significance to the concept of an equal sharing of assets in various contexts. Recently, the court even ruled that this principle also applies to "career assets" accumulated by one spouse, since the marriage facilitated the accumulation of these assets.

The assumption that the spouses have agreed to an economic partnership on many levels led Justice Naor to decide that infidelity should not be punished retroactively by rescinding the unfaithful spouse's rights to shared property, "since social rights are among the fruits of the overall earnings that were accumulated during the period of the spouse's employment." The justices refused to consider infidelity by either spouse as an "extenuating circumstance" that would justify ruling (under a special article in the Law of Financial Relations) that the division of assets should not be 50-50, but rather some other ratio.

Given the criticism of this ruling in religious circles, a very interesting fact should be noted: The Be'er Sheva Rabbinic Court, which first heard the case, was the court that initially ruled that a woman who cheated on her husband loses neither the property she brought with her or accumulated during the marriage, nor the property that was formally registered in her husband's name, even if she is to blame for the breakup of the marriage. The regional rabbinic court ruled that "for all our repugnance at the woman's behavior, she cannot be punished by abrogating her legal financial rights."

The Rabbinic Court of Appeals, which overturned the Be'er Sheva Rabbinic Court's decision, did so by a majority of two to one. The minority opinion by Judge Shlomo Dichovsky - who, incidentally, once rejected former Supreme Court president Aharon Barak's offer to join the Supreme Court - held that social rights cannot be forfeited retroactively, even if the woman sinned. But the majority opinion by Judges Hagai Izirer and Avraham Sherman held that adultery constitutes an "extenuating circumstance" that justifies reducing the amount of money received by the adulterer. One of the arguments it adduced for this position was that "the financial responsibility placed on the betrayed party in 'one blow' entitles him to better terms in the sharing of assets, whether they are from rights that accumulated before the adultery or after it."

Justice Naor's enlightening ruling analyzed the relevant issues in nine pages, with no need for the long and tiring dissertations that are the province of some Supreme Court justices. In light of the justices' tremendous work load, which leads to severe delays in handing down rulings, this "Naor model" should be emulated.