Shabbat Parashat Emor| 5765

Action Based on a Divorce Settlement That Did Not Materialize - Based on Piskei Din Rabbaniim - vol. XV, pp.184-190

Case: A couple lived together under a civil marriage and decided to get divorced. They reached a settlement by which the husband would transfer his share in their apartment to the wife. A date was set at beit din to formalize the agreement. (Beit din was involved because even after a civil marriage, it is customary to require a get l’chumra.) The couple never arrived at beit din. Rather, the husband went abroad after signing a power of attorney to allow the wife to receive full ownership of the apartment. The wife followed him abroad, where they lived as husband and wife for a year and half. Upon returning, the wife used the power of attorney to obtain ownership of the apartment. The two sides are interested at this point to divorce, but the husband has sued to return his share of the apartment. He claims that it was transferred improperly, as it was linked to a divorce that did not materialize. The wife claims that the apartment was a present as evidenced by the power of attorney, and that, in any case, she paid $100,000 for his part. She presented no evidence of payment, and he denies that there was any.

Majority Ruling: There is a signed agreement between the sides, bearing the heading,  “Divorce Settlement,” in which one of the paragraphs obligates the husband to transfer his share in the apartment. Thus, even though the husband gave unconditional power of attorney, it was clearly done within the framework of the divorce settlement. Whenever beit din gives its authorization to a divorce settlement, the sides can act on its various elements only in connection with divorce. We have a rule that formal conditions are not necessary when matters are clearly linked to certain circumstances and understandings (Kiddushin 49b; Rambam, Mechira 11).

  It is difficult to view the transfer as a gift, as the wife claims, when seen within the context of a divorce settlement. The granting of the power of attorney prior to the divorce is readily understandable given that, without it she could have prevented the husband from leaving the country as he desired. The wife’s claims also contradict each other. If the transfer was a present, then why did she pay $100,000 for it? If the wife can substantiate the claim that she paid the money, then that changes the picture dramatically, but, in the meantime, no evidence whatsoever has been presented.

  Regarding the divorce settlement’s validity, since the wife decided to follow the husband abroad and they lived together as husband and wife for a year and a half, the settlement is deemed null and void, and a new one is needed according to terms the couple can reach at this point. But, in the meantime, acting unilaterally on the basis of one of the elements of the old settlement was improper and the share of the apartment must be returned, pending further steps by the sides.