Adultery

You met your partner, went out for a while, moved in together and eventually got married… some months later your first child was born and then, your second. You have created a wonderful family.

And then… one day, you met someone at work… at first you ignored her but after some time you found yourself getting more and more attached to her. At first you had meaningful conversations with her, the conversations led to meetings and the meetings to encounters for sex. In fact, you are married, you love your wife and still love her and care for and about her. This being said, you have committed moral, social and, in some ways, legal adultery by your actions. What is adultery? What does the law say about it? What is the legal meaning of adultery? Read on to find out the answer to these questions.

The article below will regard the term “adultery” in all aspects. I’ll deal with the definition of the term regarding family law, then, I’ll present some legal background regarding adultery and double marriage in the criminal aspect, in order to complete the picture. After that, I will deal with the laws of divorce and marriage in the State of Israel and the religious law that applies to them. Accordingly, I’ll explain what the meaning of adultery according to Jewish religious law is and how this affects our lives even today. I will also discuss the causes of divorce, where adultery is defined as the cause of divorce that is important to know.

However, before I begin, I wish to make a few comments – this article uses masculine tongue but refers to both sexes, unless otherwise written and the use of the masculine tongue is only for convenience. In addition, the article is a general article only and is not in any way a substitute for specific legal advice that corresponds to individual circumstances. For this purpose, it is advisable to contact a lawyer for divorce.

Adultery – theory and practice

In principle, there is no civil legal definition of the term adultery. There is a religious definition, which I will discuss later in the article, but in civil law and according to the laws of the Knesset, there is no definition of the term. In other words, it is not clear and simple to point out adultery. Society, is the one that defines adultery, that is, the recognized standards in a particular society, are those that shape the perception of society. In other words, some people might see a specific behavior as adultery. On the other hand, there are times where most of the society may see them as adultery, but a certain group will see it as legitimate behavior. Let me give a few examples:

When a married man has intercourse with a woman he is not married too, most of society will consider this as adultery. That being said, there are people who think there is no prevention in having an “open relationship”, i.e. a married couple can have intercourse with other partners. There are couples with this relationship in Israel. Frankly, these couples are a minority, not because of criticism of them, but because most of the society still sees extramarital sex as an act of betrayal – adultery.

Another example: a man is in a relationship with a woman but at the same time he flirts with other women all the time. He flatters them, chats with them but does not have sex with them. In this case, some people will consider this behavior betrayal of trust or inappropriate behavior. Other people, a majority, might consider this a legitimate. We see that most people consider betrayal-adultery as a sexual act out of the formal relationship (not necessarily marriage), between people. On the other hand, there are people who think that having a virtual relationship with someone else is adultery. Therefore, to sum this part let me say that adultery is tested according to social approaches. Hence, Israel doesn’t have a legal definition to adultery since this definition changes from one person the other.

We could say that the actual existence of adultery, whether it includes sexual intercourse or not, causes severe damage to the couple’s trust. In some cases, the damage caused fatally harms the relationship and serves as a catalyst to divorce. A couple base their relationship on mutual trust and when one party commits adultery, even if it does not include sexual intercourse, the other spouse’s trust in him/her is damaged.

Another question that arises in regard of adultery is: how can adultery be expressed? The answer is based on my attitude. I think that adultery can be expressed in two ways: the first is emotional adultery, i.e. a person who is in a relationship with another person but has strong feelings and desires towards a different person. These feeling and desires do not have to be expressed in a sexual act but courting after the person and wanting to be with him/her are such a betrayal. The emotional adultery is the harder one because it is based on emotions and not physical acts – emotions that will later be forgotten.

The second kind of adultery is the physical one. As implied by its name, this adultery is expressed when a person who is in a relationship with another person, has sexual intercourse with a different person. Physical adultery does not necessarily testify to emotional adultery. Sometimes, the physical adultery happens in a moment of weakness, helplessness or emptiness due to a weak connection in a certain time. Note that physical adultery is more common than emotional adultery. In some cases, the physical adultery is a one-time thing (one-time fling) and could be forgotten in some cases.

Adultery harms the relations between the couple, there is no doubt about that. It could also be accompanied with feelings of guilt, which are understandable. Adultery can upheaval the couples’ life and, as mentioned, end in divorce, be it emotional or physical adultery, or the combination of both, that caused it. This being said, I have seen couples overcome and forgive adultery and get back to having a good relationship. Adultery has been committed all the time and in all places and is not limited to one sector or population, from ancient times. Adultery is committed in very conservative and religious places, but also between open and pluralistic people too. Adultery is committed in economically weak sectors as well as strong sectors. Adultery does not “discriminate” due to color, religion or any other matter.

As a side subject, I’d like to refer to the question which is: why do people commit adultery? No doubt, the answer to this question in not a legal one. It is rather a social one. According to research, most people who committed or are still committing adultery, say that the adultery was propelled by the need/want to have an adventure in a life that is not progressing and a bit boring. The mere fact of doing something that is seemingly not permitted enhances the attraction to the person with whom you committed the adultery.

That being said, adultery, in many cases, is caused as a result of a “shaky” relationship. Many people who committed adultery against their partner say that the reason for committing adultery was that they were not happy in their relationship, that is about to end.  However, with all that has been said, adultery can be committed by people who are in a good relationship and are happy. Such people who committed adultery against their partner say that the adultery was caused by sexual attraction, a one-night stand or in a unique situation (such as a bachelor Party, trip abroad with friends etc.). The conclusion we come to is that adultery can occur any moment in any place, with no regard to social status, race or gender and regardless of the nature of the relationship.

On monogamy and polygamy

Most of us perceive the institution of the family as an institution, in which there is a mother, father and children. The mother and father marry each other and establish a family. But in the past, and today, in many places around the world, the perception is different. This is the difference between polygamy and monogamy. Most of us see the family as monogamous, meaning that marriages are held between only two people. But there are places that see the family as a polygamous institution, in which a number of women can be married. We see that adultery is ultimately a consequence of social perception. In Israel, there are also sectors where there is marriage to a number of women. In those sectors, this is not regarded as adultery and does not constitute an improper act. However, note that polygamy, i.e., polygamy in the State of Israel, is a criminal offense, in accordance with the Penal Law, 5737-1977.

Marriage and Divorce in Israel

The term adultery is very relevant in the State of Israel, in light of the fact that marriage and divorce take place according to the personal-religious law that applies to the couple. Regarding the Jews, the Rabbinic Courts (Marriage and Divorce) Law, 5713-1953, provides that marriages and divorces between Jews shall be conducted according to the law of the Torah.

The authority to try in Israel on matters of marriage and divorce is granted exclusively to the Rabbinic Court, whose authority derives from religious law. In other words, the Rabbinic Court decides on the basis of Jewish law and not according to civil law (in most cases). In matters of divorce, the person applying for it has the duty to prove that he/she has a cause for divorce, but the grounds for the divorce are not determined in civil law, rather in the Jewish religious law.

Before I explain the causes for the divorce, I emphasize that the process of divorce being conducted in the Rabbinic Court is a legal process for all intents and purposes: a person who wants the divorce must submit a detailed statement of claim and explain the relevant facts that establish the cause of the divorce. At the same time, the other party to the divorce process may oppose the divorce. In such a case, the couple will conduct divorce proceedings from start to finish. Each party will want to prove its claims. If the grounds for divorce are proven, then the Rabbinic Court will order the arrangement of a Get, i.e. divorce.

If the couple has an agreement on a divorce, then they may apply together to the court for a divorce agreement. In such a case, there is no need to prove the cause of divorce, only consent. The divorce process in the Rabbinic Court will be easier and quicker.

Grounds for divorce according to the religious – Hebrew law

As I have described, in order for the court to order a divorce, the existence of a cause for divorce must be proven. The grounds for divorce are defined in the Jewish religious law. Note that there are causes of divorce that concern a situation in which a man wants the divorce, but there are grounds for divorce that are relevant to a woman who is about to divorce. Let’s give a brief review:

Adultery – In contrast to civil law, religious law defines Adultery. according to Jewish law, adultery is a situation in which a married woman has sexual relations with another man. Jewish law states that this is adultery and a traitorous woman is a woman who was married betrayed her husband. According to religious law, the repercussions of the betrayal of a woman are harsh sanctions. For example, a woman who committed adultery is obligated to divorce her husband and the husband has no right to forgive her. Moreover, an adulteress woman is not entitled to a woman’s alimony and to her ketuba, and if a woman had children from another man, then her children would be recognized as bastards. It is not easy to prove adultery according to Jewish law. There is a need for two witnesses who saw the act., Adultery is the cause of divorce reserved exclusively for men.

An act of ugliness – an act of ugliness, is improper behavior on the part of the woman. This is not a case of adultery, but it is a situation in which the woman meets another man, but it has not been proven that she has had sexual relations with him, or when the woman is staying with men without the presence of her husband. An act of ugliness is a cause for divorce reserved exclusively for men. However, unlike adultery, a man may forgive a woman for an act of ugliness and rehabilitate the relationship.

Avoidance of sexual relations – the Jewish law states that “food cover and sexual pleasure shall not be reduced.” In other words, a man is obligated to provide his wife, both economically and in terms of marital relations. Failure to comply with this obligation creates a cause for divorce for the woman.

Physical malformation – If this is a physical defect that was not known to the spouse prior to marriage and if the physical defect causes disgust that prevents marital relations, then there is cause for divorce, for both spouses.

Infertility – infertility establishes grounds for divorce, both for men and women.

Adultery in the civil aspect, and is it possible to demand compensation on its grounds?

As described, adultery can damage the couple’s relationship. Adultery is not defined in the civil law but rather in the religious law. The “remedy” for adultery is divorce, both when committed by the man or the woman. This being said, the question that arises is whether one can claim for financial compensation, due to severe damage to the trust and even mental damage, from the adulteress party?

The answer is: no.  there have been cases in the past where the court was challenged with tort claims due to adultery. It seems as if the courts’ position is correct because a person should not be punished for his/her feelings. Moreover, one should not be punished because he/she does not want to be with one person and does want to be with the other. Therefore, the courts’ position was, and still is, that claims for adultery are claims that should be rejected. To illustrate, this is what the supreme court ruled in a case: “The obligation of a couple to accept the prohibition of “not to commit adultery” is on the social-moral-religious level, but it is impossible to import it into the law. The tortious law is not a sword that hangs above the couple’s bed, and the tort of negligence is not the “third passenger” concealed between the sheets, as if it were a foreign implant that might suddenly wake up from its slumber and trample the most intimate-emotional corners of a human being”.

The fear of claim due to adultery and the engagement in them stems from a number of reasons, which have moral logic and legal logic. One reason is the unwillingness to turn the relationship into something that can be judged. A relationship is not something that one can determine whether or not actions due to emotions are reasonable, as opposed to other legal areas. Another reason is the fear that relationships will become a “detection field ” between the couple and in fact the couple will start recording each other and following each other, which may seriously hurt the relationship. Another reason for this is the inability to always determine what adultery is. As described in the first part of the article, there are behaviors that some people will see as adultery, but other people will see as legitimate conduct.

In conclusion

It is not necessarily possible to define adultery and its occurrence is not based on precise reasons. Although religious law defines adultery, actual reality is much more complex than the reality established in religious law. In actual reality, adultery can be expressed in a variety of reasons and behaviors. However, since Jewish religious law applies to matters of divorce and marriage, adultery in certain situations may have a direct impact on our reality and on certain litigants who are in the process of divorce before the Rabbinic Court. Therefore, in such cases and in general, it is highly recommended to contact a family lawyer with experience in divorce cases.