Israeli High Court: Adulterous Wife Still Entitled to Half of the Proceeds From Family Home

Netael Bandel
Netael Bandel
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Supreme Court President Esther Hayut on the bench in May.
Supreme Court President Esther Hayut on the bench in May.Credit: Ohad Zwigenberg
Netael Bandel
Netael Bandel

Israel's High Court of Justice ruled Thursday that a woman who had an extra-marital affair is still entitled in divorce proceedings to half the value of the home she had lived in with her then-husband. In its ruling, an expanded bench of the High Court of Justice overturned a prior ruling by the court.

The key question on which the justices ruled is whether adultery is a consideration relevant to the determination of a divorced couple’s property rights. In 2018, the High Court upheld a ruling by the High Rabbinical Court that had taken adultery on the wife’s part into account in the division of the couple's property.

Prior to that, Israeli rabbinical courts had been required to rule in such cases in accordance with civil law – in which adultery is not a relevant consideration. A year after that decision, Supreme Court President Esther Hayut granted a request to rehear the case, and on Thursday the bench she headed overturned the previous High Court ruling by a 6-3 margin, with Justices Noam Sohlberg, Alex Stein and David Mintz dissenting.

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In the current ruling Hayut wrote: “The difficulty in the High Rabbinical Court ruling is an obvious mistake, to the effect that sexual infidelity can constitute a basis for negating an intention to share that had taken shape and to permit the other spouse to retract the intention to share in the asset.” 

But Hayut qualified her opinion, saying that at times, there are exceptional circumstances that could make it possible to deny a spouse a full stake in the marital assets. Therefore, for example, if one of the spouses had “led a double life” without the other’s knowledge, the other spouse could claim that if he or she had known about the adultery, there would have been no agreement to share the marital property.

In the minority opinion, Stein contended that “the problem of policing of one member of the couple by the other ... worries me less than policing of a couple’s relationship by setting mandatory judicial norms, the aim of which is to instill in citizens, both women and men, the ‘correct’ virtues and values in the conduct of a couple’s life.” According to Stein, the justices do not have the authority to intervene in relations between the spouses. “Every couple will shape and manage its relations and its assets as they see fit,” he wrote.

In its previous decision in 2018, the High Court in effect reversed a ruling from about 25 years earlier, which had decided that in property disputes between spouses, the rabbinical court is required to rule according to civil law, which does not permit withholding anything from an individual because of adultery. Mintz and Stein, who had been on the High Court panel that heard the case in 2018, had ruled that the religious court was entitled to take the adultery into account and that its ruling did not justify intervention by the High Court of Justice.

The 1974 law on property relations between spouses provides that in a case of divorce, each spouse is entitled to half the value of the couple’s assets, but an asset that had been owned by one spouse prior to the marriage and had remained registered in that person’s name would not be considered joint property.

The High Rabbinical Court in Jerusalem in 2016.Credit: Oliver Fitoussi

However, the High Court expanded the scope of the law and in a series of rulings determined that it is possible to equally divide such an asset if a “specific intention to share” is proven. This refers to criteria developed by the family courts to determine whether the spouses had an intention to share an asset that had been the property of one of them prior to the marriage and is registered in that person’s name. Under the ruling, in cases of lengthy first marriages, and in particular in cases involving the home in which the couple lived during their marriage, the inclination is towards an equal division.

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