Compared to redrawing the route of the security fence or deciding whether the Attorney-General had adequate grounds not to prosecute Prime Minister Sharon, the Supreme Court’s decision last week in a case involving contract law was pretty small potatoes. The Court ruled – reversing the district court -- that a man’s broken promise to divorce his wife and marry his long-time mistress if the latter divorced her husband can be the basis for a damages action.
Yet the Court’s decision bears all the familiar signs of its jurisprudence. The decision turned almost entirely upon the moral values of the justices – moral values more typical of their social class than of the general Israeli population. The common law of contract long ago developed a category of contracts against public policy, which courts will not enforce. For instance, if Reuven offers Shimon $100,000 to kill Levi, no court would entertain a suit by Shimon against Reuven for payment
And similarly courts around the world have always viewed solicitations to divorce or promises to divorce as against public policy. That too was the established law in Israel until last week’s decision. But, says Justice Barak, times have changed. Attitudes towards marriage are not what they once were, and the public interest in preserving the institution of marriage does not outweigh the pain of the jilted mistress.
Barak may be describing the moral views of his social circle, but how does he know that they are those of a majority of Israelis? Is he so sure that marital vows are taken so lightly by the majority of the Israeli public?
He is surely on thin ground in discounting the public interest in strengthening the institution of marriage. The social science literature is replete with evidence of the devastating impact of divorce on children in terms of educational achievement, economic status, ability to subsequently form stable relationships or to trust others.
Barak argues that the institution of marriage will not be strengthened by allowing wayward husbands to lie to their mistresses. But that is surely wrong. A strong public message about the sanctity of marriage is conveyed when courts refuse to entertain suits based on offers to divorce or solicitations to others to do so. There is societal value to upholding the ideal of marital fidelity, even when that ideal often seems to be honored more in the breach than the observance, and certainly by the parties in this case.
Trust is essential to all healthy social relationships. But the man’s broken promise to divorce his wife and marry his mistress, if she first divorced her husband, was not the only breach of trust in this case. Both parties repeatedly violated their own marital vows in the course of their relationship, and both breached the implicit trust of children that their parents will not lightly dissolve their marriage.
Our society has a vital interest in protecting the sanctity of promises between spouses and the implicit promise of parents to their children. Encouraging divorce is hardly the way to do so.
Once again the Court has set itself up as the arbiter of the moral values, or lack thereof, of our society. It is ill-suited for that role.