There seems to be no more significant and fateful legal contract than an agreement between spouses, when they stand under the canopy – and undertake to build their home and start a family together. Nevertheless, the courts in Israel enforce this contract in a much less serious way than the agreement to buy a 1978 hand-held Subaru station wagon.
A standard contract is enforced by the court. Sanctions are subsequently imposed on the violator of the agreement, and on the other hand remedies for the injured party. On the contrary, the lack of good faith or deception and concealment during the negotiations allow for sanctions – even though the parties have not undertaken to speak and do anything.
On the other hand, the courts have ruled that there is no place to enforce the marriage contract, the most powerful contract of all in a person’s life. A man can betray his wife, and the woman will not be compensated. The wife can “come out of the closet” and reveal to her husband that she hid it from him even before the wedding – but the court will not determine that the man is entitled to compensation. In an age where everything is judiciary, political affairs, political conflicts and military operations – there remains a remnant of emissions that reminds us that although “the whole country is a court”, but there remains a small corner in the country that law has given autonomy – and is the family institution.
And here’s a relatively fresh story from the Jerusalem District Court. Judges Tamar Bezeq-Rapaport, Miriam Ilani and Miriam Lifshitz-Pribes ruled that a spouse whose wife deceived him and claimed that her son was born of him, is not entitled to compensation. In doing so, the district judges reversed the ruling of Judge Nimrod Flex of the Family Court.
The father found out about the scam when the boy was five years old
The husband revealed that he fell victim to a “paternity scam” only on the day she informed him that she wanted to divorce, when the child was already five years old. The biological father is a person the woman knew as part of her job. Judge Flex noted that “the identity of the biological father was hidden from the man, both by the woman and by Mr. F., who joined them together, with prior planning and deliberate intent, to bring a child into the world together and mislead the man into believing the child is his biological son. He is the biological father of the child. “
This is what the discussion looks like. The judge said: “I looked at your defense brief and you mention there that indeed the child we are talking about is not the plaintiff’s biological son.” The woman replied, “True.” The judge responded that “you also state that the child was born from a sperm donation you received.” The woman: “Right.” The judge asked, “When you received the same sperm donation did the plaintiff know you received a sperm donation?” The woman replied, “No, he did not know.” The judge: “I understand that at the moment he knows.” The woman: “Yes. Now he knows.” Judge: “As far as you know from when he knows?” And the woman admitted: “That evening I informed him of the divorce.”
Judge Flex failed to hide his deep shock at the circumstances of the case. According to him, “the woman and Mr. F. joined them, behind the man’s back, with the intention of deceiving him, and even carried out their actual plot and continued the act of cheating for about five years … I think, therefore, It must also be charged with punitive damages, which has the effect of expressing the society’s aversion to actions. “
Finally, Flex wrote that “in view of the seriousness of the deliberate act on the part of the woman and the need to award increased compensation and even punishment, even to deter additional potential pests, I found it obligatory for the woman to compensate the man in the amount of NIS 250,000.”
“The very existence of the claim may harm the best interests of the child”
The Jerusalem District Court, as stated, reversed the decision. The judges wrote that “although the difficulty and sorrow that may be caused to a person should not be underestimated from a retrospective discovery that a child born to the spouse while raising him as his son, was born from another person’s sperm”, this is a problematic claim. .
According to the judges, the price in terms of the offspring exposed to the claim that his father is not his father is a heavy price, whether the claim is accepted or the claim is not accepted at the end of the proceedings. “Moreover, at the end of such a procedure, the offspring may find himself in a complete fog over the question of his father’s identity, and not necessarily in revealing his biological father’s identity – and thus the minor will be severely harmed. Here, until the date of the hearing before us, in fact, the identity of the minor’s father has not yet been determined in a binding manner. “
The judges wrote that “if the ruling does not outright block the path of one who seeks to raise such a claim, and in view of the many tensions in separation situations, the litigation instinct may lead to such lawsuits, the very existence of which will come at the expense of the disputing parties. The prosecution. “
The judges noted that “in view of the close connection between adultery and paternity fraud”, they believe that the wrong focus on not providing information about the identity of the man from whom the woman was violated, as opposed to adultery itself, is artificial.
The court clarified the reasoning for dismissing the lawsuit outright, stating that “in practice, recognition of the tort of ‘paternity fraud’ constitutes a legal norm that requires a woman to report adultery to her spouse. fatherhood”.
It is interesting to note that about a year ago, the Supreme Court ruled against Justices Ilani and Bezeq-Rapaport in a similar case, and adopted the ruling of the Family Court Judge, namely Nimrod Flex. What was the case story there? The lawsuit was filed by a woman and her mother who demanded compensation from the woman’s husband in the amount of five million shekels, for economic and mental damages caused to them and in particular to the woman, as a result of their fraud and deception by the man before and during the marriage.
According to them, the man is a homosexual, who lived a “double life”, when on the one hand introduced himself as a religious and heterosexual person, and on the other hand – acted behind the woman’s back, led a secular and homosexual lifestyle, fornicated and betrayed her during their marriage, had an affair and even offered him Marriage while married to her. According to the respondents, the misrepresentation of the woman led her to marry him and start a family with him.
The activist judge most of all refrained from intervening
Justices Uzi Polgman, Noam Solberg and Yael Wilner accepted Judge Flex’s claim that the lawsuit should be dismissed outright. The words of the Supreme Court justices were used by the district judges to dismiss themselves the recently claimed paternity claim. Judge Solberg wrote that “it is good for the court except to deal with the intimate and emotional matters between spouses. The civil court in general, and the contract and tort in particular, is not the appropriate hostel for this. Certain aspects of the marital relationship are too delicate. The open, much more than what can be discovered at all. Financial compensation, and so on in those accepted civil remedies, they can not give real medicine and balm, for heartbreak and disappointment from the life of the couple;
Judge Vogelman, perhaps the most activist of all the Supreme Court justices, warned of the consequences of imposing a legal obligation on a man to disclose to his wife his sexual orientations and sexual experience, even though they stand in stark contrast to a woman he is about to make an alliance with for days and years.
And so we have come to the point where the most important contractual relationship of all is the most unenforceable agreement. This is despite the fact that the parties invited, in fact the conclusion of the agreement, the legal system to intervene in the contract between them. And yet, Noa will move. Fragile of all, not enforceable of all but strongest of all and happiest of all. If they won, Shechina among them.