In Rare Move, Israel's Top Court to Rehear Case on Denying Adulterous Woman Property Rights

In the 2018 ruling, High Court upheld a rabbinical court decision, by which a woman who cheated is not entitled in a divorce to half the value of the house the couple lived in

Justice Hayut in the Supreme Court, August 2, 2018.
Marc Israel Sellem

Israel's top court will rehear a contested case on womens' rights, Supreme Court President Esther Hayut decided Tuesday, following an appeal to revisit the 2018 ruling, based on a rabbinical court decision, that a woman who cheated on her husband is not entitled to half the value of the house the couple had lived in.

The woman herself appealed to the High Court of Justice and asked to have the case tried again, along with five women's organizations. In a move considered quite rare, Hayut agreed and said that a date for the new hearing will be set by April 2020.

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Attorney General Avichai Mendelblit and the rabbinical courts opposed the retrial, explaining that no laws on the subject have been changed, nor has the verdict.

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The ruling relates to a couple who were married in 1982 and now have three adult children. In 2013, the husband filed for divorce in a rabbinical court. He argued that the wife had been cheating on him for several months. The woman agreed to a divorce, but they disputed  the division of their assets, particularly their house. The husband argued that the wife was not entitled to half the value of the house, which was registered in his name, since it was constructed on a plot he’d inherited before they got married.

In November of 2018, the High Court of Justice upheld a ruling by the Great Rabbinical Court, according to which a woman who cheated on her husband is not entitled to half the value of the house the two had lived in.

In doing so, the court overturned a ruling from 25 years ago, which determined that in a divorce dispute over assets, a rabbinical court must abide by civil law, which does not allow infidelity to be brought into the case.

Justices David Mintz and Alex Stein ruled that the rabbinical court could take adultery into account, and that its ruling did not justify the High Court’s intervention. Justice Yitzhak Amit dissented, believing the woman’s appeal should be accepted. He warned that allowing the verdict to stand would enable future rabbinical courts to deny women their property rights on the basis of infidelity.

A 1974 law that covers financial relations determines that in cases of divorce, each side is entitled to half the value of all the couple’s assets, but that an asset that was owned by one of them before they got married, and which remained registered under that person’s name, would not be considered joint property. However, the High Court expanded the interpretation of the law, giving several rulings indicating that equal division of assets could take place if a “specific intention of joint ownership” was proven.

According to the criteria developed by family courts to figure out whether a couple intended to share an asset, in cases of prolonged first marriages, and particularly in cases of a house the couple lived in while married, the tendency was to split assets equitably.

In 2016, the regional rabbinical court in Haifa determined that in this particular case, the woman was entitled to half the value of a house, as the husband did intend to share it, based on claims the husband made, upgrades and investments into the home. 

The husband appealed the ruling and the Great Rabbinical Court overturned it, giving a majority ruling that the woman deserved no part of the house or the plot on which it was built. The ruling that accepted the husband’s appeal said the testimonies regarding the intent to share the asset were insignificant, and that the woman was “leaving the marriage with assets, and in better financial shape than the husband.”

The woman appealed to the High Court of Justice, arguing that the rabbinical court had applied religious laws to a dispute over property, in contrast to High Court guidelines. According to a 1994 ruling, religious laws apply to matters of marriage and divorce, whereas division of assets is ruled by civil law. The ruling determined that the sexual conduct of the spouses is not germane to disputes over assets, and that “a person should not be penalized for his part in dissolving a relationship through financial sanctions during the division of assets.”

Justice Stein determined that the rabbinic court was justified in taking into account the infidelity. He noted that “our law does not allow the denial of assets from a partner found to have been unfaithful,” but acknowledged that she was not a co-owner to begin with,"so that the question is not about denying her rights but of giving her rights she did not have beforehand.”

Stein expressed a conservative viewpoint, whereby the High Court should restrict its intervention in decisions taken by lower courts. He said they were not empowered to intervene in rulings made by by religious courts, although he admitted that the rabbinic court had given the matter of infidelity excessive weight. He noted that the court had ruled within the confines of its jurisdiction and that there was no room for intervention in its decision.

In contrast, Justice Amit said there was room for intervening in the rabbinical court’s ruling, warning of its ramifications. “The ruling’s content and rhetoric take us back to the days preceding the 1994 Bavli ruling,” wrote Amit. “Reading the entire ruling leads one to conclude that the infidelity swayed it against the appellant. Thus, the religious court was applying religious law to property disputes, in contrast to court rulings. It thereby breached its jurisdiction."

He noted that this was a case of a first and prolonged marriage and that the couple had managed a household together for more than 20 years, with the husband stating that the woman had another partner only during the final months of their marriage. Amit warned that Stein’s ruling would now allow rabbinical courts “to introduce the element of infidelity as evidence of a lack of intention to share assets."

Prof. Ruth Halperin-Kaddari, an expert on family law and head of the Rackman Center for the Advancement of the Status of Women at Bar-Ilan University, described this ruling as “an earthquake.” She said that “Justices Stein and Mintz were trying to conceal the deep repercussions of the ruling, hiding behind some dry technicalities, but this amounted to a red herring. The present ruling was a complete overturning of everything that’s happened here over the last 25 years in the arena of family law and in the relations between religious and civil law."

Prof. Halperin-Kaddari said that the ruling was unacceptable since the couple’s apartment had been built “with shared effort and funds.” She warned that this ruling would allow the introduction of moral and religious considerations into civil issues relating to property.” This would harm many women seeking a divorce, she said.