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"If he betrayed me, why is the financial agreement not annulled?"

From the closet of one of the spouses to domestic violence: what situations, if any, might lead to the annulment of a signed financial agreement?

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• Divorce

Adv. Shani Ben David, in collaboration with Zap Legal

Sunday, 04 April 2021, 12:02 Updated: 12:10

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(Photo: ShutterStock)

A. met M. at the university and fell in love with him.

Before they got married, it was clear to them: they would sign a financial agreement that would determine how the property would be divided between them, if God forbid they divorced.

Over the years, their relationship went awry, and M. began having an extramarital affair and cheating on A., until everything exploded.

The aggrieved and angry A., who all these years devotedly raised the children she and M. shared and did everything for the home and family, while M. developed a glorious career, was sure that M.'s betrayal would undermine the validity of the financial agreement between them, arguing that the agreement should not be applied as signed , While M. is evil in foreign fields while she sat at home raising the children.

A situation like this is unconventional, and it raises other interesting questions: for example, how will a prenuptial agreement be affected by a change in the sexual orientation ("coming out of the closet") of one of the spouses or, in contrast, by domestic violence?

Have you cheated on your spouse?

The financial agreement is immune

According to the Financial Relations Act, the basic rule is that during a married life spouses run like a business.

Together they accumulate property through joint effort over the years, regardless of who worked outside the home, and who helped raise the children more, and they will be entitled to half of the joint property accumulated by them, until the date of the rift between them.

This rule has a number of exceptions in the Financial Relations Act.

One of them stipulates that the permanent arrangement in the law will not apply if there is a financial agreement between the parties that stipulates another arrangement.

In a prenuptial agreement, the spouses may determine a property arrangement as they see fit in relation to property accumulated during the marriage, and determine how the same property will be divided at the time of divorce (funds, shares, apartments, etc.).

But what happens when an extreme crisis between the couple shakes the relationship?

For example, does one of them cheat on another or come out of the closet?

Will this have an effect on the validity of the same agreement signed by the parties in advance?

In principle, such events have no effect on the financial agreement.

The overriding principle in the courts is that agreements must be respected, and are therefore immune from change in cases of infidelity for example.

If the spouses have not expressly stipulated in the agreement that it will be canceled in the event of infidelity, exit from the closet or other extreme event - then the agreement remains in force, and the division of property will be made as the spouses originally stipulated.

How can betrayal affect?

It can cause a rabbinical court not to give an unfaithful spouse her address.

However, all property will be divided according to the provisions of the financial agreement, regardless of the betrayal.

When can "coming out of the closet" affect?

As noted, even getting out of the closet of one of the spouses in the marital life should not affect the property arrangement stipulated in the financial agreement.

When might such a dramatic move undermine the agreement?

When, for example, a claim of deception arises by one of the parties, claiming that he did not know about the sexual orientation of the other, at the time of the marriage.

This claim is based on the grounds enumerated in the Contracts Act to cancel a contract (in this case for deception).

However, this is a fragile claim:

First

, because the court carefully reviews the financial agreement before it is approved, and examines in depth the consent of the parties.

If the agreement is approved, it is hard to believe that it will be revoked in retrospect.

In this context, it is important to note that the court that approves the agreement and gives it the force of a judgment does not constitute a rubber stamp.

There are cases where during the procedure of approving the agreement, things will be revealed that do not allow its approval, for example: that the agreement grossly discriminates against one of the parties, alternatively, that the agreement is intended to be violated in the first place and is not feasible, or another example. In these cases the agreement will not be approved.

Second

, if the spouse, who has suddenly discovered his or her sexual orientation, claims that he or she did not even know he or she was same-sex when he or she married - the allegation of deception cannot be accepted, and it is difficult to argue that it justifies the annulment of the agreement.

In contrast, domestic violence - for all its difficulties - will not lead to the annulment of a financial agreement between spouses.

Domestic violence allows for proceedings to be taken against the violent spouse, but as a general rule it does not prejudice the validity of the financial agreement.

The agreement will not apply if the couple has actually abandoned it

A prenuptial agreement is, as stated, an exception to the basic rule set forth in the law, according to which the joint assets accumulated by the spouses during the marriage will be divided equally between them.

However, in cases where the spouses themselves deviated from the provisions of the agreement and turned it into a "drawer" agreement, a party to the agreement could claim that the agreement was void due to its neglect by the parties.

For example, if the spouses agreed in the financial agreement that rent from an apartment that belonged to the husband before the marriage would go into his separate account, but the husband chooses to deposit them in a joint account with his wife - strong that he consciously chose to renounce the agreement.

In conclusion

, a prenuptial agreement provides strong protection for the consent of spouses as to the manner of division of property between them in the event of separation.

This consent is likely to prevail over dramatic events in the marital life, such as infidelity or coming out of one of the spouses' coffers, unless the spouses have addressed this directly in the prenuptial agreement, and have determined that in these circumstances it will not apply.

The writer specializes in family law and inheritance, and accompanied by many couples who choose to make prenuptial agreements governing property division

** text is not a substitute for professional advice individually

Phone: 053-6213786

Article courtesy of Zap legal

information presented in the article does not constitute legal advice or a substitute for it and does not constitute Recommendation for taking proceedings or avoiding proceedings.

Anyone who relies on the information in the article does so at his own risk

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