Generally, a tort claim is a claim for compensation for damage the defendant caused the plaintiff. A tort claim in divorce, accordingly, is a claim one spouse files against the other in connection with their divorce proceedings, seeking compensation for harm that spouse caused them in the course of the relationship.
This is, by nature, a sensitive and charged lawsuit, above all where the couple has children together. It is worth thinking hard before filing one, and weighing all the consequences it may carry.
If you do decide to claim damages in a divorce, the claim is filed with the Family Court and must rest on a cause of action that can be proven in court.
Typical causes include get refusal, defamation, infidelity, and violence, as explained below.
A divorce damages claim for get refusal
As is known, under Jewish law a get must be granted of the free will of the husband, or accepted of the free will of the wife, being sued in the divorce proceedings.
There are, however, situations in which the Rabbinical Court has concluded that a divorce should be required, yet the defendant spouse refuses to grant it for unjustified, irrelevant reasons: revenge, jealousy, or leverage aimed at improving the terms of the divorce agreement, especially around the division of joint property and support payments.
In such a case, the spouse who unlawfully withholds the get is defined as a get refuser. Usually it is the husband, though there are quite a few cases in which it is the wife who refuses to accept the get.
There are several ways to deal with get refusers, such as sanctions under the Rabbinical Courts Law (Enforcement of Divorce Judgments), 1995, or the imposition of punitive spousal support in the wife’s favor where the husband is the refuser, meaning support payments higher than customary until he agrees to grant the get.
Beyond that, the refused spouse can file a tort claim against the get refuser, claiming compensation for the damage the refusal has caused.
Thus, for example, in Family Court case (Jerusalem) 19270/03 K.S. v. K.P., a binding judgment ordered, for the first time, a husband who had refused his wife a get to pay 425,000 NIS (!) in compensation for his unjustified refusal over 12 whole years. The judgment rested on the tort of negligence: the husband owed his wife a duty of care, and his refusal to grant the get, when it was clear to the parties that the marriage had effectively ended, breached that duty and caused severe emotional harm.
In Family Court case (Jerusalem) 18561/07 S.D. v. R.D., a judgment ordered a wife who refused to accept a get to pay her husband compensation of 400,000 NIS, plus 4,000 NIS for each additional month of refusal from the date of the judgment. The judgment rested on the tort of negligence, on breach of a statutory duty under the Basic Law: Human Dignity and Liberty, and on breach of a statutory duty under Section 287(a) of the Penal Code, which sets a criminal sanction for violating a judicial order.
A divorce damages claim for defamation
Some divorce proceedings are conducted by agreement and with mutual respect. Many others are conducted amid false accusations, slander, lies, and baseless claims that can badly damage the good name of the spouse on the receiving end. Often enough, both spouses defame each other in turn.
In such a case, you can file a defamation claim against the spouse who slandered you and seek compensation on one of these tracks:
- Compensation subject to proof of damage, with no cap on the amount, under Section 7 of the Defamation Law.
- Compensation without proof of damage, up to 50,000 NIS where no intent to harm is proven, or up to 100,000 where intent to harm is proven, under Section 7A of the Defamation Law.
Bear in mind, though, that the Defamation Law gives the defendant various defenses, including the “I spoke the truth” defense, the good faith defense, and the defense covering statements made in the course of a legal proceeding.
Thus, for example, in case 25392-01-19 the court ordered a wife who had sent her husband’s manager text messages defaming him, claiming among other things that he had suffered a psychotic episode, attacked her violently, and spent time with prostitutes, to pay him compensation of NIS 50,000.
And in תמ”ש 314827/96 Anonymous v. Anonymous, a wife who burst into the clinic of her husband, a doctor, and cursed and insulted him with derogatory epithets such as “gay, sexual pervert” and more, in front of everyone present, including his patients, was ordered to pay him 100,000 NIS in damages.
Claiming damages in divorce for infidelity
There is no doubt that infidelity within a marriage can wound the betrayed spouse deeply and cause real damage, so on the face of it one might expect a claim for compensation over infidelity and adultery to lie.
The Supreme Court, however, ruled in case A.A. 8489/12 that infidelity between spouses will not be recognized as a cause of action in tort. The commitment of spouses to the prohibition against adultery belongs to the social, moral, and religious sphere and should not be imported into civil law. The court also cited the fear of flooding the courts with infidelity claims, given how common infidelity is today, and the fear of harming the couple’s children through litigation probing the details of the infidelity between their parents. It added that Israel’s growing community of litigants needs to internalize that “the legal process is not a cure for all pain.”
Claiming damages in divorce for violence
Quite a few marriages collapse under violence between the spouses, most often physical, psychological, or financial violence by the husband against the wife.
Violence between spouses, especially prolonged violence, is without doubt a justified ground for a tort claim, given the many kinds of damage it can inflict on the spouse who falls victim to it: physical and health damage, loss of working capacity, loss of income, psychological harm, post-trauma, and more.
Sometimes such a claim is filed after a police complaint has been lodged and criminal proceedings have run their course against the violent defendant. If the defendant is convicted at the end of the criminal trial, the criminal verdict is admissible as prima facie evidence in the civil damages case against him, both as to its factual findings and as to its conclusions.
In case 48940-07-20 L.S. v. N.S., the court ordered a husband who had abused his wife for 36 years with physical, psychological, and sexual violence, leaving her with post-traumatic stress disorder and a mental disability of 40%, to pay her compensation for pain and suffering and medical expenses in the amount of 160,000 NIS.
