Do We Have to Reveal Our Sexual Past to Our Partners? Supreme Court Might Soon Decide

An Orthodox woman says her ex-husband should have told her he had conducted a gay relationship. The man's lawyers say all people have a personal story that they're entitled to keep to themselves

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Clubbers mingle at the Vox nightclub in Tel Aviv.
Clubbers mingle at the Vox nightclub in Tel Aviv.Credit: REUTERS
Lee Yaron
Lee Yaron

Natan and Tamar (not their real names) had their first date in a small Tel Aviv café 15 years ago. She was a religious woman in her 20s who had immigrated to Israel alone. He was a kippa-wearing man in his 30s. They were set up by mutual friends.

“They told me they had somebody I just had to meet,” she says; the two spoke well into the night about school, work, their families, previous relationships. But a lot wasn’t said. They continued seeing each other, and five months later they became engaged.

After 11 years of marriage, three children and stormy divorce proceedings, the two met again at the Supreme Court, with the three justices and a battery of lawyers between them. The hearings are focusing on the things that weren’t said on that first date – or afterward – and on whether they should have been.

After several years of marriage, the couple fell into a serious crisis. Tamar hired a private detective to follow Natan, which is how she says she discovered that he had been conducting a long affair with a man. According to the court rulings that have been cleared for publication, Tamar claimed Natan was leading a double life, living with her as a heterosexual religious man while he was actually a gay man living a secular lifestyle.

Natan denies this and insists he does not identify as gay. “Why do I have to define myself at all? Does every person have to tell their partner his entire sexual history or be prosecuted?” he told Haaretz, adding that he married Tamar because he loved her.

“Does every deviation have to be cited? Does a person have to say how many orgies he’s been to or tell about every fantasy he’s had? And if I’ve had some experiences with men, is that something that has to put me on the witness stand to be cross-examined? Can someone get into the depths of my heart to say if I loved her or not?”

A member of an LGBT delegation and an ultra-Orthodox man praying at the Western Wall in Jerusalem's Old City in 2017.Credit: Eyal Warshavsky

Tamar and Natan, who divorced in 2016, have since been through lengthy proceedings at the Jerusalem Family Court on issues of custody, child support and property. They now have joint custody of their children.

What turned this story into an important legal case began two years ago, when Tamar and her mother sued Natan for 5 million shekels ($1.47 million) for the economic and emotional damage they said he caused them by hiding his sexual orientation. They demanded that all the wedding expenses be repaid, along with all the money Tamar’s mother had given them during their marriage as financial support, the expense of the private detective, legal costs and the cost of psychological treatment.

“He defrauded me, he deceived me and ruined my life,” Tamar argues, claiming that Natan deceived her into a marriage with children so he could use her as a cover story.

Last year the Jerusalem Family Court refused to hear the suit. Judge Nimrod Flax, the court’s deputy president, ruled that the courts cannot recognize a right to reveal one’s sexual orientation or history to one's partner.

The judge wrote that, while it is impossible not to identify with the woman’s pain and emotional wounds, “The law does not provide grounds for making claims for the emotional damage involved in the breakup of the marital bond.”

Tamar appealed to the Jerusalem District Court, which ruled that the family court had to hear the evidence and make a ruling. The judges wrote that while “they share the feeling of discomfort” expressed by Judge Flax, the circumstances of the lawsuit are exceptional and justify a deviation from the general policy.

Now it was Natan’s turn to appeal, this time to the Supreme Court. The justices have to consider some weighty issues: Is there a legal obligation for partners to reveal their sexual history? Is sharing one’s previous sexual experience with a partner grounds for a tort claim and financial compensation?

And if one partner had an extramarital affair, does it matter if it was straight or gay? This last question is vital; it could influence the courts’ involvement in people’s relationships.

At an October 27 hearing, the justices suggested that the motive for the lawsuit might have been emotional and proposed that Tamar seek treatment from a professional, perhaps avoiding a lawsuit. If this does not succeed, the next hearing will be in three months.

You can't enforce love

A number of times, Israeli courts have ruled that an affair cannot be grounds for claiming damages or breach of contract. “Israeli law has chosen not to address cases of adultery,” says Prof. Zvi Triger, an expert on contract and family law at the College of Management in Rishon Letzion.

“This decision not to intervene in matters of the heart is part of a cluster of decisions by the Supreme Court and the legislature that one cannot enforce love, loyalty or other emotions through legal sanctions.”

This approach was expressed in a 1998 Supreme Court ruling. “The law will have difficulty providing succor to hurt feelings and a broken heart,” the justices wrote. “The partner who deludes, who commits adultery, who breaks up a relationship for no justifiable reason may be worthy of moral, religious or social condemnation, but the person hurt by him will have difficulty finding remedy in the law.”

In another ruling 15 years later, the court wrote, “Litigants in our country should understand that the legal process is not a remedy for every pain.” It added: “Along with the important interest of preserving the family unit, we must remember that we are dealing with a field anchored in the emotions. Betrayal and financial consequences are two separate issues.”

Another question, however, is the degree of a partner’s disclosure obligation.

“If a person hides from his future wife that he dons tefillin every morning, is a vegetarian, votes for [right-wing politician Bezalel] Smotrich, has a criminal record or was married twice before, is this a violation of some disclosure obligation that could be grounds for legal action?” asks retired Judge Menahem Hacohen. He says he doesn’t think so.

“On the other hand, a woman hiding from her future husband that she doesn’t have a uterus would be, in my opinion, a clear case where there are legal grounds,” says Hacohen, a former deputy president of the Jerusalem Family Court who now works as a mediator.

“But even if we agreed that a husband or wife has a moral obligation to reveal certain information, does its concealment automatically become a wrongful act?”

Prof. Ruth Halperin-Kaddari, head of the Rackman Center for the Advancement of Women’s Status at Bar-Ilan University, says the mixing of family law with tort law – which applies to wrongful acts for which damages may be sought – “requires extra caution. There’s a concern that the legal discussion will slide into a purist discussion of family morals.”

Still, she says, it’s clear that the law doesn’t stop at a family’s doorstep. If that were the case, victims of domestic violence would have no recourse.

The Supreme Court has supplied two conditions for determining whether to apply tort law to the family unit. The first is whether the behavior in question is forbidden under criminal law, and the second is if the behavior has significance outside marriage. A romantic affair, for example, has no significance outside marriage, while violence by a partner is a crime either way.

In any case, the story of Natan and Tamar is no longer their exclusive domain. The Aguda LGBT rights group believes the case poses a risk of discrimination against the whole community and has joined the case as a friend of the court.

The group argues that the district court required a hearing of the evidence and a ruling only because homosexual behavior was at issue.

“The results of that ruling, if allowed to stand, are harsh, discriminatory and cannot be implemented,” wrote Aguda lawyers Hagai Kalai and Or Karabaki. “Hundreds of thousands of people who are now in a heterosexual relationship have experienced or are experiencing sexual encounters of one sort or another with members of their own sex. Imposing a disclosure obligation on them and only on them is not desirable ... and not feasible.”

But Tamar’s lawyers, Ariel Atari and Dov Frimer, argue that there is no issue of principle here and that Aguda has no place in the discussion. “The attempt by the husband to turn the hearing into one of principle, and the attempt by the LGBT community to piggyback on this case is strange, to say the least, especially given that the husband has consistently argued that he is not a homosexual,” the attorneys said in a statement. “The gender argument is an effort to gain the sympathy of the liberal community for a baseless legal argument.”

Atari and Frimer added: “The family court was not prepared to hear testimony and thus, in our opinion, it reached a mistaken legal conclusion. Asking for the right to appeal is not an attempt to clarify a principle but an effort to silence women who have been victims of financial and physical violence by their husbands and to leave them victims of deliberate inappropriate behavior – both moral and legal – by their husbands, in an effort to improperly gain financial benefits.”

But according to her lawyers, Tamar maintains she does not dislike gay people and believes that all people have the right to live the life they want. However, she believes she should have the freedom to decide not to marry a gay man, not to have sex with him and not to have children with him, certainly given her Orthodox upbringing. That freedom was denied her because of her husband’s actions, she says.

During one of the custody hearings, Tamar asked the court to impose supervision on Natan’s meetings with the children, to forbid the older daughter from spending the night at her father’s and to even issue an order to separate the towels and eating utensils in the event either was wounded, so that “his bodily fluids would not pass to the minor in error and infect her with any illness.”

Tamar argued that the girls could be harmed “if the plaintiff contracts an infectious disease to which she claims those who have same-sex and random sexual relations are exposed.” The court rejected the request, which it said would have been better not submitted. The request was released for publication at the request of Natan’s attorneys, Shmuel Moran and Ifat Shechter.

‘I was always religiously liberal’

Natan maintains a religious lifestyle, wears a kippa and lives in a religious neighborhood near his ex. He refuses to assume any label, whether regarding the role of religion in his life or his sexual orientation.

“I was always religiously liberal, I would eat kosher in non-kosher restaurants. We went out and got married out of great love, and I have never deceived her. I married her because I wanted to be with her and have a family with her,” he says.

“We had a good, normal married life. Now she’s asking that the court put me on the witness stand and question me about how I felt in my heart in 2000 and at any given moment in my life? Do I even know? I don’t define myself in any way, and she never asked me these questions.”

Moran, Natan’s lawyer, adds: “This case is a clear example of how when we’re dealing with relationships, feelings, one’s internal world, fantasies and intimate sexual experiences, the private person must be respected.

“Every person has a personal story that he’s entitled to keep to himself. That’s human dignity. The court also has an obligation to a person’s dignity and to preserve his privacy.”

Triger, the expert on contract and family law, says: “There’s something very old-fashioned, in the bad sense of the word, and homophobic, in the interpretation that the plaintiff is giving to adultery, as a fraud whose roots are in the period when the couple was going out. She’s drawing a conclusion about the identity of her ex from something he did after their wedding, when he doesn’t see himself as a homosexual at all.

“Who determines our identity? Are we responsible for defining our identity? Do our actions define it? Is it fixed? Can it change at different periods of our lives and according to our life circumstances? The plaintiff is expressing a very rigid, anachronistic approach to sexual identity. I would even say that it’s an erroneous approach to what it means to be human.”

Flax, the family court judge, addressed these questions when he dismissed the original lawsuit. “Is it proper for the law to deal with questions that are found in the depths of a person’s personality and privacy?” he asked.

“Is it possible to determine that sexual tendencies of one sort or another deviate from the acceptable, or that these are a ‘flaw,’ ‘defect’ or significant information whose concealment from the intended bride or groom becomes a tort or deception while necessitating questions like ‘when did that person discover his sexual orientations’? And can one even prove the existence of one sexual orientation or another?”

Natan asks: “Does someone have the right to ask if I’m a virgin or if I like blondes? Would you want someone poking around in your sexual past that way?”

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