Shabbat Parashat Shoftim 5773

P'ninat Mishpat: Haste Makes Waste

Case: A husband sued for divorce and division of property with the claim that his wife has a relationship with another man. Shortly thereafter the two presented beit din with a settlement agreement for beit din’s acceptance, in which the wife gave up her rights to most of the property. Months later, she returned to beit din with the claim that the agreement was an unbalanced one and therefore should be revoked.

Ruling: The woman’s demand is to be denied on both formalistic and intrinsic grounds; we start with the former.

Both in halacha and according to the law of the land, a signed agreement is binding unless a party can prove that they were forced into it or were unaware of its provisions. While the ex-wife claims that she had been under pressure, she has brought no evidence to support this allegation. Both the agreement and the application to have it approved contain a clause stating that the wife read and understood the provisions and accepted them without duress. The dayanim add that they saw that the agreement was not balanced and asked her if she was aware of it, and she answered that she was.

There are different types of duress. One case is when someone’s security or other basic rights are in danger, and as a result they agree to an objectively unfair stipulation. At other times, someone is willing to relinquish what is coming to them in order to obtain something that they really want, where the latter is not a basic right. This is called onsa d’nafshei (a self-inflicted extenuating circumstance), which is not considered as oness in regard to various halachic ramifications (see Tzitz Eliezer XVI:53 regarding a husband who very much wanted his wife to accept a get).

Let us analyze what beit din understands as to what happened. The wife had a boyfriend with whom she wanted to convene a complete and open relationship. Even though the husband and wife had agreed upon a division of property with the intention of having it approved by the secular courts, this would have taken longer than an agreement arrived at in beit din. In her great rush to join her boyfriend, the wife agreed to an unbalanced divorce settlement. Obviously a married woman does not have a basic right to live with a boyfriend and having to wait for the legal matters to be completed is not unreasonable.

There are a few indications that the above was the background of the woman’s decision. First, two days after the get was given, the ex-wife and her boyfriend had already rented an apartment together. Secondly, she requested that her ex-husband receive full custody over their two children, seemingly indicating that she was very keen to put her former life behind her and further her new relationship. Thus, there is strong reason to believe that due to her desire to move on quickly, she agreed to an unbalanced settlement, and she has to live with the results of that decision. 

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