(Aug. 3, 2011) On July 15, 2011, the family court in Tiberius, Israel, rendered an unprecedented judgment by rejecting a request to quash a husband's suit for compensation for pain and suffering caused by his wife's adultery. The case involved a couple that got married under Sharia law in 1993 and divorced in 2010. Israeli law recognizes Sharia law as applicable to marriages and divorces of Muslims in Israel. The husband alleged that his wife's adulterous affairs during the marriage caused him irreversible harm that resulted in the need for psychological treatment for emotional distress and loss of enjoyment of life. The wife requested that his claim be rejected because there did not exist under Israeli law a cause of action based on adultery.
The court held that adultery may be a ground for a tort action as well as for an action based on breach of contract. Although Israel's Civil Wrongs Ordinance (New Version), as amended, does not contain any specific tort based on adultery, the court held that adultery might constitute negligence in some circumstances, in accordance with section 35 of the Ordinance. The court found that adultery might also be recognized as a breach of a contractual obligation that is inferred from a marriage; specifically, that of respecting mutual loyalty and the commitment not to engage in adultery.
The court ruling in this case reflects a new approach in Israel's judicial system to the financial implications of adultery. In accordance with Jewish law applicable to personal status matters of Jewish citizens and residents of Israel, the wife's adultery is subject to the deprivation of some monetary benefits (the amount specified in the ketubah, or Jewish marriage agreement, and alimony). Adultery, however, generally has no impact on the wife's rights under civil law with respect to marital property.
The court emphasized that recognition of a cause for compensation based on adultery should not exceed NIS50,000 (approximately US$14,615). It also said that such a cause must be rejected if it is suspected that it was intended to improperly interject the question of guilt for the failure of the marriage into the consideration of division of matrimonial property under civil law, which does not depend on which party was at fault. Furthermore, the court held that the personal status of the parties must be considered prior to a determination of responsibility so that neither party will incur “double compensation,” because, as was indicated above, under some circumstances wives can already be subject to some financial losses upon a finding of adultery. (Family Court (Tiberius) Req. 11 A.Z v. M.Z (July 15, 2011) (Judge Asaf Zagori), NEVO LEGAL DATABASE (by subscription); Lihi Cohen-Dambinski, You Committed Adultery Against Your Husband? Tort Suit Is on the Way [in Hebrew], GLOBES (July 29, 2011); Civil Wrongs Ordinance (New Version), 2 LAWS OF THE STATE OF ISRAEL (New Version) 5 (1972), as amended.)