In a ruling that may signal the emergence of a rightwing faction in Israel’s Supreme Court, the court this week approved a ruling by the Rabbinical Court, according to which a woman who had been unfaithful to her husband was not entitled to half the value of the house in which they lived together.
Justices David Mintz and Alex Stein, both appointed under Justice Minister Ayelet Shaked (Habayit Hayehudi), ruled that the rabbinical court may take into account the wife’s betrayal, and that its ruling did not justify an intervention by the Supreme Court.
Justice Stein was selected to serve on the Supreme Court by the Judicial Selection Committee on in February 2018, an appointment reached after a considerable power struggle between Shaked and then Supreme Court president Miriam Naor. A week before his appointment, Stein apparently deleted a Facebook account where he had criticized the Israeli Supreme Court for its judicial activism.
Justice Mintz, who was appointed in February 2017, lives in Dolev, an Israeli settlement in the Binyamin region.
The ruling reversed a previous one, given about 25 years ago, which determined that in disputes over property between spouses, the Rabbinical Court is required to rule according to civil law, which does not consider marital faithfulness in deciding the division of community property.
Community property is acquired during the marriage and owned jointly by both spouses. It is divided upon divorce, annulment, or death. In most courts in the Western world, joint ownership is automatically presumed by law in the absence of specific evidence that would point to a contrary conclusion.
Justice Yitzhak Amit, serving on the Supreme Court since October 2009, issued a minority opinion arguing that the wife’s petition against the ruling should be accepted, warning that the majority’s approval would allow future rabbinical courts to deny women their rights to property due to adultery.
The case involved two spouses who married in 1982 and have three adult children. In 2013, the husband filed for a divorce with the Rabbinical Court, in which he claimed, among other things, that his wife had been cheating on him for several months. The wife agreed to divorce, but there was a dispute over the division of property, which focused on the family’s home. The husband claimed that his wife was not entitled to half the value of the house—registered in his name, since it had been built on a plot he had inherited before they got married.
Justice Stein, expressing a conservative approach according to which the High Court must refrain from intervening as much as possible in the decisions of lower courts, wrote that the Rabbinical Court “was authorized to bring the betrayal into account.”
Stein noted that “our law does not permit the revocation of property from a spouse who is found to be unfaithful to their partner,” but noted that in this case the wife was not a partner in the property, so the question is not whether to deprive her of a right, but rather whether to grant her a right she did not have.
“The supreme legislator, who enacted the Basic Law in matters of adjudication, did not grant us the power to intervene in the content of judgments and rulings made by religious courts, and this point has been repeated countless times,” Stein wrote.
The conservative justice admitted that in his opinion “the court gave too much weight to [the wife’s betrayal],” it nevertheless “ruled within the limits of its powers” and therefore there is no reason to intervene in its decision.