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 Shabbat Parashat Shemot| 5767P’ninat MishpatDivision at Divorce of of a Jointly - Purchased Apartment - Based on Piskei Din Rabbani’im - vol. XII , pp. 179-186
Case: A couple is getting divorced after more than a year of marriage. The marriage was not consummated, according to the husband, because of the wife’s fears; according to the wife, it is because the husband is impotent. The husband presented a medical report denying that claim. The two dispute ownership of an apartment, registered in Tabu (the Land Registry) in the name of both. The wife says that her father paid the whole price and since the marriage was not viable, her side should receive the apartment in full. The husband claims that he contributed a significant minority of the funds. The lower court ruled that there is doubt whether gifts bought to be used by both spouses return to the side that gave them, and the husband who has partial control over the apartment maintains his partial control out of doubt. Furthermore, since we do not know whose explanation of the marriage’s dissolution is correct, the wife cannot extract his share of the apartment from him.
Supreme Rabbinical Court Ruling: The regional court did not investigate the cause that the couple did not consummate the marriage because, in any case, both want divorce. However, they should have done so because it affects the financial matter, as the ruling indicates. If the matter could not have been proven medically, the husband should have had to swear, and in place of an oath, beit din should make a compromise ruling.
In truth, even according to the husband’s claims, he does not to deserve to keep half of the apartment. Even if the woman refused to consummate the marriage, there are no indications that it was out of spite, which would make her a moredet (rebellious person), but due to psychological issues. If so, we should apply the Mabit’s rule (#29) that a present that was bought for use of both spouses goes to the side which gave the present. This is because they gave the present for both to use as a couple, not for the other side to benefit individually.
The regional court doubted the wife’s claim that from the outset, the husband caused the problems, because she allowed the transfer of ownership over a year after the marriage. However, that is not a valid proof; whatever the cause, it was clear by then that the two would not live together. Rather, they intended to complete the financial process as it was initially planned with the intention to solve the legal implications later.
Many sources teach that extra presents that a groom gives a bride are given with the expectation that the marriage will be consummated and are not binding if it is not. The Chatam Sofer (61) equates that which a bride gives a groom to that which a groom gives a bride. Thus, since all agree that the marriage was not consummated, the presents should be returned under all circumstances.
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