Divorce cases, including disputes between spouses, usually focus on “ordinary” matters, such as divorce in the rabbinic court, disagreements over child support, disagreements regarding the division of property between spouses, disputes regarding custody and implementation of child custody between spouses.
This time, I saw fit to relate to a less common, but unusual and important subject. Therefore, in the following article, I will deal with tort claims between spouses. In other words, what is the law in the case of a woman who has lived with a violent husband for years? What is the law in the case of refusal to give a divorce on the part of the man or the woman? In all these cases and more, tort claims can be filed.
However, in such claims, the tort claim is not between an unfamiliar “tortfeasor” and an ” unfamiliar victim,” but between two people who have married, established a home and a family – a good sable home in some cases. These characteristics create the complexity that accompanies such claims.
Tort claim – in theory and in practice
The tort law is mainly regulated by the Torts Ordinance [New Version] (hereinafter: “the Torts Ordinance”). The Torts Ordinance defines a large number of wrongs, which when performance may create liability for compensation to the injured party as a result of the wrong. A wrong, for example, can be “assault.” A wrong can also be “deception.” A wrong can also be expressed in “negligence”. There are also torts which are not regulated in the Torts Ordinance, such as the tort of defamation. This specific injustice is defined in a specific law, called the Prohibition of Defamation Law, 5725-1965.
The law of torts, are the laws by virtue of which a person who is injured as a result of the act of another person, can file a claim. For example, a person who walks in the street and is injured because of a physical hazard will be able to claim compensation from the body that was supposed to remove the same hazard, for example: the municipality.
In general, in tort law, several fixed elements must be proven in order to be entitled to monetary compensation. The first element concerns the proof of wrongdoing. In other words, it must be proved that an injustice indeed occurred in the factual aspect. Thereafter, it is necessary to prove the existence of a causal connection between the wrong and the physical, mental or financial damage caused to the victim. The third element to prove is the element of damage. In other words, the victim must prove that he/she suffered damage as a result of the wrong and also prove the rate of damage as much as possible.
Tort claims between spouses
Between spouses too, a wrong may arise, which will establish a right for the victim to claim monetary compensation. For example, when a woman suffers from domestic violence, physical and mental, she may suffer emotional damage and even physical damage as a result of the husband’s behavior. Therefore, in such cases, the woman may file a tort claim against the husband.
In another case, a woman whose husband refuses to give her a divorce and thus leaves her as an “Agunah”, may file a suit against the husband. The legal grounds that the woman can claim in such cases are – violation of autonomy, negligence, violation of human dignity and liberty, and more.
The reasons for tort claims that can be filed between husband and wife are numerous, but a significant part of the tort claims between spouses focus on domestic violence and the damage caused by it, as well as refusal of divorce.
How do you prove damage – as part of a tort claim between spouses?
Damage is defined in the Torts Ordinance as physical injury, mental injury, loss of pleasure, economic damage, and more. Generally, in any case dealing with tort law, damage must be proven by an expert who will express his/her opinion regarding the amount of damage caused to the plaintiff.
For example, when a tort claim is filed between spouses, claiming psychological damage caused by violence, the mental damage must be proved by means of a medical opinion of an expert in the field of psychiatry who will express his/her opinion regarding the rate of mental disability caused to the plaintiff.
Another example is when a husband acts violently against his wife and causes her physical harm, then the damage must be proven by a medical opinion of a specialist who will determine the rate of physical disability caused by the violence.
However, damage does not necessarily have to be expressed only in physical or mental disability, but can also result in loss of income, loss of pleasure, pain and suffering caused by the behavior of the tortfeasor.
Tort claims between spouses are very complex claims, since on the one hand, they involve passions and contained emotions and on the other hand they touch two separate but sometimes parallel areas, each of which is complex and rich in itself. On the one hand – tort law, and on the other – family law. Therefore, if you want to examine the possibility of filing a tort claim against your spouse, you should consult a family lawyer with experience in this type of claim.
Please note that the above short article is general and does not serve as a substitute for legal advice.