This Article considers the weight of extramarital relationships in determining the distribution of family properly. 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.
TABLE OF CONTENTS INTRODUCTION I. PROPERTY DISTRIBUTION AND EXTRAMARITAL RELATIONSHIPS--THE LAWS IN THE UNITED STATES A. The System of Family Property Distribution B. The No-Fault Divorce Revolution C. The No-Fault Divorce Revolution--The Shattered Dream D. Fault in Property Distribution--The Laws in the United States II. EXTRAMARITAL RELATIONSHIPS AND PROPERTY DISTRIBUTION The Normative View A. The Moral Argument B. A Dilemma Facing the Moral Argument C. Lack of Guidelines Leads to Judicial Arbitrariness D. Which Field of Law Should Deal with Extramarital Relationships?. III. ISRAELI LAW-EXTRAMARITAL RELATIONSHIPS A. Extramarital Relationships Under a Joint Property Regime B. Balancing of Resources--The Property Relations Law C. Jewish Religious Law IV. THE MODERN THEORETICAL RATIONALES FOR JOINT PROPERTY A. The Joint Property Principles B. Different Fields of Law and Extramarital Relationships C. The Moral Argument--The Approach of Society Towards Extramarital Relationships D. Proposal for a New Model--The Dominant Cause Model CONCLUSION INTRODUCTION
Extramarital relationships are not a new occurrence in married life. At the beginning of the nineteenth century, they were the most common cause of divorce between spouses, (1) and today they continue to be widespread. (2) Human history has looked upon this phenomenon severely and imposed harsh punishments on the spouse who is the "wrongdoer": "Human civilization has long maintained legal consequences for the marital love triangle. We know, for example, that primitive societies punished adultery with severe penalties. It is also well known that Hebraic law specifically proscribes adultery, in the Seventh of its Ten Commandments.... Classical culture also forbade extramarital affairs." (3) In recent history, the legal system has undergone significant change. (4) In this Article, I review how the law addresses extramarital relationships with respect to the distribution of family property. I examine the theoretical and modern bases for joint property and suggest a new and appropriate model for its distribution. Accordingly, this Article investigates and examines the dramatic transitions that took place within the legal systems of the United States during the last four decades, starting with the exclusion of fault from divorce and ending with the change in the consideration of fault in property distribution. The Article also presents the positions of Israeli law and Jewish religious law on these matters. The analysis will provide a broad perspective and assist in offering a new model for balancing the values that impact consideration of fault in property distribution.
The discussion of extramarital relationships requires conceptual clarification of the term "fault" in family law. This term is primarily used in tort law, where its meaning is inappropriate or unreasonable behavior. In family law, vagueness surrounds this term. Nevertheless, "fault" can, in principle, be divided into three categories: "economic fault," expressed by inappropriate economic behavior, such as lack of contribution to the family effort, waste of the family's assets, etc.; "violent fault," expressed in physical or psychological violence of one spouse towards the other; and, finally, "sexual fault," ex pressed by inappropriate sexual behavior of one of the spouses, primarily a romantic extramarital relationship. This Article devotes its discussion to this third category of fault--specifically, extramarital relationships. A portion of the following discussion is also relevant to other behaviors within a marital relationship, but these behaviors might be treated differently than extramarital relationships. (5)
Clearly, the matter raises not only a technical-arithmetic question with respect to the determination of property distribution. It is also influenced by worldviews, values, and societal perceptions of the family unit and the appropriate commitment to a relationship. In addition, it is inherently impacted by developments that have taken place in the western world. Thus, as long as society views marriage as an important public institution, society will allow itself to determine under which circumstances a marriage can be dissolved and the price that will be paid by the person at fault for its dissolution. In contrast, if society views marriage as a private institution, fault for its dissolution will be regarded more leniently. Either way, it is impossible to examine these issues without first understanding the principles of joint family property and their theoretical rationales.
PROPERTY DISTRIBUTION AND EXTRAMARITAL RELATIONSHIPS--THE LAWS IN THE UNITED STATES
The System of Family Property Distribution
Family law in the United States is included under state law and the independent legislation of each state. (9) In the past, most states distributed the property acquired during a marriage (hereinafter "the family property") according to the traditional principles of common law. (7) Those states treated family property as the separate property of each of the spouses, unless the spouses took steps to transform it into joint property. (8) This system left most of the family property in the hands of the individual who actually purchased it and registered it. (9) In contrast, the system of joint property was established in several states. The joint property regime sets forth the opposite assumption: all profits accumulated by the spouses during the marriage are family property (also referred to as community property). (10) Each spouse is entitled to one-half of such property. In the states that applied this system, joint property is obligatory, so the value of the property, and not the actual ownership, is divided in half. (11) These states use alimony as a means of balancing the property division between the spouses when no property is available. (12)
Later, the "common law" states shifted to a property regime that distributes family property according to a different doctrine called equitable distribution. Equitable distribution requires that the court weigh many parameters (11) and attempt to divide family property in a fair and just way that is not necessarily equal. (14) It certainly would be possible that the portion allocated to a mother who was a housewife and gave up her personal career development would be greater than half of the family property but it could also be less than that. (15) Five of the "joint property" states followed the common law regime's lead and also adopted the system of equitable distribution rather than equal distribution. The system of equitable distribution is the system prevailing today throughout the United States, except for three states that remain under the system of equal distribution. (16) Under some circumstances, the system of equitable distribution makes the payment of alimony after a marriage unnecessary. (17)
However, the consensus among equitable distribution states is not very broad. In states that previously employed joint property, joint property principles still apply during the marriage. In other words, throughout the marriage, the spouse in whose name the property is registered is not entitled to...