Infidelity in Marriage
A marriage is monogamous by nature; in it lies the idea of commitment to one person throughout our lives. On the basis of this, adultery is one of the oldest prohibitions of Jewish morality and Biblical and halachic punishment for adultery is harsh.
What is considered adultery??
Society gives different answers to this question:
While a one-time sexual relationship can be forgiven, an emotional relationship with another man or woman cannot.
It is important to emphasize, when the rabbinical court or the family court refer to infidelity or adultery, they are referring to sexual relations with another man or woman, outside marriage.
In the eyes of the law, even a one-time sexual relationship of a man or woman outside marriage without any emotional ties, is still considered adultery.
But again there is a problem in linking this idea or law with the reality of life today.
In my experience one of the main issues which brings about separation is not necessarily a long time relationship created out of marriage, because even a one-time sexual experience with another man or woman out of the marriage is no less challenging.
The initiative for a separation or divorce frequently comes from the betrayed spouse; a sense of severe hurt prevents him or her ever wanting to continue living with his or her spouse.
Many will forgive and move on. But what about other cases........?
The legal question arising time and time again is what the implications of sexual relations outside the marriage mean to the rights of the betrayed spouse / partner concerning all the different issues of divorce including separation of assets, custody and maintenance.
In the past there was a vast difference between the attitudes of the Rabbinical Court toward infidelity to that of the Family Court. In the Family Court in all matters concerning the rights of the spouse in the procedure of divorce, the "fault” element does not really exist. No matter what the background of the divorce or who created the rift, the rights of the spouse or partner will not be harmed. Property and financial assets will be distributed in accordance to the rules of the law of financial relations - which is basically equality of assets regardless to cause of separation or fault.
Child support will be determined according to the rates prevailing in the Family Court and child custody according to the basic rule of “the best interests of the child ". There is almost no connection between the "best interests of the child”, and monetary rights regarding the loyalty (or disloyalty) of spouse or partner.
I recently attended a hearing in Family Court where I represented a man who lived with another woman during marriage. His wife raised the claim to the court that her husband was unfaithful and the judge told her specifically (off the record) that he does not care, thus emphasizing that it is a non-issue. In the words of the court "he can be who he wants as well as you” and thus faithfulness or otherwise is not related to the distribution of rights and obligations at all.
However in the Rabbinical Court, at least in the past, the picture was quite different. There used to be a much more significant component of 'guilt 'in the divorce process if it turns out that the woman in the case was having a relationship out of marriage, or even a short time casual relationship. In such instances, the Rabbinical Court often ruled in favor of the "betrayed "party.
The best known cases are those of betrayal by a woman. In the past it was likely that a woman having an affair out of marriage would be deprived of her rights on account of her behavior including moneys accumulated during the marriage. There are even cases where they deprived the unfaithful spouse from half of all shared property, sometimes even the couples' mutual home.
The reality today is different. In a hearing at the Supreme Court, a betrayed wife petitioned the court to cancel the decision of the Rabbinical Court which determined that the husband's social rights will not constitute a part of the common property, because of the betrayal of the woman. The Supreme Court overturned the Great Rabbinical Court decision and stated that social rights constitute part of the common property of the spouses, regardless of the woman’s infidelity.
The Court held as follows: “a person should not be punished for his role in dismantling the relationship by economic sanctions, because maintaining family unity can turn out to be difficult and extremely painful. In some cases you can see one of the spouses has a greater responsibility for the dissolution of the relationship it bears to the other spouse. However, do not deal with the fault of either party, by way of economic injury, as part of the division of the couple’s property. Moreover, often it is difficult to speak in this context in terms of "guilt". Dissolution of marriage is the result of complex circumstances and betrayal in itself does not make one spouse guilty. "
In fact, in light of the Supreme Court's decision the Rabbinical Court deny a person’s rights due to infidelity.
However the ways the courts are conducted are very different indeed. The nature and behavior of a Rabbi will tend to vary significantly from that of a secular judge. Rabbis will have had their education in a yeshiva, markedly different from the academic background of secular judges.
In view of all these factors it is essential in every case to carefully check all data in determining where the divorce should be tried, especially when it is a case of betrayal or guilt.