Yitshak Cohen


This Article considers the weight of extramarital relationships in determining the distribution of family property. Under the U.S. legal system, opinions differ as to whether this fault should be a factor in distribution of family property. The controversy is influenced by and arises from an earlier disagreement that followed the “no-fault” revolution of the 1970s, which focused on the role of fault in divorce proceedings. The discussion of fault with regard to property distribution took place without in-depth consideration of the underlying basis and rationales for the principles of joint property and, even more importantly, without relating to their modern, theoretical and current bases. This Article fills this void, clarifies the modern bases for the principles of joint property, and, through them, sheds new light on the role of fault. This analysis produces a new model for examining the relevance of fault in property distribution. In order to clearly and precisely focus on the theoretical rationales for joint family property and the establishment of a new model, this Article also examines the Israeli legal system. At the end of the 1970s, one court decision determined, without explanation, that extramarital relationships are not a relevant consideration in property distribution. Subsequent rulings cited this decision without further discussion. This Article seeks to bridge the gap in the Israeli legal system as well. For that purpose, the Article analyzes the theoretical bases of property distribution principles under both Israeli law and Jewish religious law, including the ways in which these legal systems each relate to extramarital relationships. This Article questions whether the strong position of the Israeli court is consistent with the modern theoretical bases for joint property. These doubts are strengthened by the fact that there is no other practical way to compensate one spouse who has been harmed by the extramarital relationship of the other spouse. Developments and new approaches in family law that are relevant to our discussion include matters such as: divorce without fault but by demand – a relationship terminable at-will; removal of fault as a relevant factor in divorce proceedings; modern theoretical bases for joint property such as the values of labor, reward for work, morality and equality; societal perceptions of the family unit; the realization that the no-fault divorce revolution was detrimental to the family unit; disappointment in tort law as a means for responding to harm resulting from extramarital relationships, and more. In light of these developments, a need has emerged to renew the balance among the relevant values and to offer a new model for weighing fault in family property distribution.

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