On August 16, 2021, Israel’s Supreme Court unanimously accepted a request for an appeal over a decision by the Jerusalem District Court regarding premarital disclosure of sexual orientation. The Jerusalem District Court had reversed a decision by the Jerusalem Family Court rejecting claims for monetary compensation for nondisclosure of sexual orientation and alleged nonreligiosity as nonactionable under Israeli law of contracts and torts. (FamA 5827/19 Anonymous v. Anonymous (main decision by Justice Yael Willner, Aug. 16, 2021).)
Circumstances of the Case
The respondents are the petitioner’s ex-wife and her mother. They had sued him for compensation for economic harm and emotional distress resulting from his engagement in homosexual relations with another man during the marriage. They alleged that his misrepresentation and deception before marriage as a heterosexual religious man had led his ex-wife to marry him and bear him children. According to the respondents, his sole purpose in the marriage was to take over her and her family’s money and to use her as a cover for his “true identity.”
The petitioner stated that Israeli law did not recognize adultery as a cause of action for purpose of damages. He argued that even if the respondents’ claim that he had committed adultery with another man during the marriage was accepted, this did not indicate that he held homosexual orientation before the marriage.
General Rules on Premarital Disclosure
According to Justice Willner, “the court’s ability to dictate to spouses what they should disclose and tell each other before or during the marriage has remained an open question that has so far not been resolved.”
Generally, however, the determination of the existence and scope of an obligation of disclosure between spouses depends on whether the subject of the disclosure relates to economic aspects, to intimate and emotional relations, or to “essential elements in the life and identity of the spouse.” Such essential elements, Willner explained, usually related to objective, measurable, or externally expressed data such as an unusual and significant medical condition of a spouse that has a real impact on the lives of the couple and their children or belonging to another religion or another nationality.
Prior court rulings tended to recognize the existence of a duty of disclosure between spouses in the economic context but not in the context of intimacy and emotions. The question of whether a spouse concealed information about the existence of a property or its value from the other spouse does not clearly involve questions of the moral guilt of either party in the collapse of the relationship, Willner held. Nor does it require the court to enter into the depths of the spouse’s psyche, motives, and feelings and thoughts, or infringe on the spouse’s privacy.
Similar to cases involving intimate and emotional relations were cases involving essential elements in the life and identity of the spouse, concerning which Willner opined that, given the real difficulty in drawing a line between the clear cases in which it would be appropriate to extend relief to the victim and those involving legal policy, the court would better refrain from adjudicating.
Premarital Disclosure of Sexual Orientation
According to Justice Willner,
[t]he existence of a legal duty of disclosure (as opposed to … a moral duty) in the context of intimacy and emotions between spouses is undesirable for reasons of legal policy similar to those [that led the court to conclude] … that no cause of action between spouses exists for adultery and infidelity. These aspects of a person’s life are deeply rooted in the depths of a person’s soul. … [T]hey derive from a person’s personal feelings and senses[, which] are dynamic, and different aspects of them may vary throughout a person’s life.
… Legal measures are not the appropriate framework for curing heart pain resulting from relationships between spouses that came to an end or for “settling scores” due to emotional disappointments. Claims against a spouse who hid his or her sincere feelings toward the other spouse; his/her real motives for institutionalizing the bond between them; the intensity of his/her sexual attraction to the other spouse or to others; the objects of a spouse’s passion; his/her thoughts and secrets — none of these are claims that deserve to be examined and adjudicated in court. (Decision para. 48.)
While disclosure of sexual orientation or preferences before marriage may morally be logical, there is no legal obligation to share such information with future spouses, Willner concluded. Considering that a disclosure could vary on the basis of relevant circumstances, a case where sexual orientation was formulated and recognized only during the marriage may differ from a case where it existed before the marriage. An appropriate legal policy, Willner held, would better avoid inflicting a severe blow to human privacy and autonomy. Such avoidance might also prevent what she viewed as flooding the courts with suits for spousal misrepresentations on intimate personal matters that would require judicial examination of the spouses’ inner feelings.
Disclosure of Religiosity Before Marriage
In Willner’s view, the same rationale that applies to lack of a legal duty to disclose one’s sexual orientation before marriage applies to disclosure of personal religiosity. She determined:The question of whether or not a person is religious is not subject to measurement or to an external or objective decision [and] … is concerned with personal and emotional matters relating to the spouse’s views, self-definition and beliefs. Also, a person’s self-definition on the broad range of religiosity can even change over the years, and is not necessarily static or binary. … The courts cannot examine the sincerity of the statements of the person who presented himself/herself to the spouse as falling [somewhere] on the religious spectrum before marriage, nor can they examine from these statements the reasons that led to the change. The marital relationship of a married couple is expected to last for many years, during which, naturally, the couple changes in different aspects of their lives, and the religious aspect … is one of those aspects in which — for all the reasons mentioned above — it is not the place of the justice system to intervene. (Para 57.)