The Duty of Disclosure in Married Life (Column 432)

With God’s help

Disclaimer: This post was translated from Hebrew using AI (ChatGPT 5 Thinking), so there may be inaccuracies or nuances lost. If something seems unclear, please refer to the Hebrew original or contact us for clarification.

Some time ago a Supreme Court ruling was published (see the article by Yehuda Yifrach) that I wanted to discuss here. The case concerned a woman who married a man who presented himself as religious, only to discover that he was in fact a secular man who was an active gay. The question under discussion was whether there is a duty of disclosure on a partner before marriage, and what the implications of this duty are with regard to damages. The Court, in a panel of three justices (two of whom are identified as conservatives: Willner and Solberg; the third was Vogelman), ruled unanimously that this is a private and intimate matter between the spouses and therefore there is no duty of disclosure, and accordingly they also denied the claim for damages. I should note in advance that I read only Yifrach’s review and not the judgment itself, but on its face it seems downright bizarre. What is even more surprising is that the decision was unanimous (in the last paragraph of his article, Yifrach discusses what we would expect from a conservative judge on this issue. The answer is not simple).

The Case

The woman, from an affluent family, made aliyah from the U.S. and met a man whose lifestyle clearly indicated a bourgeois religious Zionist attorney—the very type she favored. The wedding was lavish and cost a fortune, as is customary in those social circles, and the parents continued to invest substantial funds in the groom even after the wedding. But after some time the woman discovered that it was all a façade. It turned out that at night the man caroused with various lovers, living openly as a gay man, and it appears he also did not observe other aspects of halakhah (he desecrated Sabbaths and festivals, etc.). In short, instead of a bourgeois religious man she discovered a secular gay man at the center of the LGBTQ scene. No less important, it turned out that this had begun even before their marriage.

She filed for divorce, and the proceedings were harsh and ugly. In that context she even alleged that he defrauded her in order to lay his hands on her family’s wealth. She later filed a tort claim as well, which ultimately reached the Supreme Court. The panel I described above decided unanimously not to obligate him to pay her damages. The issue under discussion was whether the spouses bear a duty of disclosure in such a case, and whether failure to fulfill it gives rise to a tort claim. I assume that all three justices would agree that one has a moral duty to disclose such a thing to one’s partner, as Solberg writes in his opinion that the judgment does not confer “a moral imprimatur or normative sanction for such non-disclosure.”

But at the same time, all three agreed that this duty of disclosure is not a legal one—i.e., not part of contract law—and therefore there is no duty to pay damages, as there would be for breach of contract or for willful concealment of relevant information.

Rescission of Contract: Mekach Ta’ut

The background assumption is that when two parties enter into a contract, each owes the other a duty to disclose relevant information. If it emerges that material information was not available to one party, the contract is void; and in lesser cases, where the contract is not void, there is still a duty to pay damages.

Another important distinction can be drawn between a situation in which information was knowingly concealed by one party and a situation in which the information was unknown to one of them but not due to any deliberate act by the other (for example, if the husband did not know he was gay). I assume this distinction is relevant only to damages, but that is not our issue here, since in this case it is clear that the information was intentionally concealed.

There is yet another important distinction regarding rescission: between annulment of a transaction based on an umdena (“on this understanding”) and annulment based on mistake (mekach ta’ut). For example, if the husband had become gay after the marriage, then at the time of the marriage the contract was concluded on the basis of full information and a true meeting of the minds. But in our case the husband was already gay at the time of the marriage, and therefore, ostensibly, the contract itself was concluded on the basis of erroneous information and has no validity. This is a situation that mandates rescission due to mekach ta’ut. In several places (see column 148 and here) I have noted that in halakhah there are also situations in which a contract is nullified based on a change that occurred after its formation. The classic example is the Gemara in Kiddushin 49b regarding someone who sold all his property in order to ascend to the Land of Israel but was ultimately coerced and failed to ascend. The Gemara says the sale is void, even though there was no stipulation at the time of sale and even though the information at that time was indeed that the seller intended to ascend to the Land of Israel (see Tosafot s.v. “Devarim she-balev” there). Those intentions did not materialize for reasons beyond his control, and all that happened only after the sale. Even in such a case there is an assumption that if the information is critical and material, there is an implied condition, as if the seller conditioned the sale on his ascending to Israel. Had he known that in the end he would not ascend—he certainly would not have sold.

I will not enter here into my second contention, which aroused considerable opposition (particularly its application to kiddushin). The criteria for when a breach is so material that the contract is retroactively nullified are indeed unclear, but that is not our situation. The relevant information was in the husband’s possession already at the time of the marriage, and therefore our discussion concerns annulment and damages due to mekach ta’ut.

Are Marriage a Contract[1]

In halakhah, kiddushin are a contract in every respect, to which contract law applies. There is a contract between two parties who undertake mutual obligations toward each other, and therefore a meeting of the minds is required from both. One can make conditions regarding kiddushin; there are rules of mistake and rescission, and more. It is no accident that the first chapter of Tractate Kiddushin deals with matters of contracts, acquisitions, and Choshen Mishpat. In my essay here I noted that many tend to ignore this dimension of kiddushin, seeing them as a festive and romantic ceremony. The reading of the ketubah expresses—very bluntly—the legal-contractual dimension of this ceremony, which ought not be ignored.

I have written in the past that in the secular world there is a stronger tendency to ignore this dimension. People there tend to view marriage as a romantic ceremony rather than as a binding legal contract. Hence infidelity is sometimes seen as forgivable mischief (to a greater or lesser degree), not as a breach of contract. It is treated as if it were a religious prohibition of sexual relations (something that bothers only the religious), rather than a breach of contract (which ought to concern everyone). Incidentally, there is an aspect of this contractual understanding that religious people tend to ignore. A husband’s infidelity is a relatively light prohibition, whereas a wife’s is adultery, which carries the death penalty. But that distinction belongs to the realm of sexual prohibitions. From the perspective of breaching the contract between the spouses, the husband’s infidelity is as severe as the wife’s. This obviously pertains to the social-legal contract the couple make with one another, not to the halakhic contract between them.

For Our Purposes

As we have seen, marriage is a contract in every respect. Not exactly a monetary contract (though it has monetary aspects), but a contract in the domain of personal status. It is self-evident that the parties’ meeting of the minds is required for marriage. From here it would seem to follow that when critical information is concealed from one of them, a material defect has occurred in that meeting of the minds, and therefore the marriage should be annulled. Consequently, one should also discuss liability for damages due to breach of contract (though in halakhah there is apparently no such damages remedy).

To be sure, annulment of the marriage is within the mandate of the Chief Rabbinate and not the civil court (though in my non-professional assessment a civil court might perhaps annul a marriage in such a case). The Rabbinate should have annulled it by reason of mekach ta’ut. But the Rabbinate, true to form, of course did not annul the kiddushin; rather, it led the couple to grant a get. Therefore what remained for the court to consider was only the duty to pay damages.

The Ruling

The Court wrote that while marriage has contractual elements, it cannot be adjudicated under contract law as such. The justices’ main contention was that this contract concerns matters of emotion, which cannot be adjudicated by a court. Vogelman writes: “The law was not designed to heal a broken heart,” and Solberg writes: “Emotions are not a commodity and are not to be traded. Emotions do not constitute a proper subject of a contract.” Solberg cited the legal scholar Nili Cohen, who wrote:

It is quite difficult to determine whether a breach has occurred when the duty lies, in whole or in part, within the inner world of the contracting parties. The natural arena of contract law is the marketplace. Spiritual or psychological realms lie outside the traditional domain of contract law.

I truly cannot understand this claim. If it turned out that the “man” was in fact a woman disguised as a man, would they also say that this is not a breach of contract because it concerns matters of emotion? Beyond that, our Sages have already taught that “everyone knows why a bride enters the canopy,” meaning that the sexual relationship is a cornerstone of the marital bond, and when that cannot take place properly it is hard to see how there is not a fundamental breach of the contract. Even infidelity with someone else can be regarded as a ground for annulment based on umdena, but if the breach was embedded in this contract from the moment of its formation, then it is certainly a ground for annulling the contract due to mekach ta’ut. Any reasonable woman asked would say that had she known her husband was gay, she would not have married him. These are matters in her heart—and in every person’s heart—and therefore they are not merely subjective “matters of the heart” or “of emotion.”

Justice Amit’s words are quoted by Justice Willner, and he wrote as follows:

Given that infidelity in married life is a common phenomenon, opening the door to lawsuits for adultery and betrayal may flood the judicial system with claims and lead to the juridification of married life.

And he further writes there:

Lawsuits of this sort will not bring healing to the wounds and pain bound up with a spouse’s betrayal. On the contrary, they are like obsessively scratching a wound, delving into the most intimate and private corners of the litigants’ lives and causing suffering to all involved… Litigants in our country would do well to internalize that legal proceedings are not a cure-all. It is hard to accept that, in the name of protecting privacy and preserving the family fabric, the law would storm into the most private and intimate space of the parties.

Amit understands that at least in a healthy society in which infidelity is not the norm, there would be room to view it as a breach of the marriage contract. But here we are dealing with a gay spouse, and this—someone who presents himself as straight and marries a woman—is by no means a prevalent phenomenon.

But note that Amit is speaking about a claim for damages due to infidelity. Even if I accepted his words, for the sake of argument, here the damages claim is not for infidelity but for breach of the marriage contract itself. The marriage is void, and this façade is an excellent ground for a damages claim. This is not an incursion into the private domain—into the intimacy between the spouses—because there are no spouses here. They are not married. Hence this is litigation between two individuals in our society. The law’s unmistakable role is to regulate relations between different people in society.

To be sure, as I noted above, the annulment of the marriage should have been determined by the Chief Rabbinate, and once it failed to do so, we entered the realm of damages (or “remedies,” in the parlance of our legal cousins) and litigation between spouses. From there the door was opened to the unfounded statements cited here.

Yifrach himself notes that the courts have not infrequently entered contractual questions regarding relations between partners. For example, people who posed as Mossad operatives or senior officers and persuaded women to marry them. Such cases are a joke compared to this one. A woman for whom it matters that her partner is an officer or Mossad agent is indeed a strange woman. That is, of course, her right—but here one could say that this is a private matter between partners, each with his or her taste. That is not the court’s business. But our case is a clear one that does not depend on the taste of this or that woman, but on matters that lie in the heart of every person.

Justice Willner proposed criteria for situations in which it is nonetheless appropriate for the court to intervene:

Justice Willner proposed dividing into three categories: the court will intervene when one of the spouses fails to disclose material information in economic matters—for example, where one party hides overseas investments in the context of a divorce dispute; by contrast, it will not intervene when the non-disclosure concerns “intimate and emotional contexts, including a spouse’s feelings, emotions, intimate experiences, self-definition, opinions and beliefs.” In the third category, the court will consider intervening in contexts relating to “material components in a spouse’s life and identity,” such as a severe chronic illness, or belonging to another religion or to another nationality.

A serious illness or concealment of assets are indeed grounds for legal intervention—but being gay is not? I cannot make sense of these peculiar criteria. True, economy and illness are not matters of the psyche—but viewed this way, perhaps homosexuality is not either. And what of belonging to another religion or to another nation—is that not a matter of the soul? Can a woman not fall in love with a man of Belgian nationality or someone with cancer? These, too, are intimate matters of the soul. In addition, I do not understand why being secular differs materially from belonging to another faith (though one could quibble about this).

Solberg, by contrast, explicitly mentions religious faith among the matters in which intervention is not appropriate:

“The law should refrain from intervening in the intimate-emotional relations between spouses, in the secrets of their hearts, the treasures of their souls, and their beliefs,” he wrote. “Sexual orientation is bound up with a person’s inner and intimate feelings, desires, and passions; religious faith lies deep in the recesses of one’s soul, derived from the command of conscience. Whether these facets of a person’s life are not static and unchanging, spread along a spectrum that varies from person to person, or not—proving them under the rules of evidence is exceedingly difficult.” In this context Solberg cites the wisest of all men in the Book of Proverbs: “Three things are too wondrous for me, and four I do not understand: the way of an eagle in the sky; the way of a snake upon a rock; the way of a ship in the heart of the sea; and the way of a man with a young woman.”

Conclusion

In sum, this is a highly puzzling judgment in my view. What is even more puzzling is the consensus around it among the three justices of differing stripes. Somehow it seems that the justices shot the arrow (decided not to intervene) and then recruited the arguments. Arguments also surfaced whose purpose was to allow LGBTQ individuals to shape their identities freely (Vogelman). Nowadays gender identity too is not a clear-cut issue. Would Vogelman say the same in the case of a woman who disguised herself as a man and married a woman? Perhaps we should also allow such a deceiver to shape her gender identity, and therefore the court should not intervene.

A policy of non-intervention by the law in matters of the soul does not seem reasonable to me; but even if one accepts it, it is unclear where the line is to be drawn. The courts do intervene not infrequently in matters of the soul, and the criteria offered here seem neither comprehensible nor well-defined—indeed, downright unfounded.

If one takes into account the characteristic fecklessness of the Chief Rabbinate—which did not annul the kiddushin ab initio—then the situation that arose boxed the court into a very specific corner. The court cannot, or does not want to, annul the kiddushin, and it remains only to treat the case as an ordinary dispute between spouses. The conclusion is that even in this dereliction we can see substantial contributory fault on the part of that fossilized, harmful, and unnecessary institution. Cato the Elder’s speech…

[1] In halakhic terms it is more precise to speak of annulment of kiddushin, but in civil law the relevant term is “marriage.”