Hope in Marriage

Can a Marriage Contract also include Monetary Penalties for Spouse infidelity?

Yes, it certainly is possible to include fixed and agreed Monetary Penalties for Spouse or Party infidelity, in matrimonial agreements.

Recently couples are entering into a financial agreement, irrespective of whether they are married or share a common life without the approval of the institution of marriage. The financial agreement regulates many economic issues relating to the conduct between the couple during their joint life, and in the case of separation or divorce. The purpose of the financial agreement is to create definitive guidelines and agreed mechanisms pertaining to the management of the common household, and especially in the case of property division at the time of separation.

Examples of financial agreements signed in recent years amongst the world's leading movie stars and celebrities, highlights how widespread and bizarre this phenomenon has become.

In the financial agreement between Justine Timberlake and Jessica Biel it was determined that if Justine betrays Jessica, she would receive an agreed compensation of $500,000.  

In the case of Elin Nordegren, if she returned to live with Tiger Woods, it was stipulated in the financial agreement between them that a compensation of $350 million (three hundred and fifty million dollars) would be paid to Elin in case Woods, God forbid, would again be unfaithful.  

When considering introducing such a clause into the financial agreement, it is important to recognize that the wording of the clause is of critical importance. Most importantly in formulating the clause is the question or definition - what constitutes unfaithfulness? Are "hot texts" in WhatsApp considered betrayal? Is kissing, be it French, Italian, Israeli, or Canadian style considered an act of unfaithfulness? Is an exchange of nude pictures on the net considered to be a violation of the faithfulness clause?

Of critical importance is what level of proof is required in relation to the act of betrayal or unfaithfulness, to activate the monetary compensation clause.

Clearly when the clause is not properly phrased or defined, the couple may find themselves in a lengthy, exhausting, and expensive litigation procedure fighting over whether the accused party has indeed betrayed.

The question is frequently asked whether the judges of the Family and Rabbinical Courts of Israel will indeed enforce such clauses in matrimonial agreements. In the famous judgment given in California in 2002, in the case of Diosdado v Diosdado, the California Court of Appeals ruled that the clause in the matrimonial agreement, contravened California's public policy, (which provides grounds for divorce with no fault nor consent), and therefore refused to enforce it. Since then, however, amid great controversy, most of the competent courts of the US states have ruled that the clause is "kosher" and is not contrary to public policy, and is certainly enforceable, provided both parties agreed to it when signing the matrimonial agreement.

The good news, or bad news, depending on whether one is the betrayed or the betrayer, is that the justices of the competent courts in Israel vehemently respect, approve and enforce clauses that determine monetary compensation ("fines") for unfaithfulness or betrayal. "Freedom of contract" is a governing principle in family courts and generally also in rabbinical courts. Moreover, the rabbinical courts cannot grant a divorce without a cause and a lack of consent, and therefore the section is not supposed to contradict any public policy.  

The specific nature of the monetary compensation could be expressed in different ways and according to the parties' choice and circumstances. It is possible to determine that the compensation will be a fixed and defined monetary amount as highlighted above in the cases of Tiger and Elin and then Justin and Jessica. However, the compensation may take the form where the unfaithful party will leave the betrayed party with the entire apartment, and possibly even its contents, or its share in the joint family business, and so on.