Tzvi Szajnbrum
To ease the immigration and absorption process for Olim

Legally Breaking the Law

In the Rabbinic Court in Netanya, Israel, Sally was trying to get a divorce (Civil Separation) from her husband and receive her Ketuba as well. In order to be entitled to the money of the Ketuba, a woman must prove that she has a “reason” for a divorce or she will not be entitled for the monetary compensation of the Ketuba.

In this case, Harry (the husband), asked for “Shalom Bait” in other words, claimed he wanted to remain married to Sally, and refused to give her the Get (the Jewish separation). Opposed to Harry’s claim, Sally claimed it was all about money and that Harry was using the Shalom Bait request in the Rabbinic Court to pressure her into signing a less beneficial agreement.

Having no other solution to prove her point, Sally breached Harry’s privacy by entering his email and SMS messages on his cell phone. These messages clearly showed Harry had no real intention of reuniting with Sally either, no desire to have any type of “Shalom Bait”.

Sally asked the Judges in the Rabbinic Court, to accept these messages and emails as evidence. This is called: “the fruit of the poised tree” meaning an evidence achieved from an illegal activity.

Of course, no one can “legally” break the law, but is it possible to “bend” it a little? Would the court consider the breach of the law a small transgression compared to its advantage of using the incriminating evidence against Harry.

The Judges had to decide whether to accept the illegally obtained evidence. When questioned in court, Harry was always vague with his answers.  He was suffering from “selective amnesia”.  He would answer: “I don’t remember” or answered, “It could be”, “maybe” when answering certain questions.

Sally was claiming Harry had been verbally abusive to her for the past two years.  She also said he had threatened her at times.  Sally feels that Harry was trying to get out of the marriage without paying her Ketuba.

The question posed to the court:

Should a fruit from the poisoned tree be accepted as evidence? Should the court accept the evidence brought by Sally in spite of the fact it was obtained by her illegally?

After hearing both sides, the honorable Judges decided to allow the evidence to be used because they felt that Harry was not acting in good faith as a result of his vague answers to direct questions in court.

The balance:

The right of one’s privacy cannot be dismissed lightly.  In this case, the only way to find out the truth was to permit the illegally obtained evidence.  It was the only strong evidence that Sally could use to prove her point.

After reading the messages retrieved on Harry’s cell phone, the Honorable Judges ruled in Sally’s favor.  They agreed that the Get should be done immediately. They decided to leave the decision regarding the amount to be paid according to the Ketuba for a later hearing.

Be wise – be a “mensch”

Be careful with what is on your cell phone.  Incriminating evidence can be used against you regardless of whether or not it was obtained legally.

Do not act like Harry. Do not use the amnesia defense because this is an old tactic that rarely works in court.

But the best advice that this case shows you is to just be a mensch and let it go. Know when your marriage is over and don’t be greedy. It will probably cost you more in lawyer’s fees than you would eventually have to pay your spouse.

Nobody wins in a case like this.  If you have children together, this could hurt your relationship with them.

About the Author
Passionate about helping new immigrants, Tzvi Szajnbrum, Attorney at Law and Notary, founded the Voleh Organization, through which he and a team of volunteers provide “pro-bono” guidance to English speaking new immigrants, helping to ensure their successful integration into Israeli Society. As a former officer in the Israeli army, Tzvi is also able to help lead new immigrants in the right direction regarding the IDF. CEO of The Szajnbrum Group
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