Family Law

President A. Barak

We have before us an appeal, after leave was given, against the judgment of the Tel-Aviv–Jaffa District Court, which ruled by majority opinion that a breach of a promise of marriage that was made by the first respondent (hereafter — ‘the respondent’) to the appellant, when he was married to another woman, does not entitle the appellant to damages, since the promise was contrary to public policy.

Background

1.            The appellant became acquainted with the respondent in the course of her employment at a cigarette factory in Lod, where she worked as a secretary. The respondent worked as the manager of the packing department. When they first became acquainted, the appellant was a young spinster and the respondent was a married man and the father of children. A close relationship developed between the two, which was at first merely a friendship but progressed to intimate relations that continued for several years. The appellant was married (in 1977) and after several years her first child, a son, was born. For most of the marriage, the appellant was separated from her husband. The relationship between the appellant and the respondent was close. The respondent provided for the appellant, he bought her a car and he showered her son with gifts. He had a key to the appellant’s apartment and went there every day. The respondent encouraged the appellant to obtain a divorce from her husband, and even financed legal representation for the appellant in the divorce proceedings. The respondent even suggested to the appellant that she forego maintenance for her son, promising that he would take care of all his needs. He promised her that after she was divorced, he would divorce his wife, and the two of them would start a family together. Although the appellant obtained a divorce from her husband, the respondent’s divorce remained an unfulfilled promise. Notwithstanding, the relationship between the appellant and the respondent continued, and the respondent was possessive towards the appellant and thwarted any attempt on her part to end the relationship. After her divorce, the appellant conceived the respondent’s child, for the fifth time, but unlike the previous four times when she underwent an abortion, this time the appellant wanted to continue the pregnancy. Against this background, the respondent reneged on his agreement to marry her. At the end of 1988, the appellant gave birth to a daughter, who was declared the daughter of the respondent. At this stage, the relationship between the respondent and the appellant was finally severed.

The Magistrates Court

2.            The appellant filed a claim in the Tel-Aviv–Jaffa Magistrates Court, in which she alleged a breach of a promise of marriage, loss of marriage expectations, mental anguish and loss of spiritual and emotional support. The appellant applied to have the respondent found liable to pay her a monthly sum of 1,000 new sheqels until she married or, alternatively, to have him found liable to make a lump-sum payment of a total of 35,000 new sheqels. The Magistrates Court accepted the claim and awarded the appellant the full amount of the alternative compensation that she sought. The Magistrates Court believed the appellant’s witnesses and accepted the appellant’s testimony that the respondent explicitly and implicitly promised her, over a long period of time, that he was about to divorce his wife and marry her, a promise that he eventually breached. With respect to the amount of the compensation, the respondent did not address the sum claimed in his defence, nor did he deny the heads of damage. The court held that the amount claimed was reasonable and consistent with accepted case law, and as aforesaid it found the respondent liable accordingly.

The District Court

3.            The appeal of the respondent in the District Court was allowed by a majority. Justice Y. Gross, with whom Justice Y. Ben-Shlomo agreed, accepted the respondent’s argument that a contract that is made by two married persons, for the purpose of terminating their respective marriages in order to marry one another, is a contract that is contrary to public policy. Relying on a series of judgments from the 1960s (CA 337/62 Riezenfeld v. Jacobson [1]; CA 4/66 Peretz v. Helmut [2]; CA 609/68 Natan v. Abdallah (Ilan) [3]), the court held that ‘the rule, as it was formulated, is that a promise of a married man to marry a woman will be valid, as long as the marriage had fundamentally broken down at the time of the promise. However, in a situation where the plaintiff does not succeed in proving that the marriage had broken down, the court will not uphold such a promise and it will void it for being immoral and contrary to public policy.’ The court said that even today the institution of marriage is one of the few institutions whose sanctity is almost unquestioned by all parts of Israeli society. This leads to the desire to protect the status of this institution. The voidance of marriage agreements by married men allows the married man to try to rehabilitate his marriage. If the married man is bound by his promise to divorce his wife, he would never have such a possibility. In this case, the appellant neither claimed nor brought any evidence to the effect that, when the promise was made, the marriage of the respondent had broken down. Consequently the majority judges held that the promise was void for being contrary to public policy.

4.            Justice M. Rubinstein gave the minority opinion, that there is no basis for distinguishing between a promise of a married man and a promise of a single man with regard to the existence of a cause of action for breach of a promise of marriage. She was of the opinion that such a distinction discriminates against women. A married man should not be given a protected and special status. The judge emphasized that the cause of action does not enforce performance of the promise, but merely awards financial compensation to the injured party, who believed the promise and was injured by the breach thereof. This does not create a risk of harming existing marriages, but only of having to compensate the injured party. The minority judge also addressed the difficulties in evidence that confront a woman who is required to bring proof of the nature of the marital relationship between the man and his lawful wife. With respect to public policy, the judge added the following:

‘Moreover, a promise of marriage made by a married man that is not kept may cause the same damage as a promise by a single man, and I do not think that public policy will be saved by the fact that there will be married men who can with their promises harm women whom they have made miserable, without incurring any risk of being held liable for damages. From the viewpoint of the nature of the promise, it does not matter whether the person who made the promise is married or not;

…

As to the risk to existing marriages, I will add that the quality of the marital relationship is measured, inter alia, also by the way the man, who has a relationship with another woman while he is married, conducts himself. Anyone who ignores the significance of this is establishing a norm that, in effect, creates a privileged status of persons who are entitled to hurt others without suffering any damage themselves.

The case before us shows that public policy and justice demand that we do not discriminate between a man and a woman, and certainly we should not grant an exemption from liability under the law of contracts to a married man (as opposed to a single man) who made a promise that he had apparently [not] intended to keep from the beginning, and found a victim who believed him for ten years.

In summary, giving an exemption from legal risk to a married man will harm public policy more than the theoretical risk that a married man will divorce his wife merely in order to avoid paying damages to a woman whom he promised to marry.’

5.            An application for leave to appeal the judgment was filed in this court. The appellant was given leave to appeal ‘on the question of the legal validity of a promise of marriage given to a woman by a married man.’ Subsequently, the Attorney-General gave notice of his attendance in the proceeding (under s. 1 of the Procedure (Attendance of the Attorney-General) Ordinance [New Version]).

The arguments of the parties

6.            The appellant is asking in her appeal that we adopt the position of the minority judge in the District Court. She adds that the argument that the promise is contrary to public policy is a defence argument of the kind where the respondent has the burden of proof. According to her, in view of the moral flaws in the respondent’s conduct, he is precluded from raising any moral arguments against the appellant. The appellant is further of the opinion that the ‘sanctity’ that the court attributed to the institution of marriage is out of place in view of the extensive recognition of the institution of ‘cohabitation.’

7.            The respondent, for his part, supports the majority opinion in the District Court. He emphasizes the centrality and importance of the institution of marriage in society, which public policy ought to protect. He argues that allowing the claim will seriously harm the institution of marriage, particularly in view of the fact that the appellant also was married during the period when she had a relationship with the respondent. According to him, the appellant’s claim is tainted by a lack of good faith, since she caused the respondent to break the marriage contract and the trust between him and his wife. The respondent warns that should he be held liable for damages, the money will come from the joint family kitty, which may destroy the family unit. Likewise, allowing the claim will harm the freedom of marriage and the dignity of his wife. Alternatively, the respondent asks that we set the damages at a minimal (symbolic) amount. He argues that the appellant did not suffer any real damage, and the compensation that the respondent was found liable to pay was merely for suffering and mental anguish. Moreover, the respondent supported the appellant generously during the years of the relationship.

The position of the Attorney-General

8.            The Attorney-General, who decided to attend the proceeding, explained his position on the general issue of the cause of action of breach of a promise of marriage and on the specific issue being litigated before us: the legal validity of a promise of marriage made by a married man. The position of the Attorney-General is that the contractual cause of action of a breach of a promise of marriage should continue to exist, though in a limited format. In his opinion, within the framework of the limited cause of action, compensation should be awarded only for special, pecuniary loss that is suffered by the injured party as a result of reliance upon the agreement. Non-pecuniary damages, such as emotional damage and mental anguish, should not usually be recognized within the framework of the contractual claim. Restricting the compensation reduces the fear of claims motivated by extortion and revenge, and the fear of harming the freedom of marriage. On the specific issue, the position of the Attorney-General is that we should change the existing rule that an agreement of marriage between parties, where one of them is married, is a contract that is contrary to public policy, unless the injured party proves that the marriage of the party in breach had broken down. The Attorney-General is of the opinion that the relief of damages (in a limited form) should not be denied even in cases where the party that breached the promise was married to another person, and even if his marriage had not broken down when he made the promise, since the distinction between a married man and a single man in this context leads to undesirable outcomes.

9.            I shall begin the consideration of the issue before us with the first question — whether an agreement to marry between two single persons is legally valid. A positive answer to this question will lead me to the second and main question in this appeal — whether a breach of an agreement to marry, where one of the parties was married at the time it was made, gives the other party a right to compensation (ss. 30 and 31 of the Contracts (General Part) Law, 5733-1973).

Agreement to marry between single people

10. A man and a woman agree to marry. Does this consent form the basis of an agreement between the parties to marry? The answer to this question may be found in the law of contracts. If the two parties wish to create a legal-contractual relationship between them, there is nothing in principle to prevent the promises of marriage that they have made to one another from being part of a contract between them (see G. Shalev, ‘Gentlemen’s Agreements,’ 32 Hebrew Univ. L. Rev. (Mishpatim) 3 (2002)). Of course, as in any other case, it is necessary to prove the content of the mutual promises (see HCJ 1635/90 Jerzhevski v. Prime Minister [4]). We must examine ‘circumstantial evidence of the making of the promise, since usually the change of “status” that comes with a promise of marriage does not remain a secret between him and her, but also manifests itself outwardly in signs as to which other evidence can be brought’ (per Justice Landau in CA 460/67 A v. B [5], at p. 160). In this respect, ‘it is sufficient to prove facts that can lead to the conclusion that the parties reached the “basic agreement,” i.e., “to make a life contract with the woman you love” ’ (per Justice Shamgar in CA 647/89 Shifberg v. Avtalion [6], at p. 174, citing the remarks of Justice H.H Cohn in CA 545/77 A v. B [7], at p. 399). If the facts required to establish the mutual promises of the parties are properly proved, the court will recognize the existence of a contract between the parties.

11. The recognition of the contractual validity of a promise of marriage is not free of doubt. It is possible to argue that the agreement to marry is of an intimate nature and falls within the realm of emotion, and therefore it is right to recognize the freedom of each party to be released from his promise, without thereby breaching the right of the other party. According to this approach, while a promise of marriage has a place in the legal system, it is not found in the sphere where the law recognizes a contractual undertaking to honour promises, but it is found in the sphere where the law recognizes the freedom of the individual to honour his promise or not to honour it. The reason for this is based on the fear of harming the freedom of marriage (see P. Shifman, Israeli Family Law (second edition, vol. 1, 1998), at p. 202) and the abuse of the right to marry, reasons that have been extensively addressed by my colleague, Justice Rivlin. Indeed, in several countries it has been established (in legislation or in case law) that a promise of marriage is not binding (see in England — the Law Reform (Miscellaneous Provisions) Act 1970, s. 1; in Ontario, Canada — the Marriage Act, R.S.O. 1990, c. M.3, s. 32; in British Columbia — the Family Relations Act, R.S.B.C. 1996, s. 128; for details of legislation in the United States, see Gilbert v. Barkes [30], at p. 775).

12. Notwithstanding these arguments, I believe that the law cannot be indifferent to a consent to marry and this consent cannot be left in the sphere that grants freedom of decision to each of the parties. There are two reasons for this. First, a breach of a promise of marriage may cause damage to the other party. There is no objective justification for not allowing damages to be awarded for this damage. Freedom of marriage does not give rise to a freedom to cause damage to others. The promise of marriage sometimes leads to reliance and various plans for realizing it. The plan to marry may also have ramifications on other plans of the couple and lead to an adverse change in their position in various respects. Ignoring this reality of life is wrong and unjustifiable. Often a promise of marriage involves substantial financial expenditure. Why should the party who changes his mind be released from paying those expenses? Friedman and Cohen rightly point out that ‘unlike a mere agreement of friendship, a promise of marriage involves property aspects, and it constitutes a preparation for a patently legal relationship, the relationship of marriage’ (D. Friedman and N. Cohen, Contracts (vol. 1, 1991), at p. 370). An infringement of the property aspect of the promise of marriage should lead to ‘property’ consequences, in the form of compensation for the damage suffered.

13. Second, the law of contracts in Israel does not stop on the threshold of the family home. The law does not deny the legal validity of contracts (even implicit contracts) that are based upon emotional foundations and are created in intimate, inter-personal circumstances. Thus, the law recognizes contracts that determine property rights between parties; it recognizes a contract of joint ownership of assets between spouses; it recognizes a contract to have a civil wedding outside Israel and the liability for maintenance that this contract may create (LCA 8256/99, A v. B [8]). G. Shalev has rightly pointed out that the ‘distinction between the family sphere and the business sphere as a criterion for proving the absence or existence of an intention to create a legal-contractual relationship is tendentious, since it assumes ab initio the existence of the intention in those spheres which the law seeks to govern, and its absence in spheres which the law seeks to leave alone… there is no clear reason for exempting a person from his family and social obligations on the ground that he did not intend to create a legal relationship, and at the same time for enforcing business obligations that he undertook outside his family and social environment’ (Shalev, ‘Gentlemen’s Agreements,’ supra, at pp. 22-23). Recognition of the validity of contracts of this type, including an agreement to marry, guarantees proper legal protection even for injured parties in the intimate family circle. A breach of undertakings in the family and marital sphere also leads to expenses and damages. There is no justification for exposing either spouse to damage arising from a breach of the undertaking without the law coming to their aid. The expenses and damages should not be borne randomly by one of the parties (usually the weaker party), but this should be determined by the rules of contractual liability.

14. Israeli law therefore holds that a ‘promise of marriage is… in our legal system, a binding contract’ (per Justice Strasberg-Cohen in CA 5587/93 Nahmani v. Nahmani [9], at p. 508 {27}). In principle, there is nothing in agreements to marry, per se, that prevents the application of the law of contracts to relationships between couples, but the contract is created if the parties intended to create a binding legal relationship between them. The question whether the couple regard themselves as legally bound, or whether the undertaking between them is only in the social or moral sphere, is a question that must be examined on the basis of the circumstances of each case. It is necessary to examine, inter alia, the conduct of the parties, the nature of the relationship and the content of the promises. Of course, reliance on the part of the recipient of a promise and an adverse change of status may be an indication that we are in the contractual sphere (see: Friedman and Cohen, Contracts, supra, at p. 373; Shifman, Israeli Family Law, supra, at p. 206). We must also remember that the contract to marry is a unique type of contract (see Friedman and Cohen, ibid., at p. 368). Thus, for example, the natural remedy for a breach of contract is specific performance. This remedy is not available to the recipient of the promise when it has been breached (whether because of s. 3(2) of the Contracts (Remedies for Breach of Contract) Law, 5731-1970, or whether because of s. 3(4) of that law). The injured party will have to settle for compensation (for pecuniary loss and non-pecuniary damage).

A marriage agreement with a married man

15. A man and a woman agree to marry. If both are single, the agreement creates contractual rights and obligations between the parties. Are these rights and obligations not created merely because one of the parties to the contract is married to someone else? The ‘geometric place’ where an answer to this question may be found is in ss. 30 and 31 of the Contracts (General Part) Law. Section 30 provides:

‘A contract whose creation, content or purpose is illegal, immoral or contrary to public policy, is void.’

                Section 31 provides:

‘… in voidance under s. 30, the court may, if it thinks it just to do so and on such conditions as it sees fit, exempt a party from the duty under s. 21 [i.e., the duty of restitution after cancellation], in whole or in part, and to the extent that another party has carried out his obligation under the contract, it may find the other party liable to carry out the corresponding obligation, in whole or in part.’

Does an agreement to marry, when one of the parties to the agreement is married to a third person, give the recipient of the promise a right to compensation?

16. This question arose in case law in the 1960s (see Riezenfeld v. Jacobson [1]; CA 563/65 Yeger (Plink) v. Flavitz [10], at p. 249; Natan v. Abdallah (Ilan) [3]). It was held that the validity of the agreement is contingent on the question whether, at the time it was made, the marriage with the other spouse had broken down or not. If the relationship between the married spouses had ‘broken down, and they no longer had the same relationship of mutual affection and loyalty that could be harmed by the agreement,’ then the agreement cannot be regarded as immoral (Riezenfeld v. Jacobson [1], at p. 1029 {117}). It was said that ‘when it has been proved to the court that the relationship between a husband and wife has broken down, and the marriage exists on paper only, why should the law protect the fiction of a relationship of trust and affection that characterizes a healthy marital relationship, when that relationship has in practice ended and exists no more?’ (per President Sussman in CA 116/75 Haik v. Sefya [11], at p. 92). On the other hand, if the marital relationship has not reached a crisis, the contract of marriage should be regarded as immoral. The contract is void, and the damage rests where it falls.

17. Forty years have passed since this ruling. The concepts of morality and public policy — this ground was added in s. 30 of the Contracts (General Part) Law — have changed. ‘Public policy’ means the main and essential values, interests and principles that a given society at a given time wishes to uphold, preserve and develop’ (HCJ 693/91 Efrat v. Director of Population Register, Ministry of Interior [12], at p. 778). With the help of ‘public policy,’ the legal system ensures proper conduct in inter-personal relationships. This proper conduct changes with the times (HCJFH 4191/97 Recanat v. National Labour Court [13], at p. 363). ‘Public policy’ is influenced by the social climate. Its content varies from society to society; it changes in a given society from time to time (CA 614/76 A v. B [14], at p. 94). In determining the scope of ‘public policy,’ an internal balance is required between conflicting values and interests (CA 6601/96 AES System Inc. v. Saar [15], at p. 861; CA 294/91 Jerusalem Community Burial Society v. Kestenbaum [16], at p. 534; Recanat v. National Labour Court [13], at p. 364).

18. What are the conflicting values and principles that shape public policy in the matter before us? On the one hand, we have the institution of marriage and the social centrality of the family unit. By virtue of this consideration, the obligation given by a married man to marry should not be recognized as valid. On the other hand, we have the social outlook that promises should be kept, and whoever breaches his promise and causes damage can expect to be found liable for this. In my opinion, an internal balance between these values leads to the conclusion that the agreement to marry, even if one of the parties is married when it is made, is not contrary to public policy and is not void as such. There are several reasons for this.

19. First, since the 1960s a significant change has occurred in the public perception of morality and public policy. Significant changes have occurred in the social attitude towards the dissolution of the bonds of matrimony and the phenomenon of divorce. The rule that promises of marriage by a married person are contrary to public policy was formulated in English law at the beginning of the twentieth century (Spiers v. Hunt [32]; Wilson v. Carnley [33]). This rule was based on the perception that a termination of the relationship with the lawful spouse for a different partnership that involves a promise to divorce and to marry someone else is completely wrong. The courts feared that recognizing the validity of the promise would encourage immoral conduct (adultery) and even criminal conduct (bigamy). The rule was adopted in Israeli law in a limited form, by focusing on the public interest in upholding the institution of marriage as a basic social unit. An agreement that is intended to harm this, to destroy family life or to ‘promote’ divorce was rejected on the grounds of public policy (Riezenfeld v. Jacobson [1], at p. 1027 {114-115}). In Riezenfeld v. Jacobson [1], Justice Silberg wrote that ‘accepted concepts of morality… regard extra-marital relations between a man and a woman as improper and vile’ (ibid., at p. 1021 {107}).

20. There is no doubt that preserving the family unit is a part of public policy in Israel even in the present. It is in the interest of society to support stable marriages. The institution of marriage is central to our society. Against this background, I said in one case that ‘within the framework of the family unit, the preservation of the institution of marriage is a central social value, which constitutes a part of public policy in Israel’ (Efrat v. Director of Population Register, Ministry of Interior [12], at p. 783). Notwithstanding, over the years social perceptions have changed with regard to the dissolution of the bonds of marriage and the phenomenon of divorce. There is a recognition of the fact that divorce has become part of the reality of life (CFH 2401/95 Nahmani v. Nahmani [17], at p. 792 {487}). Property agreements made before marriage, which deal with the possibility of divorce, are not considered today to be contrary to public policy. Explicit divorce agreements are also given validity (CA 3833/93 Levin v. Levin [18]). Even the abhorrence of extra-marital relationships does not reflect the attitude of Israeli society today, and the laws applying to cohabitees — which were developed jointly by the legislature and the court — prove this. The old rule, which makes the validity of the contract conditional upon the question whether the relationship between the parties has broken down or not seems to me inconsistent with the attitudes of Israeli society today.

21. Second, the institution of marriage will not be protected by sacrificing the rights of a victim of a breach of a promise of marriage. The injured party should not be made to pay the price of socio-legal support of the institution of marriage. Moreover, when a married person promises to obtain a divorce and to marry another, it may be assumed that the marital relationship is a weak one. It certainly does not have the mutual loyalty and affection that characterize this relationship. It is difficult to justify strong protection of the law for this weak relationship (see Haik v. Sefya [11]). It should be remembered in this context that making enquiries as to the ‘stability’ of the marriage requires an invasive examination of the family life of the married couple. This invasive enquiry into intimate information is likely to cause considerable and unnecessary suffering to all the parties concerned, and it appears to be preferable to adopt the presumption that when a married person undertakes to obtain a divorce and to marry a third party, his marriage at that time is not ‘stable.’

22. Third, it is not the recognition of the validity of the contract that harms the marital relationship, but it is the fragile marital relationship that leads to making the contract. It is difficult to see how immunity for the married man, who establishes interpersonal relationships outside the framework of marriage and bandies about promises, contributes to the strengthening and stabilization of the institution of marriage. The married person who chooses an interpersonal relationship outside of marriage does so of his own free will, and this should in no way affect the legal status or the rights of any of the litigants (cf. CA 416/91 Maman v. Triki [19], at p. 659). The destruction of the marriage, like any other harm to the lawful spouse, derives from the conduct of the married person. This conduct, and not the award of damages, is what undermines the institution of marriage. This conduct causes a double wrong: granting an exemption from (contractual) liability with respect to this conduct merely reinforces the wrong that has been caused, without serving a real social purpose. In a certain sense, the exemption even gives approval to such conduct, in so far as it imposes the losses and the risks upon the other party, in their entirety.

23. Fourth, the duty of keeping one’s word and keeping promises is also a part of public policy (G. Shalev, The Law of Contracts (second edition, 1998), at p. 367, and the references cited there). We must exercise caution when denying the validity of an agreement and exempting a party from an undertaking that he has taken upon himself (Levin v. Levin [18], at p. 875). Judge Witkon rightly said in Riezenfeld v. Jacobson [1] that ‘the party that relies upon the invalid aspect of his promise and seeks to escape it does not do so out of unselfish motives, and usually the wrongdoer ends up benefiting’ (ibid., at p. 1027 {114-115}). The possible harm to the institution of marriage is countered by the legitimate interests of the parties themselves and the public interest in the honouring of undertakings.

24. My conclusion is therefore that an agreement to marry, where one of the parties thereto is a married person, is not void for being contrary to public policy. Of course, there may be special cases where an agreement that is based upon a promise of marriage may be contrary to public policy, when, for example, there is intentional harm to a third party. Thus an arrangement that includes a fraudulent transfer of assets from the legal spouse to the future spouse, for the purpose of harming the property rights arising from the divorce, may be found to be invalid for this reason. This is not the normal position, in which an unstable relationship between a married couple leads to making the contract with the unmarried person, and it is not the recognition of the validity of the contract that will lead to the breakdown of the relationship; it is merely its outcome. Indeed, a solution of the problem is not simple. Justice Witkon rightly pointed out that ‘we have before us a question that is really a sociological, not a legal, question’ (Riezenfeld v. Jacobson [1], at p. 1026 {113}). It would be best if the legislature were to consider this matter.

25. In obiter, I will add that even had I thought that the agreement to marry was void under s. 30 of the Contracts (General Part) Law, there still would be no justification for denying it all legal significance. The results of a contract being void were changed unrecognizably by the addition of a new provision (s. 31). According to the new law of contracts, the damage does not rest where it falls. According to the approach of the District Court, the fact that the agreement to marry is contrary to public policy automatically leads to the denial of any legal remedy to the appellant. I cannot agree with this determination. The approach of the District Court is inconsistent with the new law of contracts, which provides a new legal arrangement with respect to improper contracts. In view of the new arrangement, the determination that an agreement is contrary to public policy does not exempt the court from examining the remedies that are available to the plaintiff within the framework of s. 31 of the law. According to the new rule, the court may, ‘if it thinks it just to do so,’ hold the maker of the promise liable to carry out his undertaking, if the other party has performed his obligations under the contract (HCJ 6231/92 Zagouri v. National Labour Court [20], at p. 784). If the contract is unenforceable, the court may award damages by virtue of its authority to give validity to an obligation, validity that entails a liability for damages for the breach involved in its non-implementation (see O. Grosskopf, ‘An Improper Contract,’ in Friedman and Cohen, Contracts (vol 3, 2004), at p. 624). It follows that with respect to a promise of marriage, the court may find a party that does not honour his undertaking liable to pay damages, if the other party did everything in order to uphold his part of the contract.

From the general to the specific

26. It was agreed between the appellant and the respondent that they would each end their legal marriage, and that they would marry each other. The circumstances of the case all indicate that the couple intended to create a legal-contractual relationship between them. The marriage plan was not a secret shared only by the couple. Their colleagues at work and those around them knew of it. The respondent gave expression to his undertaking to the appellant on various occasions. Thus, for example, the attorney who represented the appellant in the divorce proceedings (who was retained by the respondent) testified that he found himself involved in one of the quarrels between the couple that occurred because of the respondent’s failure to keep his promise to divorce. The respondent begged the attorney to persuade the appellant not to leave him and made an undertaking in his presence that within six months, at most, he would divorce his wife and marry the appellant. The marriage plan was the basis for the appellant’s divorce, which was obtained with the encouragement and funding of the respondent. The appellant relied upon the marriage plan, she gave up her status and her rights as a married woman. All the circumstances clearly indicate that the joint plan of marriage was not confined merely to the social sphere. The plan also moved into the legal sphere, and a binding contract was made between the respondent and the appellant.

27. This contract is not contrary to public policy. The mere fact that the respondent was a married man when he undertook to divorce his wife and marry the appellant does not lead to the voidance of the contract on the grounds of public policy. The respondent did not argue that the marriage plan included an intention of harming a third party, or that there were other special circumstances that are contrary to public policy. In fact the respondent did not even show that the promise of marriage resulted in a deterioration in his relationship with his lawful spouse. It may be assumed that before the promise there had already been a deterioration in the relationship of fidelity and mutual affection that characterizes a married couple. In any case, the appellant should not be blamed for the harm to the respondent’s wife or family, in so far as there was any such harm. Certainly the appellant should not pay the price for protecting the respondent’s family unit. Since the respondent did not keep his promise to the appellant, there is no justification for exempting him from legal liability. The appellant is therefore entitled to compensation for the pecuniary and non-pecuniary damages that she suffered as a result of the breach of the contract. With regard to the scope of the compensation, it was not brought before us (since it is not included in the application for leave to appeal), and there is no basis for considering it.

28. It should be noted that the relief of damages would be available to the appellant even if I thought that the agreement to marry was void under s. 30 of the Contracts (General Part) Law. Section 31 of the law is entirely relevant to this case. The appellant fulfilled her obligations under the agreement. She obtained a divorce from her husband, with assistance provided to her by the respondent, and as a single woman she was willing at any time to marry the respondent and sacrificed the best years of her life to that end. She had a lengthy relationship with the respondent. Justice demands — and it is hard to imagine a case more extreme than the case before us — that the appellant should be compensated for her damage.

The result is that the appeal is allowed; the judgment of the District Court is set aside, and the judgment of the Magistrates Court is reinstated. The first respondent shall be liable for the appellant’s costs in a total amount of 10,000 new sheqels.

 

 

Justice E. Rivlin

1.            This appeal focuses on the nature of the cause of action that is usually referred to as ‘breach of a promise of marriage.’ The discussion of this cause of action necessarily involves social and cultural outlooks, and prima facie it requires the court to examine emotional relationships in a contractual context.

The appeal raises two fundamental questions with respect to this complex legal cause of action. The first and the more central and general question concerns the scope of the cause of action for a breach of a promise of marriage in Israeli law and the nature of the reliefs that it can make available to the litigant. The other question, which is more limited in its scope of application, concerns the possibility of a claim based on a promise of marriage that was made by a man when he was still married to another woman.

2.            I will begin with the second question, because, unlike with the first question, I agree with the remarks of my colleague, President Barak, and therefore I do not need to say anything further on it. My colleague, President Barak, explains well why there is no basis for continuing to hold that a promise of marriage is void for being contrary to public policy, if it was made by a married man whose marriage has not completely broken down. I agree with my colleague’s opinion on this point, and also with the reasons that led him to adopt it.

3.            With respect to the other issue, concerning the general validity of the cause of action of a breach of a promise of marriage, my opinion is different.

The contractual cause of action that is based on a breach of a promise of marriage was adopted by Israeli law from English common law. Following traditional English case law, once a plaintiff has proven the basic elements of the cause of action, the plaintiff is entitled to compensation both for ‘special’ pecuniary loss that was suffered as a result of the breached promise, and also for the ‘general’ damage that was suffered. The general damage is comprised of the emotional damage that prima facie was suffered as a result of the breach of the promise. This is the law that was adopted in Israel. My colleague, President Barak, described the distaste that this cause of action, which is based upon a breach of a promise of marriage, creates in modern law. This distaste is clearly stated in CA 461/64 Tamsit v. Fahima [21], at p. 131. Acting President Silberg maintained in that case that an action for the breach of a promise of marriage is —

‘… one of the kinds of action that are not especially popular… such an action almost always contains something distasteful, because it is based on the premise that the fiancé or fiancée should have married the other partner, merely because of the promise that was made, even though there are no feelings of love between them. Even the ancient Romans regarded such an action as contrary to public morality… but what can we do when the common law regards these actions as valid contractual actions, and our courts have also adopted this approach.’

Justice Berinson also agreed with this position in Natan v. Abdallah (Ilan) [3], at p. 464:

‘It is well known… that the courts do not regard actions for a breach of a promise of marriage in a favourable light.’

4.            Several reasons have been advanced against the very existence of a cause of action for a breach of a promise of marriage. The first and main reason was mentioned in the aforesaid remarks of Vice-President Silberg. This reason concerns the freedom of marriage. It is undisputed that the decision to marry must be a free and voluntary decision. No one believes that a man who wanted to marry a woman, or a woman who wanted to marry a man, and then underwent a change of mind, should be compelled to keep his or her word. Quite the reverse; I think that society has an interest that such a marriage — which appears doomed to failure from the outset — should not take place. There is therefore a difficulty in the existence of the possibility that a man or a woman may be sued because he or she decided not to marry. Admittedly, it may be assumed that the liability to pay compensation as a result of such a claim is not in itself a deterrent, and it will not induce someone to marry against his will. But the very liability to pay compensation is an expression of a socio-legal outlook that a person who goes back on his word in such matters is acting wrongly, whereas in practice, as we have said, the accepted outlook in society and in the court is that someone who changed her mind, and no longer wishes to build a future together with the person who was just recently her chosen partner, is entitled, and maybe even obliged, to follow her heart. This contradiction is regarded as undesirable. Indeed, there are many who recommend that we develop legal tools that are different from the cause of action of breach of a promise of marriage, in order to protect the interest of the recipient of the promise.

The scholar P. Shifman gives two additional reasons that strengthen the conclusion that the contractual cause of action of breach of a promise of marriage should be cancelled (Shifman, Israeli Family Law, supra, at pp. 200-205). The first of these is the fear of abusing the action for blackmailing the other party. The second is the sex-bias that has historically been involved in this cause of action, which is almost exclusive to women (in the 180 years that preceded the cancellation of the cause of action in England, no action is known to have been filed by a man: ibid., at p. 201; a study of case law shows that the number of actions of this type is also negligible in Israel, the United States (in this regard, see also Gilbert v. Barkes [30], at pp. 774-775) and France (in the last forty-five years, only one action filed by a man for breach of a promise of marriage has been heard by the Cour de Cassation (Cour de Cassation, 4 Octobre 1965, no. 507 [35]); his claim was dismissed)). Therefore it appears that the cause of action is often abused in order to perpetuate the outlook that women, unlike men, need marriage in order to fulfil themselves.

5.            Ultimately, it appears that the main difficulty with the cause of action of breach of a promise of marriage lies in the attempt to impose the law of contracts on a situation in which it is of questionable suitability. This difficulty raises doubt as to the very nature of a promise of marriage as a contract.

This was discussed by Justice Kister in CA 401/66 Marom v. Marom [22], at p. 679:

‘It is questionable whether [an agreement to marry is] a contract for which damages can be awarded at all. Surely it is hardly logical that a marriage agreement between a man and a woman is treated the same as an agreement for the supply of agricultural produce.’

It is easy to demonstrate the difficulty involved in analyzing the institution of a promise of marriage with contractual tools. Consider the case of a woman who made a promise of marriage and then discovered that, contrary to her previous belief, she has no feelings of love for the man to whom she gave the promise. Should it be said that she made a fundamental mistake that allows the rescission of the contract under s. 14 of the Contracts (General Part) Law, or is this perhaps ‘a mistake as to the whether the transaction is worthwhile,’ which does not grant a right of rescission (s. 14(d))? Can the woman who gave the promise argue that the performance of the contract has been frustrated under s. 18 of the Contracts (Remedies for Breach of Contract) Law or, alternatively, is it possible, in view of the understanding of the parties (s. 25 of the Contracts (General Part) Law) to interpret the contract — the promise of marriage — as a conditional contract (s. 27) where the condition is the existence of feelings of love? If so, can the woman who gave the promise and then stopped loving the recipient of the promise build a case based on the condition, when she herself was ‘responsible’ for its frustration (s. 28 of the Contracts (General Part) Law)? (For a discussion of the defects in the making of a contract of a promise of marriage and the possibility of making it conditional, see Maman v. Triki [19]).

And what of a case where the man who gave a promise discovers that, contrary to his previous belief, the woman to whom he gave the promise does not have any feeling of love to him? Is he the victim of a misrepresentation? Or perhaps we can say that by concealing information from the man who gave the promise, the recipient of the promise acted in bad faith in negotiations (s. 12 of the Contracts (General Part) Law)? Whoever hears this will laugh and shy away from the law of contracts.

It can simply be said that ‘it is difficult to apply contractual criteria based on the existence of commercial standards to the emotional sphere.’ These remarks do indeed lead the scholars D. Friedman and N. Cohen to the conclusion that ‘a promise of marriage is a problematic contract that lies on the very edge of justiciability’ (Friedman and Cohen, Contracts, supra, at pp. 368, 369).

6.            In most western jurisdictions, the cause of action of breach of a promise of marriage has been cancelled or restricted. One authority describes this cause of action as follows:

‘It is a barbarous remedy, outgrown by advancing civilization and, like other outgrown relics of a barbarous age, it must go’ (H.F. Wright, ‘The Action for Breach of the Marriage Promise,’ 10 Va. L. Rev. (1923-1924) 361, at p. 382).

Even in England, from which we derived this special cause of action, it was determined in s. 1 of the Law Reform (Miscellaneous Provisions) Act 1970 that an agreement to marry is not deemed a legally enforceable contract, and that a breach of such an agreement does not give rise to a cause of action. The act regulates conflicts concerning property aspects of a promise of marriage, by applying, in s. 2(1), some of the provisions governing the assets of married couples to certain assets of the couple, and by providing, in s. 3(1), a mechanism for the restitution of gifts. It should be emphasized that this restitution does not depend at all on the identity of the person who ‘broke’ the promise — even the person who broke the promise of marriage is entitled to benefit from the restitution (see further N.V. Lowe, G. Douglas, Bromley’s Family Law (ninth edition, 1998), at pp. 24-28; S.M. Cretney, J.M. Masson, Principles of Family Law (sixth edition, 1997), at pp. 184-185; Halsbury, The Laws of England, (fourth edition (reissue), 2001), vol. 29(3), at pp. 37-38).

7.            Like the legislature in England, the legislature in Australia has also repealed the possibility of filing an action for damages for a breach of a promise of marriage, while retaining the possibility of an action for the restitution of gifts (s. 111A of the Marriage Act 1961). Similar legislation has been adopted in several Canadian provinces: in Ontario (s. 32 of the Marriage Act, R.S.O. 1990; under s. 33, gifts shall be returned irrespective of fault); and also in British Columbia (s. 123 of the Family Relations Act, R.S.B.C. c. 128). In Manitoba both the contractual cause of action for a breach of the promise and the cause of action for fraud with regard to a promise of marriage were repealed (s. 4 of the Equality of Status Act, C.C.S.M., c. E130). In Alberta, the cause of action of breach of a promise of marriage was not repealed, but the statute provides that the breach can give rise to compensation only for property damage (s. 101 of the Family Law Act, S.A. 2003, c. F-4.5); under s. 102 of that statute, gifts shall be returned irrespective of fault.

8.            In the United States, most states have repealed the cause of action of breach of a promise of marriage in legislation (these statutes, which were enacted from 1935 onwards, are called ‘Heart Balm’ statutes). This legislation has frequently been interpreted as also preventing the filing of an action on grounds that are not contractual in nature — such as fraud and negligent misrepresentation — based on a promise of marriage (see: 12 Am. Jur. 2d (Breach of Promise), §§13-14; ‘Note: Heartbalm Statutes and Deceit Actions,’ 83 Mich. L. Rev. (1984-1985) 1770). In two states, the cause of action was cancelled in decisions of the court (in Utah — Jackson v. Brown [31], and in Kentucky — Gilbert v. Barkes [30]), while retaining the other civil causes of action. The courts in both states explained that the property damage of the recipient of the promise can find relief in contractual theories, whereas the emotional damage can be addressed by the tortious causes of action of fraud or negligent misrepresentation, in appropriate cases.

9.            In France, the cause of action of breach of a promise of marriage existed for hundreds of years. Its origins were in German customs that in time entered Canon law (P. Weidenbaum, ‘Breach of Promise in Private International Law,’ 14 N. Y. U. L. Q. Rev. (1936-1937) 451, at pp. 451-452). After the revolution, which led to the removal of religious traditions from the statute books, the cause of action did not appear in the Civil Code. The courts interpreted this failure to mention the action as its cancellation, because it harmed the freedom of marriage. Notwithstanding, it was held that this did not prevent the existence of a cause of action in torts, based upon the breach of promise (see, for example, Cour de Cassation, Civ., 30 Mai 1838, B. c. C. [36]). In order to show a cause of action in torts under ss. 1382 and 1383 of the Civil Code (which are the sections that govern the law of torts in France), a plaintiff is required to prove that there was fault in the way in which the promise was breached; in other words, the breach itself is insufficient in order to find the party in breach liable for damages: the breach must be accompanied by a faute delictuelle or quasi-delictuelle (see, for example, Cour de Cassation, Civ. 1, 31 Janvier 1961 [37]; Cour de Cassation, Civ. 2, 7 Juin 1967, no. 210 [38]; Cour de Cassation, Civ. 1, 22 Juillet 1964, no. 412 [39]). In these cases, the court therefore focused on the question whether the conduct of the party in breach was unreasonable — whether it was a rupture abusive de promesse de mariage (for examples of cases where it was held that the breach of marriage was without fault, see: Cour de Cassation, Civ. 1, 19 Juillet 1966, no. 443 [40]; 92-21767 Cour de Cassation, Civ. 1, 4 Janvier 1995 [41]; by contrast, for examples of cases where the party in breach was held liable to pay tortious damages, see: 71-13001 Cour de Cassation, Civ. 2, 18 Janvier 1973, no. 25 [42], at p. 19; Cour de Cassation, Civ. 1, 9 Octobre 1961, no. 440 [43]). The issue of gifts that were given in connection with an intended marriage is regulated in s. 1088 of the Civil Code, which provides that such gifts shall be cancelled if the marriage plans are not realized.

10. In Germany, a breach of a promise of marriage is not a cause of action (s. 1297(1) of the BGB), unless no reason was given for the breach (s. 1298). In the latter case, it is only possible to sue for compensation for the damage that was suffered as a result of reasonable expenses that were incurred and reasonable undertakings that were made in anticipation of the marriage. Gifts that were given shall be returned, irrespective of this action, based upon the laws of unjust enrichment (s. 1301 of the BGB). Compensation for emotional damage was recognized in the past, only in a case where, as a result of the promise, a ‘pure’ (unbescholtene) woman was seduced into having sexual relations (s. 1300). This section was recently cancelled.

In Spain, an unjustified breach of the promise gives rise only to the right to restitution for the expenses that were incurred and the undertakings that were made for the purpose of the promised marriage (ss. 42 and 43 of the Código Civil). In Switzerland, whereas in the past the Civil Code allowed an action for emotional damage in special cases of a breach of a promise of marriage, the Civil Code now provides that an action is only possible for a contribution to expenses and losses of income that were caused by the intended marriage (s. 92), as well as an action for the restitution of gifts (s. 91). Such actions are not affected by the identity of the party in breach.

11. This survey of comparative law, although not comprehensive, shows that even in other legal systems, like in Israel, dissatisfaction has been expressed as to the existence of the cause of action for breach of a promise of marriage. This approach has led to the cancellation of the cause of action, or at least to a significant restriction thereof, throughout the western world. Even in Arab countries, where personal law is based on Islamic law, a breach of a promise of marriage itself gives rise, at most, to a right to the restitution of gifts (see the survey included in J.J. Nasir, The Islamic Law of Personal Status (third edition, 2002), at pp. 46-48.)

As for me, I am of the opinion that the time has indeed come to cancel this contractual cause of action, as it is recognized in Israel today, while ensuring a possibility of a no-fault action for property damages that are suffered as a result of a breach of a promise of marriage. These damages are likely to include damages for reliance or expenses that were incurred in preparation for the marriage, as well as wedding gifts that were given before the marriage (with respect to gifts, see D. Frimer, ‘The Restitution of Engagement Gifts for a Breach of a Promise of Marriage, in view of the New Civil Legislation,’ 10 Hebrew Univ. L. Rev. (Mishpatim) (1980) 329). It is also possible that we should consider the possibility of adopting the system accepted in France, and now also in other countries, whereby the compensation for a breach of a promise of marriage is awarded, if at all, in the sphere of torts. Today in Israel, tortious damages for breach of a promise of marriage are awarded only in cases where the tort of fraud is proved (see, for example, Natan v. Abdallah (Ilan) [3]). Given the basic elements of the tort, which are set out in s. 56 of the Torts Ordinance [New Version], the plaintiff is required, in order to succeed in his action, to prove that already when he gave the promise, the promissor intended not to keep it.

In this respect, perhaps we ought to extend the possibility of filing an action also to cases where the promise of marriage does not amount to fraud, but it does involve false representation (ss. 35 and 36 of the Torts Ordinance [New Version]), i.e., cases where the promissor acted unreasonably, and there are conditions that give rise to a duty of care for false representation. This is the position of the scholar G. Shalev, who calls for abandoning the contractual cause of action and replacing it with a tortious cause of action, in order to protect the principle of freedom of contracts and the freedom of the parties to enter into a relationship that is outside the law (Shalev, ‘Gentlemen’s Agreements,’ supra, at pp. 29-30).

12. The problem is, as this court has said on more than one occasion, that such a cancellation of the contractual cause of action, in view of its established position in case law, must be made in legislation (Shifberg v. Avtalion [6], at p. 176; Maman v. Triki [19], at p. 657). But does this mean that we are unable to do anything in order to alleviate the force of the case law rule that no longer appears reasonable to us? Not necessarily.

In my opinion, a proper interim solution would be to determine that the damages awarded for breach of a promise of marriage are restricted to pecuniary loss (this was proposed by Justice Mazza in Shifberg v. Avtalion [6], at p. 176, which followed remarks made by Prof. Shifman in Israeli Family Law, supra, at p. 204. Even before this, a similar position was expressed by Prof. G. Tedeschi in ‘Notes on the draft Individual and Family Law,’ in G. Tedeschi, Studies in our Private Law (1959) 264, at pp. 282-283). Counsel for the State also agrees with these remarks in her summations.

13. The main difficulty with a remedy involved in the cause of action for breach of a promise of marriage lies in the compensation that is awarded for non-pecuniary damage. Therefore, it is no wonder that in most countries where the cause of action has been preserved, it has been restricted to pecuniary loss.

While no one denies that the law cannot remain indifferent to the property aspects of the breach of a promise of marriage (Friedman and Cohen, Contracts, supra, at p. 370), it is very questionable whether ordinary legal tools are capable of dealing with the emotional damage that is created in and as a result of emotional-personal relationships:

‘The natural sphere of the law of contracts is the sphere of commerce. The spiritual or emotional province falls outside the traditional sphere of the law of contracts. Emotions are not a commodity. One cannot trade in them… in principle, emotions are not a proper subject for a contract’ (N. Cohen, ‘Status, Contracts and Inducing a Breach of Contract,’ 39 HaPraklit 304 (1989-1991), at p. 317).

(For the opposite position, cf. H. Keren, The Law of Contracts from a Feminist Perspective [64], at pp. 97-134, 397-403).

14. For the sake of illustration, as we know, the law does not provide a cause of action for emotional damage involved in divorce proceedings (see and cf. CA 264/77 Dror v. Dror [23], at p. 832), even though in many cases the dissolution of a long-term marriage involves emotional damage that is far greater than the emotional damage that is caused as a result of a breach of a promise of marriage (and therefore there are those who go so far as to explain the conclusion that compensation should not be awarded for the emotional damage from a breach of a promise on the grounds that the breach prevented the realization of greater emotional damage, had the promise been kept (N.G. Williams, ‘What to Do When There’s No “I Do:” A Model for Awarding Damages Under Promissory Estoppel,’ 70 Wash. L. Rev. (1995) 1019, at pp. 1055-1056). Similarly, there is no remedy in our legal system for someone who has suffered emotional damage from an adultery committed by that person’s spouse (see G. Tedeschi, ‘A Crisis in the Family and the Proponents of Tradition,’ Legal Studies in Memory of Abraham Rosenthal (G. Tedeschi ed., 1964) at pp. 291-295). As a rule, the separation of persons who had a romantic relationship, which is a common event that undoubtedly involves strong feelings, does not in itself give rise to any legal remedy (even though it is perhaps possible for damages to be awarded in the event of a sudden eviction from the home: CA 805/82 Versano v. Cohen [24]). How is a breach of a promise of marriage worse than these cases? And why is it precisely the dissolution of a personal relationship in which such a promise has been made that entitles a person to damages? It appears that here we have a distinction without a difference.

15. Admittedly, the law, as my colleague President Barak says, does not stop on the threshold of the family home, but the law refrains from trying to regulate emotional relationships. The law has difficulty providing a remedy for injured feelings and an aching heart. The spouse who is unfaithful, adulterous, breaks up a relationship without justification is deserving of moral, religious or social condemnation, but the injured party will have difficulty finding a remedy in law.

For these reasons, it seems to me that in a contractual claim for a breach of promise of marriage the court should exercise the discretion given to it under s. 13 of the Contracts (Remedies for Breach of Contract) Law (and see Shalev, Contracts, supra, at p. 586), and refrain from awarding compensation for non-pecuniary damage.

16. In my opinion, the essence of the matter is that where a breach of a promise of marriage has been proved, compensation should be awarded only for pecuniary loss that was suffered as a result of the breach. With respect to such an action, it makes no difference, in my opinion, whether the promise was made between an unmarried couple or it was made between a couple where one of them was married. Therefore I believe that no argument should be heard against an action that is filed in the latter instance to the effect that the promise is contrary to public policy. With respect to the non-pecuniary damages, the remedy for this can be found solely within the framework of a claim in tort, if and in so far as the basic elements required for this exist in the case under consideration.

Let us turn from these principles to the case before us. Indeed, the claim of the appellant should have been denied, but not for the reasons given by the District Court. The appellant based her claim on a contractual cause of action, and the compensation that she sought was entirely intended to repair the general, emotional damage that she suffered. The appellant did not argue the existence of a tortious cause of action, and since the hearing in the Magistrates Court focused only on the question whether the promise was given by the respondent, nothing was proved with respect to the circumstances that surrounded the giving of the promise and its breach, and in any event no tortious cause of action was considered. Indeed, the leave to appeal that the appellant received was limited solely to the question of the ‘legal validity of a promise of marriage that was made to a woman by a married man,’ but this restriction that was imposed on the appellant actually caused procedural harm to the respondent, because of the difficulty in considering other questions that have an impact on the liability. In any event, even on the merits the conclusion that I have reached — that a promise of marriage has contractual validity with limited consequences — falls within the scope of the legal dispute, as it was defined when leave to appeal was granted. Consequently, in my opinion there is no alternative but to deny the appeal.

 

 

Justice A. Procaccia

I agree with the opinion of the President and all his reasons. I wish to add the following remarks:

Breach of a promise of marriage as a contractual cause of action

1.            From its very inception, Israeli law regarded a promise of marriage as a binding contract that gives rise to a cause of action for its breach. This was done by virtue of the rules of English common law, which were absorbed by virtue of art. 46 of the Palestine Order in Council, 1922 (CA 129/42 Jarrous v. Adas (1942) [29]; CC (TA) 1279/54 Berghoiz v. Silber [28]; CA 174/65 Badash v. Sadeh [25]). Since then, this cause of action has been repealed in England by legislation, in the Law Reform (Miscellaneous Provisions) Act 1970. At the same time, the Contracts (General Part) Law was enacted in Israel, and in s. 63, the dependence of Israeli law on English common law was terminated. Notwithstanding, even after the enactment of the Contracts (General Part) Law, Israeli law recognized the cause of action of breach of a promise of marriage (see, for example, CA 545/77 A v. B [7]; Shifberg v. Avtalion [6]). This is a contractual action, as distinct from an action in torts that is based upon the cause of fraud or false representation. Consequently, the injured party has the right to receive compensation, even without proof of fraudulent intent or false representation on the part of the promissor. There are some who have criticized the existence of a contractual cause of action for breach of a promise of marriage, and have argued that an action for a breach of promise as aforesaid should be based on a tortious cause of action only (Shifman, Israeli Family Law, supra, at p. 198; Shalev, Contracts, supra, at p. 29). Notwithstanding, recognition of the contractual cause of action for breach of a promise of marriage has remained in force and, in any event, the approach in case law is that uprooting it is a matter for the legislature, rather than judicial legislation (Shifberg v. Avtalion [6], at p. 176). Recognition of the contractual cause of action for breach of a promise of marriage was therefore firmly established in case law even before the founding of the State. It reflects an awareness of the social, moral and legal need to give effect to binding promises between two people who are conducting an intimate personal relationship, where the giver of a promise makes a representation as to his intention to be bound by it and keep it, and the recipient of the promise relies upon this, and sometimes even acts and changes his position on the basis thereof. There is no moral, social or legal reason for excluding the promise of marriage from the scope of the law, and for thereby allowing the existence of marriage agreements that bind the parties thereto in a relationship of mutual commitment, without that commitment having any legal consequences when the breach of the commitment by one of the parties causes damage, and sometimes serious damage, to the other party. The pecuniary loss and the non-pecuniary damage that accompany the breach of a promise of marriage may sometimes be even more serious than damage that is caused as a result of the breach of contracts that govern ordinary market transactions, and the law must provide means and remedies that can compensate for damage that is caused in this context. The contractual cause of action for breach of a promise of marriage is therefore an appropriate one and one that is required as a response to situations in which a person has been injured by a breach of promise, even where he is unable to establish a cause of action in torts for fraud or false representation that accompany such a breach. I agree with all of the objective reasons given in the opinion of the President with respect to the importance of recognizing the contractual cause of action for breach of a promise of marriage as an institution that is controlled by the law. This approach is not consistent with the approach of my colleague, Justice Rivlin, who believes, for the reasons given in his opinion, that recognition of the contractual cause of action for breach of a promise of marriage should be cancelled, or, at the very least, the compensation for this should be restricted to pecuniary loss only, whereas the remedy for non-pecuniary should be found in an action in torts, if and in so far as its basic elements exist in our case.

When is a promise of marriage considered a binding contract?

2.            A condition for establishing a cause of action for breach of a promise of marriage is the existence of a binding promise from the viewpoint of the law of contracts. This condition requires a promise that is specific and testifies to the resolve of the offeror, thereby making it possible to accept the offer, which may be effected either in words or by conduct (ss. 1, 2, 5 and 6 of the Contracts (General Part) Law). In an intricate and complex relationship between a couple that is conducting an intimate relationship, not every statement or expression of prospective hope or intent amounts to a promise of marriage, nor does all conduct that indicates a desire for the continuity of the relationship and an expectation as to its future permanence amount to a commitment to marriage. Alongside the social value that seeks to compensate someone who has been injured as a result of reliance upon a promise of marriage that was breached, there is the value of personal freedom and autonomy of a person to chose his partner and to conduct interpersonal and cohabitational relationships in a social world that is characterized by openness, freedom, the absence of coercion and no intervention by the law. Intervention by the law occurs only when the circumstances clearly indicate the existence of a real commitment to a permanent cohabitational relationship which goes beyond mere expectation or expression of wishes or intent. The real difficulty that characterizes the topic under discussion that we are dealing with is finding the dividing line between an expression of intent, wishes or expectation and a legally binding promise. This dividing line may be very fine indeed.

The difficulty of proving the existence of a binding promise of marriage is a salient characteristic of this topic. Where a promise of marriage is made formally and explicitly, it is easy to deduce from this an intention to create a legal relationship. By contrast, when the agreement is not a formal one, caution must be shown in reaching conclusions as to the existence of such an intention, since otherwise,

‘… we expose every courtship of a woman by a man, or vice versa, to the danger that the conduct of the parties will be interpreted, at some stage, as an implied expression of a promise of marriage, without the two of them, or at least one of them, being aware of the full significance thereof’ (Shifman, Israeli Family Law, supra, at pp. 205-206).

The evidential requirements for proving a binding promise vary from one legal system to another. Thus, for example, in the State of Kentucky in the United States, a relatively low threshold of evidence has been established:

‘The offer, however, need not be formal. “Any expression… of readiness to be married is sufficient” ’ (Gilbert v. Barkes [30], at p. 774).

On the other hand, the English courts have taken a more prudent approach, raising the level of the requirements of the rules of evidence with respect to interpersonal agreements between a couple:

‘… in family or quasi-family situations there is always the question whether the parties intended to create a legally binding contract between them. The more general and less precise the language of the so-called contract, the more difficult it will be to infer that intention’ (Layton v. Martin [34]).

In most cases, a promise of marriage is not explicit at all, but can be deduced from the conduct of the parties, and therefore the court should examine all of the circumstances surrounding the relationship between the couple, in order to establish whether a binding contract was made between the parties (CA 460/67 A v. B [5], at p. 160; and in United States law: H.H. Clark, The Law of Domestic Relations in the United States (second edition, 1988), at pp. 4-5). Indeed, most agreements for the purpose of marriage are made informally, without witnesses and without any written documentation, and in many cases even without exchanging any explicit promises. The intention of the couple to establish a viable relationship with one another usually occurs almost imperceptibly, as a result of frequent meetings, an intimate relationship and the development of reciprocal wishes and hopes. It cannot always be seen to occur at a given point in time. Therefore, the courts have always recognized the need to deduce the existence of a contract to marry from the circumstances. This solved one problem, but at the same time it created another — a tangible danger of frivolous actions that lack credibility. This area does indeed raises difficulties in evidence that are inherent in the very unique and special nature of an agreement involving a promise of marriage.

There are those who believe, in this context, that deducing the existence of an intention to create a legal relationship should be limited to cases in which the agreement between the couple also has economic significance and not merely an emotional element (Shifman, Israeli Family Law, supra, at p. 206). Case law has not followed this path, and it has examined the intentions of the parties against the background of all the circumstances of the case, without attributing special importance to any particular aspect of the relationship between the couple. Indeed, the economic aspect of the relationship between the couple should not be given decisive weight. A couple may decide to live as ‘cohabitees’ and run a joint household by pooling their resources, without any intention of marriage, whereas a couple may decide to marry without the commitment between them having any economic basis, such as if they have registered for marriage at the Rabbinate, but have not yet entered into any financial relationship (CA 58/73 Shaked v. Silberfarb [26]; CA 473/75 Ron v. Hazan [27]; Maman v. Triki [19]). We must therefore examine all of the circumstances surrounding the relationship between the couple in order to deduce from it whether a binding promise of marriage was given and then breached. In view of the need to deduce the existence of a binding promise from all the circumstances, and in view of the innate fear of unsubstantiated actions in the sphere of human sensibilities and intimacy, which is naturally replete with strong emotions, it follows that a heavy burden of persuasion rests with the plaintiff to prove the existence of a promise of marriage that was breached, as required by the nature and complexity of the matter. The line that separates a close relationship without any real commitment from conduct that creates a binding promise of marriage is sometimes blurred, and special caution is therefore needed before we recognize a contractual cause of action for breach of a promise of marriage. This caution compels us to set a high threshold of proof, with special weight, to prove a binding promise, as required by the nature of the matter.

Remedies for breach of a promise of marriage

3.            When it has been established that a promise of marriage was made and breached, the question of damages arises for the party injured by the breach. Due to the special nature of the contract, it is certain that an order of specific performance cannot be granted within the framework of the Contracts (Remedies for Breach of Contract) Law. I also agree with the opinion that expectation damages cannot be claimed for the breach (Cohen, ‘Status, Contracts and Inducing a Breach of Contract,’ supra, at p. 311, note 34). The injured party is not entitled to damages that reflect the expectation interest that is measured on the basis of the assumption that the couple actually married. Notwithstanding, the injured party will be entitled to damages for harm to the reliance interest (i.e., expenses that were incurred and other economic damage that was suffered as a result of the promise), for pecuniary loss (Berghoiz v. Silber [28], at p. 386; Shifberg v. Avtalion [6], at p. 176), and also for non-pecuniary damage that was suffered (Ron v. Hazan [27]).

In the dispute among legal and judicial authorities as to whether reliance damages should be limited to compensation for pecuniary loss only, or extended also to general damages, I agree with the broader approach. Once a breach of a promise of marriage has been proved, there is no moral or legal reason not to award the injured party general compensation where it has been proved that the injured party experienced suffering, anguish and pain, which are recognized by the law as heads of damage in the law of remedies for breach of contract. Precisely in a case of breach of a contract in the sphere of human emotion and intimacy, the emotional damage caused by the breaking of the relationship between the couple may, in most cases, be the main damage and the one most worthy of compensation. Limiting the contractual remedy in such a case to pecuniary loss only does not usually reflect the real damage in its entirety, and it is liable to defeat the main purpose of compensation, according to accepted legal concepts. The provisions of s. 13 of the Contracts (Remedies for Breach of Contract) Law should therefore be applied to a breach of a promise of marriage, in such amount as the court thinks fit in the circumstances of the case.

A promise of marriage made by a married man

4.            I agree with all of the President’s reasoning, that the rule applying the principles of public policy to a promise of marriage made by a married man, which in certain conditions nullifies the promise, can no longer stand. Lifestyles and social perceptions have changed unrecognizably since this rule was originally formulated, and the changes that have taken place in the values of modern society with respect to human intimacy justify the cancellation of the historical distinction between a promise of marriage made by a single man and one made by a married man. The fundamental changes that took place in the second half of the twentieth century in the perceptions of morality, and the processes of emancipation from thought patterns, concepts and lifestyles that were accepted in the past, have had an impact on the content of the concept of ‘public policy,’ which is a dynamic concept that reflects the most important values, interests and principles that society seeks to protect and develop. This concept naturally also reflects the changes in social outlooks that occur from time to time (Efrat v. Director of Population Register, Ministry of Interior [12], at p. 778). The Western world, including Israel, has in recent decades undergone radical changes to basic value systems that are characterized by conceptual and moral pluralism, with increasing recognition of the value of freedom of the individual to determine his lifestyle in every respect. These changes significantly affect lifestyles and legal outlooks (A. Rubinstein, The Enforcement of Morality in a Liberal Society (1975), at p. 140). These changes affect the question of the relationship between the value of protecting the institution of marriage — which was and still is a value of paramount importance in human life — and the obligation of the law to someone who has been injured by a breach of a promise of marriage — whether the injury is a pecuniary one or not. In the balance between the need to provide a remedy that will compensate for the injury suffered by someone who relied on a promise of marriage that was breached and who, on the basis of the promise, developed hopes and expectations of a joint future with a partner, and the danger that finding the party in breach liable for damages will hurt his marriage, the first value prevails. This is certainly the case in the absence of a direct correlation between the liability of the person who breached the promise of marriage to compensate the injured party, and the existence of direct harm to the marriage of the party in breach as a result of such a liability. There is therefore no basis for distinguishing between a promise of marriage made by a married man and one made by a single man; the same law and the same remedies apply to them and to the remedies for breaching them.

From the general to the specific

5.            The circumstances of this case, as described in the opinion of the President, leave no doubt that the respondent breached a promise of marriage that he made to the appellant. His promise can be seen clearly from the relationship that they had for many years, which had a very significant effect on the life of the appellant and left its mark on her lifestyle and her fate for many years. The respondent’s promise, his breach thereof, and the injury to the appellant as a result of her reliance on the respondent’s undertaking to marry her cannot be allowed to pass without a proper legal response. They lie at the heart of the law, and are not marginal to it. The fact that the respondent was married should not affect the legal consequences of his undertaking that was breached, and we must enforce his liability to pay the appellant compensation for the damage and the injury that he caused her. This outcome is consistent with criteria of justice and fairness, and it satisfies the requirements of public policy, according to the concepts of the time, the place and the hour. I therefore agree with the conclusions of the President in full.

 

 

Appeal allowed, by majority opinion (Justice E. Rivlin dissenting).

25 Tammuz 5754.

14 July 2004.

Justice D. Beinisch

1. Appellant requests, through the legal mechanism of the Children Adoption Law-1981, to adopt Gil, a youth of 26 years old, who the appellant has raised and educated since infancy. The question before us is whether, given the fact that Gil is now an adult, may we issue an adoption order that would grant legal status to the de facto parent-child relationship between the appellant and Gil—an adoption order in which they are both interested.

 

The Facts

 

2. Gil parents divorced when he was two months old. He remained, together with his three year old brother, in the custody of his mother. When Gil was two years old, his mother married the appellant who, ever since, has acted as Gil's father. In 1975, when Gil was four years old, appellant approached the courts and requested to adopt Gil and his brother. For the purposes of the adoption proceedings, the court made use of the opinion of a Family Welfare Officer. The Officer recommended allowing the appellant to adopt Gil, noting that Gil's biological father had not been in contact with Gil, that he had left Israel, and that he had started another family. This adoption request was cancelled, however, due to the lack of the biological father's consent to the adoption. The parties agreed to appoint the appellant as Gil's legal guardian. The parties also agreed that the children would use the appellant's surname, in addition to the surname of their biological father. This agreement has the force of a court order. Appellant, together with the children's mother, raised Gil and his late brother, who was killed in 1992 in a gunfire accident. No intervention or supervision of the welfare office was ever required.

 

In 1983, appellant and Gil's mother divorced. This, however, did not cast a shadow over appellant's relationship with Gil. The biological father continued to live outside of Israel, never contributed to raising Gil, and came neither to celebrate Gil's Bar Mitzvah nor to mourn with and comfort him after the loss of his brother. Even so, the adoption request was never renewed until, in 1995, appellant approached the Tel-Aviv/Jaffa District Court with a request to adopt Gil.   

 

Gil's biological father was not a party to the court proceedings. Gil himself expressed the desire that the appellant adopt him. The Attorney-General opposed the adoption request, as the statutory requirements for adoption has not been satisfied. The Family Welfare Officer notified the court that the adoption was recommended by the Israel Children's Society.

 

The district court rejected the request for adoption. In its decision, the court held that section 25(1) of the Adoption Law, which presents the requirements for the adoption of one of majority age, had not been satisfied. The court also stated that, without the consent of the biological father, the court could not order an adoption without a prior declaration that the potential adoptee was fit for adoption. The court held that section 8(a) of the Adoption Law also applied to a potential adoptee of majority age, such that either the adoptee had to be declared as fit for adoption under section 13 of the law, or the consent of the biological father had to be obtained. In taking this position, the court accepted the legal stance of Attorney-General. The court added that granting the requested adoption order would allow for the circumvention of the Adoption Law. As such, the court rejected the petition, stating that "[t]here is no legal reason to accept the petition."

 

Majority Age Adoption—the Rule and its Exception

 

3. As known, Israel possesses no special law for the adoption of adults. The only applicable law is the Children Adoption Law. Even so, the word "Children" in the title of the law should not be taken as proof of the legislature's intent to restrict adoption to minors. The Hebrew term "yeled," as the English word "child," has two meanings, both in the spoken idiom and in legal terminology. The term refers to a minor at the initial stages of his development, as well as referring to the progeny of a person. One remains the "child" of his parents for his entire life. Take the definition of child in the Oxford Dictionary:

 

1.a. A young human being below the age of puberty…

2. One's son or daughter (at any age).

 

See The Concise Oxford Dictionary of Current English Language (1995). The Even Shushan Hebrew dictionary has a similar definition:

 

1. The young of a person, from his birth until approximately the age of Bar-Mitzvah.

2. A general term for sons and daughters. See Genesis 33:5 "And he lifted up his eyes, and saw the women and the children"; I Samuel 1:2 "and Peninnah had children, but Hannah had no children."

 

In different statutes the legislature has used both meanings of the term. In this context, it refers to a child of any age. Similarly, the term has an analogous meaning in section 12 of the Inheritance Law-1965, and section 20 of the Tenant Protection Law-1972. For our purposes, we find the words of Wadlington to be fitting:

 

Although "children" is synonymous with "minors" in the minds of many persons, the former term obviously can include adults when we are speaking in terms of relationship. X, the adult son of Y and Z, is also the "child" of Y and Z

 

W. Wadlington, Adoption of Adults: A Family Law Anomaly, 54 Cornell L. Rev. 566, 569 (1968) [18]. Even so, it is clear that the primary purpose of the law was to set up a legal framework for the adoption of minors.

 

4. Section 2 of the Adoption Law provides:

 

There will be no adoption except of one who has not reached 18 years of age.

 

The words of the statute correspond to the primary purpose of the law, and establish that standard adoption is that of a minor. At the same time, section 25 of the law provides:

 

25. Authority to Depart from Statutory Limitations

 

If the court believes that adoption is in the best interests of the potential adoptee it may, under special and appropriate circumstances, depart from the following statutory limitations:

(1)          The age of the potential adoptee under section 2

 

Section 2 of the law establishes the general rule, while section 25(1) provides the exception to this rule. This exception grants the court broad discretion in deciding what constitutes special and appropriate circumstances. The legislature saw fit to point out the relevant factors, while leaving room for judicial discretion. As such, we must determine the proper balance between the exception and the rule.

 

The Development of the Institution of Adoption

 

5. The Adoption Law, together with its various amendments over the years, establishes a mechanism to create a legal parent-child relationship. This creation of this legal relationship has far-reaching consequences. The adopting parent assumes the legal rights and obligations of the parent-child relationship, as well as the standard authority that a parent has with regard to his child. See the Children Adoption Law, § 16.

 

Even ancient systems of law had mechanisms of adoption. In Roman law, the head of a household would be able to bestow, upon his dependent, his own status, property, and rights. The "child" that was so adopted was not necessarily a minor. Similarly, in later law, the term "child" expressed the relationship between a parent and his son or daughter, but not necessarily that between a parent and a minor. See John Brosnan, The Law of Adoption, 22 Colum. L. Rev. 332 (1922) [19]; see also CA 179/53 Cohen v. Cohen [1] (Cheshin, Acting P.); N. Maimon, The Law of Adption 2-5 (1984) [10].

 

The institution of adoption developed in different systems of law. On the continent, its development followed the path of the Roman law. In common law countries, the institution was recognized at a relatively late stage. In England, adoption was instituted through statute. See W.W. Buckland & Arnold D. McNair, Roman Law & Common Law 39-42 (1936) [16]; 5(2) Halsbury's Laws of England paras. 1021-22 (4th ed. 1993) [15]

 

During earlier historical stages of the law of adoption, the law placed a greater emphasis on the needs of the adopting parent, and upon the adopting parent's request to bestow his own status and property upon the "child." Over the years, the center of gravity of the law shifted from the desire of the parent towards the "benefit of the child." In the modern world, this "child" is most often a minor who is in need of a guardian to tend to his physical and psychological needs. See H.E. Still-Caris, Legislative Reform: Redefining the Parent-Child Relationship in Cases of Adoption, 71 Iowa L. Rev. 265, 266-67 (1985) [20]; Walter Wadlington, Adoption of Adults: A Family Law Anomaly, 568 Cornell L. Rev. 566, 567-68 (1969) [18]; Maimon, supra at 20-22 [10]

 

In Israel, the institution of adoption was initially the result of personal and social needs, and developed without a specific statute. The issue of adoption was considered part of a person's personal status, to be regulated by personal religious law under His Majesty's Palestine Order-in-Council-1922. The regulation of the issue through Jewish Law, however, did not prove to be completely satisfactory, see CA 179/53 supra [1], at 1174-75. As such, the Children Adoption Law-1960 was enacted.

 

The Adoption Law—Legislative History

 

6. Before the enactment of the Children Adoption Law-1960, the Knesset discussed the option of allowing the adoption of persons already of majority age. See Minutes of the Knesset 25:944 (M.K. Araditi); 28:534 (M.K. Nir-Rafalks); 29:2135 (M.K. Yonitzman). Even so, the legislature decided to only allow the adoption of those below the age of 18. At the same time, however, the Adoption Law incorporated a transition provision in the form of section 21, which allowed for the adoption of one of majority age, provided that the adoption request was pres    ented within a year after the enactment of the law, and provided that an effective parent-child relationship had already existed for three years. This transition provision brought relatively few cases before the courts. See CA 152/65 A. v. The Attorney-General [2]; CA 362/70 Avogoz v. The Attorney-General [3].

 

Section 25(1) of the 1981 Adoption Law changed the earlier provisions. The commentary to the law stated:

 

Similarly, the bill proposes to allow the courts, under special circumstances, to order the adoption of one over 18 years of age for one legally incompetent, for example, or for one who requires a guardian for other reasons.

 

In the Knesset, the Minister of Justice stated, when presenting the bill:

 

The list of special circumstances in section 22 of the law will include two new provisions that will allow, under certain cases, to allow the courts to depart from the statutory limitations. One, for example, will allow the courts to allow for the adoption of one over 18 years of age, for example, in cases of one who is legally incompetent, or one who needs a guardian for other reasons.

 

Even though the example brought in the legislative  history refer to an adoptee who is legally incompetent or otherwise requires a guardian—situations where the need for adoption is especially apparent—the legislature did not limit the exception to these two cases, and did not specifically define the "special circumstances" that would justify the adoption of one over majority age. The sole limitation placed upon the court was the requirement to consider the "good of the adoptee." The legislature did not provide limitations regarding the age of the adoptee, and did not provide for conditions similar to the earlier law, which required a three year period of "effective adoption." Practically, since the enactment of the Adoption Law-1981, there have been no requests for the adoption of one over 18 years of age. See Maimon, supra at 104.

 

The Relationship of a Parent to an Adult Child

 

7. In general, the law is intended to establish a legal parent-child relationship, and ensure that the adopting parent fulfills all standard parental responsibilities established by law, including physical, psychological and educational needs. This legal parental relationship has the unique characteristics of a biological parental relationship; it applies not only to the supervision of the adopting parent over the adoptee, but to all facets of the parent-child relationship. "The status of a parent is special and unique. It is bound up with the essence of man, and comes with both rights and responsibilities." CFH 2401/95 Nahmani v. Nahmani [4], para. 1 (Barak, J.) Aside from providing the substance and consequences of the adoption relationship, the law also lays out the procedural aspects of establishing the relationship.

 

According to the intention of the legislature, the law is primarily geared towards minors. For many reasons, we may say that the parental relationship is properly a relationship between an adult and a minor. This is especially true because, during the minority years, the parent-child relationship is expressed in all its aspects, as these are understood on both social and psychological levels.

 

Becoming a parent means the acceptance of both rights and responsibilities. When a person becomes a parent, the law imposes upon him the responsibility to care for his child. And this care is not simply ordinary care—it is the responsibility to put the welfare of the child first. A parent cannot simply refuse to care for his child if he finds it inconvenient or uncomfortable. The responsibility of a parent to his child also has civil and criminal aspects. The responsibility expresses the normative expectations of our social structure and our legal system.

 

CFH 2401/95 supra [4], at 683 (Strasberg-Cohen, J.) .

 

   Simply because the parental-child relationship sees its more complete expression in the period when the child is a minor, does not mean that the relationship is devoid of content when the child reaches adulthood, and becomes self-sufficient and legally competent. Parents supply crucial needs—both physical and psychological—even when their child has become an adult. Israeli law, as the law of many other jurisdictions, gives legal expression to the parent-child relationship even after the child has reached the age of majority. This legal expression may be somewhat limited. However, it comes to the fore it several situations. In pecuniary matters, it will suffice to mention the law of inheritance, see the Inheritance Law-1965, §§ 10(2), 16, the provisions of the National Insurance Law which relate to the definition of a parent and a child, see the National Insurance Law-1995, §130(a)(3), the support a parent owes his child, see the Family Law (Support)-1959, § 4 (providing for broad support responsibilities), and the tax law, see the Income Tax Ordinance [New Version], §§ 44-45. See also Children Adoption Law, § 11 (requiring consultation with the grandparents of an adoptee whose parents have passed away). Other legal areas that provide for a parental relationship even towards adult children include privacy law and defamation law, which allow the relatives of the injured person to continue the suit of a deceased, see Privacy Protection Law-1981, § 25; Defamation Law-1965, § 25, as well as the law of evidence, see the Evidence Law [New Version]-1971, § 4. See also the Equal Opportunities in Employment Law-1988 (defining a "relative"). Of course, we cannot forget the provisions of the Children Adoption Law itself.

 

As such, parental status comes with legal ramifications and consequences even with regard to adult children. As such, different systems of law also allow for an adoptive relationship between two adults, even though this option is naturally limited, as will be explained in greater detail below.

 

Special Circumstances Justifying the Adoption of an Adult

 

8. When a court grants an adoption order for a child of majority age, pursuant to section 25(1) of the adoption law, it must contend with two main problems. First, the legislature obviously saw such an order as an exception, and not the rule, which could only be justified by the existence of special circumstances. As such, the court must determine whether such special circumstances exist, and how, in general, they should be defined. Second, the procedures and mechanisms of the Adoption Law are obviously intended for the adoption of a non-adult child. These procedures and mechanisms are not always appropriate for the adoption of a child of majority age, even when a court finds that the existence of "special circumstances" justify that child's adoption. As such, the court must ensure that it wields that law's procedures and mechanisms in a manner that is appropriate for the adoption of a child of majority age. To decide the case before us, we must contend with these two issues—one substantive, the other procedural.

 

9. In interpreting the provisions of section 25(1) of the Adoption Law, we must examine the statute as whole, as well as the interaction of section 25(1) with the rest of the statute, and the interaction of both of these with our legal system.

 

As noted, the intention of the legislature, in establishing a framework for adoption, was to allow for the adoption of a non-adult child while leaving room for an exception that would, under special circumstances, allow for the adoption of a child of majority age.  In this context, we must interpret the relevant sections of the statute, examine the scope of the exception within it, and outline the path that a court should take in establishing what constitutes special circumstances.

 

In determining the statutory purposes of section 25(1), we must determine the purposes that it intends to realize within society, within the framework of the fundamental values of our legal system. In the words of Justice Barak, in HCJ 693/91 Efrat v. Population Registrar, [5] at 763:

 

The purpose of a piece of legislation—a normative concept—is made up of both subjective and objective purposes. The subjective purpose of the statute is the purpose that the legislature sought to pursue in enacting the statute. This is the "legislative intention." The objective purpose of the statute is the purpose that the purpose that the statute is meant to pursue in a democratic statute. This is the "statutory purpose."

 

See also CA 105/92 Re'em Engineers and Contractors v. The Municipality of Upper Nazareth [6] at 198.

 

10. The issue before us is the desire of two adults to arrange the legal relationship between them—a legal parent-child relationship, under the framework of the Adoption Law.  The question is to what extent we should limit their ability to realize this desire.

 

We recall the statement of President Shamgar, in CA 294/91 Jerusalem Burial Society v. Kestenbaum [7], at 481:

 

A free society minimizes the limits it imposes on the freedom of the individual.

 

These words are especially true in the context of an individual's aspirations to realize his personality, and in the context of his desire to give expression to his relationship with family and home, and his feelings towards them. In our times, when "human dignity" is a fundamental right, we must respect an individual's desire to actualize himself. For this reason, we should honor his wishes regarding the family unit to which he wishes to belong.

 

Human dignity, in the constitutional framework, is a legal term. Its practical implementation, however, is in the context of each individual's daily life, and in the citizen's interaction with the state and with the courts. Human dignity is reflected in the individual's ability to freely realize his personality, to give expression to his aspirations, not to be subject to arbitrary acts of compulsion, and to be treated appropriately by the government and by other individuals.

 

CA 5492/92 A  v. B [8], at 842. In this spirit this Court has held that the right of an individual to change his name, without the interference of the state, should be respected, as long as the change harms neither another individual nor the public interest:

 

A person's name is a part of his personality and his social identity. It is the key which he uses to walk the paths of society. It is not simply an identification number. It is an expression of his personality, his feelings, his obligations, traditions and aspirations. In different historical periods people had different names; radical changes often lead people to change their names. See 31 The Hebrew Encyclopedia 1007 (1979). A democratic society respects this freedom. It respects the individual's desire to chose his own name, to choose how he will be called, and to change that name if he feels that another name would better suit him. Indeed, recognition of the person's freedom to change his name is the recognition of his personal autonomy, which is every person's right in a democratic society.

 

HCJ 693/91 supra [5], at 770.

 

 Similarly, a person's parents and children are part of his personality and social identity, perhaps even more so than his name. Of course, a person cannot choose his parents. However, a person's choice to relate to another as his child, or the choice to relate another as one's parent, is an expression of that person's personality. In appropriate circumstances, it is suitable to give this desire legal form. Sometimes, a person can form a relationship with another that is like a parental-child relationship. It is fitting that this relationship be respected, since it forms part of one's human dignity. It would not be an exaggeration to say that this relationship is entitled to no less respect that than any other agreement that is freely entered into, provided that it does not harm another person or the public interest.

 

In other words, the legislature provided for an exception, which allows adoption between two adults, only under special circumstances. We can presume, however, that it did not, at the same time, intend to limit this exception, apart from circumstances where such adoption would not be in the public interest, or where it would harm the interests of another, or where it would not serve the interests of establishing an adoptive parent-child relationship.

 

The Public Interest

 

11. When will an adoption order act not be in the public interest?

 

Many statutes impose rights and responsibilities in the family context. Such legislation can be found in, for example, the law of personal status, in the context of damages in tort law, and in the context of tort law and the law of evidence. In the context of many laws, the parent-child relationship has financial implications, such as in property law, taxes, and government programs. See supra para. 7. Once the legislature has established such rights and responsibilities, it is in the public interest that they not be circumvented or abused through a fictitious adoptive relationship.

 

We can imagine cases where adoption would only provide cover for a relationship that, while close to a parent-child relationship, is not identical to it. Take, for example, a case where adoption is intended to ease a tax burden, where it is intended to arrange a division of property between two adults, or where it is intended to circumvent the provisions of inheritance law. All of these are situations that point to a lack of good faith, and a desire to circumvent the law and abuse the institution of adoption. When the existence of such circumstances are proven, the law should intervene and prevent the establishment of an adoptive relationship. Examples of such circumstances can be found in several states of the United States that recognize adult adoption, as well as in other countries. See Matter of Adoption of Robert Paul P., 471 N.E.2d 424 (N.Y. Ct. Appeals 1984) [11]; in re Jones, 411 A.2d 910 (R.I. 1980) [12]; Stevens v. Halstead, 168 N.Y. Supp 142 (N.Y. Sup. Ct. 1917) [13].

 

As such, it is appropriate that adoption should not be allowed, whenever there is suspicion that it is intended to abuse the benefits that society bestows upon the parent-child relationship.

 

Factors in Adult Adoption

 

12. The legislature intended to allow for the institution of an adoptive relationship only where such legal status is requested in good faith, and where it reflects a true parent-child relationship. The difficulty lies in identifying such circumstances. We may learn from the experiences of other countries, whose laws of adoption have similar foundations to ours—where adoption laws emerged in the culture of a democratic society that respects the will of the individual and his freedom, where such laws recognize adoption as granting the same status as the biological parent-child relationship, and whose central focus in on the good of the adoptee.

 

An expression of this general approach, which requires granting the possibility of adoption in appropriate circumstances, was laid down in Matter of Adoption of Robert Paul P., 471 N.E.2d 424 (N.Y. Ct. Appeals 1984) [11], by the Court of Appeals of the State of New York:

 

There are many reasons why one adult might wish to adopt another that would be entirely consistent with the basic nature of adoption, including the following: a childless individual might wish to perpetuate a family name; two individuals might develop strong filial affection for one another; a stepparent might wish to adopt the spouse's adult children; or adoption may have been forgone, for whatever reasons, at an earlier date.

 

Other states and countries that wished to provide for adult adoption, whether through special legislation or in laws that relate to adoption in general, established special arrangements that are appropriate for such circumstances. See Code Civil §§ 360-379.2 (France); BGB § 1767 (Germany); Cal. Fam. Code. §§ 9300-9340 (1996); NY CLS Dom. Rel. § 111(4) (1996). It is interesting to note that, in Australia, the legislature used similar language to our own law, allowing adult adoption under "special circumstances," which are determined according to the judgment of the court:

 

The grounds on which the court is to exercise its discretion to make adoptive orders re modified in the case of adoption of adults. There is some variation among the jurisdictions, but essentially, criteria appropriate to minors are replaced by a more general formulation, such as that the adoption order should be made if the court is satisfied that special circumstances make it desirable that the [adults] should be adopted.

 

17.9 The Laws of Australia para. 19, Adoption of Children (1995) [17]. Using standards similar to ours, Australian courts tend to allow adult adoption when it is in the best interests of the adoptee and does not harm the public interest.

 

We in Israel do not possess a special legislative arrangement regarding this matter. Instead, the relevant laws form a part of the adoption law as a whole. Even so, we can utilize the jurisprudence of other countries in determining what should constitute special circumstances under our law. 

 

A.            The Existence of a Parent-Child Relationship

 

It would seem that a guiding line of most legislative arrangements for the adoption of adults is the existence of a parent-child relationship. As such, section 5-107(b)(4) of the Uniform Adoption Act, which was adopted by the American Conference of Commissioners of Uniform State Laws in 1994, provided that a condition of adoption would be that the adoption was intended to create a parent-child relationship, and that the parties were aware of this fact:

[T]he adoption is for the purpose of creating the relationship of parent and child between the appellants and the appellant understand the consequences of the relationship.

 

In the United States, adoption is regulated by the States, each of which has enacted different legislation in the matter. As such, it is difficult to say whether American case law is uniform in this regard. Sometimes, courts have emphasized the centrality of the above test; at other times, courts have emphasized different tests. One case, The Matter of Adoption of Elizabeth P.S., 509 N.Y. Supp. 2d 746 (N.Y. Fam. Ct. 1986) [14], is an example of a court granting significant weight to the establishment of a parent-child relationship. In that case, the adopting parent was a nun who cared for the adoptee. The age gap between the two was only one year. Even so, the court believed that the adopting parent could properly fulfill the role of a parent and allowed the adoption, stating:

 

Eileen maintains the role of parent, providing leadership, guidance, nurturing, care and affection for Elizabeth, her ward. Elizabeth, in turn, looks to Eileen for the structure and maturity that a parent normally gives, finding in her the comfort and direction so desperately needed.

 

Id., at 748. Other examples of the centrality of this issue, can be found in cases where courts have refused to grant an adoption order because they were convinced that no parent-child relationship existed. For example, one case discussed a homosexual who desired to adopt his partner as a substitute for the legal marital relationship. See Matter of Adoption of Robert Paul P., 471 N.E.2d 424 (N.Y. Ct. Appeals 1984) [11].

 

It is proper that Israeli courts, in determining the existence of “special circumstances” under section 25, should place this test—the existence of a parent-child relationship—at the heart of the issue. The magnitude of the significance of this test is such that it should be an essential condition in deciding whether to allow an adult adoption. All other tests only help clarify the answer to this central question: whether there is a parent-child relationship.

 

It seems to me that, as per the formulation and purposes of the statute before us, that we should not arrive at the situation existing in many states of the United States, in which the court (not to mention the state itself) is not allowed to examine the nature of the relationship between the two adults requesting the adoption order. It seems patently obvious, from a reading of section 25 in the context of the statute, that the correct interpretation of “special circumstances” should not include situations in which a parent-child relationship does not exist. I believe that this result is also justified by the general approach of our legal system. Adoption does not only affect the adoptee and the adopting parent. Adoption has many legal ramifications. It is not proper that we should use the legal tool of adoption not in the context of a parent-child relationship. Otherwise, we would find ourselves granting the special legal status that the legislature wished to reserve for parent-child relationships to other relationships also.

 

As such, when deciding whether there exists “special circumstances” that justify an exception to the rule of section 2, the court should first check to see whether a parent-child relationship exists. If the answer is affirmative, the court should then decide whether it is appropriate to allow adoption under the exception of section 25 of the law. If there is an honest intention to have a parent-child relationship, and the facts show that such a relationship already exists, then it would seem that the condition of “special circumstances” has been fulfilled. Then, if the adoption is in the best interests of the adoptee, the court must decide whether there are good reasons not to give legal effect to this relationship through an adoption order.

 

In examining whether a parent-child relationship exists, the court may use other secondary tests which are intended to shed light on the nature of the relationship between the two requesting adults.

 

B.            Duration of the Parent-Child Relationship

 

14. Take a situation in which the parent-child relationship existed even before the child reached majority age but, for some reason, this relationship was not given de jure legal status. It would seem that this would unequivocally fulfill the requirement of “special circumstances.”

 

Under certain circumstances in the State of Virginia, in the United States, an adult adoption order can only be granted if the adoptee lived with the adopting parent, before he reached majority age, for at least three months. In other situations, Virginia law demands that the two have been acquainted for at several years. See Va. Code. Ann. § 63.1-222 (1996). A similar position was taken by Australia, see 17.9 The Laws of Australia [17], para. 19. In Victoria, Australia, the law provides that the adoptee:

 

has been brought up, maintained, and educated by the applicant.

 

See Adoption Act 1984 (Vic.) § 10(1)(b). Similarly, section 1767 of the German Civil Code provides that an adult adoption order will be granted if the adoption is appropriate on moral grounds and “especially if a parent-child relationship existed previously.”

 

I believe that most cases that come before our courts will be similar—the court will be requested to give legal form to an already existing parent-child relationship. Even so, I do not believe that we should set down a hard and fast rule regarding this matter. Situations may arise in which it is proper to grant an adoption order despite the fact that a parent-child relationship did not exist before the adoptee reached majority age. This will be the case where the parent-child relationship was created because the adult adoptee required protection or guardianship because of his physical or psychological state, because he was legally incompetent, or because he required medical care. Other situations are also imaginable. As such, it is proper that we not set down bright line rules in this matter. 

 

As such, in determining whether “special circumstances” exist, the court should give significant weight to the duration of the existence of the parent-child relationship, and to do the occasion that they were created. The longer the duration of the relationship, and the earlier the relationship was created, the more the court should tend towards recognizing that “special circumstances” justify an adoption order.  

 

C.            Minimum Age Difference

 

15. The legislature, in section 4 of the Adoption Law, granted significance to the age difference between the adoptee and the adopting parent:

 

4. There will be no adoption except by one who is at least 18 years older than the adoptee.

 

The legislature, however, saw fit to qualify this requirement twice. First, this requirement is qualified at the end of section 4, which discusses an adopting parent who is married to the biological parent of the adoptee. Second, this requirement is qualified at the end of section 25, which subjects the implementation of the age difference requirement to the general discretion of the court.

 

Several countries in Europe, and many states in the United States, provide for a similar requirement of a minimum age difference between the adoptee and the adopting parent. Some jurisdictions specify the minimum age difference. See Utah Code Ann. §§ 78-30-2, 78-30-3; N.J. Stat. Ann. § 2A:22-2 (1996); the French Civil Code § 344. Other jurisdictions are more flexible, and simply provide that the adopting parent must be older than the adoptee. See Cal. Fam. Code § 9320(a) (1996).

 

As such, I believe that that the age difference between the adoptee and the potential adopting parent can serve as a test that—among other tests—can help the court decide whether there exists “special circumstances” and whether there exists a true parent-child relationship. Where an age gap does not exist, a court may find it difficult to establish that a parent-child relationship exists. We need not decide here whether the law should recognize a parent-child relationship even when there is no such age gap. It is enough that the matter is left to the discretion of the court, who will take the age gap into consideration.

 

Injury to the Rights of the Biological Parents

 

16. The law, in recognizing the adoptive relationship, grants that relationship all the rights and responsibilities inherent to the parent-child relationship. As such, granting an adoption order can injure the legal status of the biological parents.  This injury is a direct result of section 16 of the Adoption Law, which provides that adoption “ends the rights and responsibilities between the adoptee and between his biological parents and his other biological relatives.”

 

This Court has already stated:

 

The taking of a child from his natural family, and his subsequent adoption by a different family, constitutes a profound intervention in the fabric of the family unit. Adoption may forever break the bonds between a parent and child, as it creates a legal bond between that child and the adopting parent. These long-lasting and irreversible changes are justified, and not only because they serve the good of the child.

 

CA 232/85 A. v. The Attorney-General [9], at 8. (Barak, J.). As such, Justice Barak there stated, at 9:

 

Consent of the natural parents is usually required for adoption. This consent opens the closed box of the family unit, which is usually closed to the intervention of the state. Some justify this intervention by appealing to the interests of the child. See CA 549/75 at 461; CA 680/77 at 412. I myself believe that the explanation is broader than that. This requirement of consent also protects the constitutional rights of the parents. Only once consent to adoption is granted may we begin to consider the good of the child.

 

Section 8(a) of the law provides that an adoption order may only be issued after the consent of the biological parents is granted, or after the potential adoptee is declared by the court to be fit for adoption. Section 13 of the law details the grounds for declaring a child to be fit for adoption. The combination of these two sections is intended to balance between the rights of the child and the rights of the biological parent, whose child should not be taken from him without his consent unless there are essential reasons for doing so. In accord with the general spirit of the law, the court will declare a minor child to be fit for adoption is he requires protection. In declaring such a child fit for adoption, the court acts in the capacity of his parent. In the same spirit, the Attorney-General is the one who must request from the court to declare the child as fit for adoption. Only the authorities, who are responsible for the good and safety of the child when his natural parents or guardians do not fulfill their responsibilities, can set the wheels of the mechanism of adoption in motion.

 

17. In adoption proceedings, the central question is the intervention of the state in the family unit. Such intervention is usually for the purpose of ensuring the safety and welfare of a minor child in need of physical and psychological care. However, when the adoptee is an adult who, by his own initiative, approaches the state and requests that he be disconnected from his natural family unit, the balance between the relevant interests must necessarily be different. Practically, and even to some extent from a legal perspective, an adult child can separate himself from his biological family without the intervention of the state. In other words, in the case of an adult who wishes to separate himself from his parents and join a different family unit, the intervention of the state is not necessary to actually separate the adoptee from his natural parents.  The state’s intervention is only necessary to the extent it changes the parties’ legal relationships.

 

It would seem that, in the context of adult adoption, there is no justification for requiring the consent of the biological parents. The adult can choose his future and destiny by himself, according to his wishes, and he is legally competent. The source of the statutory requirement of parental consent is in the fact that the statute was primarily intended for the adoption of minors. Even so, since an adoption order breaks the legal parent-child relationship, even in the context of an adult child, it is appropriate to grant a certain place to parental consent, even though, in the context of adult adoption, its place and purpose will naturally differ.

 

18. In weighing the need for the consent of the biological parents, we must recall that, even in the case of a minor, parental consent is not an absolute requirement, a fortiori in the case of an adult child.

 

The consent of the natural parents is not the only cause for intervention by the court. The court may also intervene in the family unity if one of the alternatives of section 8(a) of the law are fulfilled, which will justify a declaration by the court that the child is fit for adoption. The Adoption Law provides for a closed list of eight causes that will allow the court, even without the consent of the biological parents, to declare the child as fit for adoption.

 

 

See CA 232/85 supra [9], at 10. A child may be adopted if the court declares him to be fit for adoption, and this procedure has nothing to do with the consent of the biological parents. The court will declare the child to be fit for adoption simply if one of the alternatives provided by the statute are fulfilled. These provisions—as the rest of the statute—were intended for the adoption of a minor child. The section, as such, discusses the responsibilities of a parent towards his children. Non-fulfillment of these responsibilities will cause the parent to be declared unfit to serve as a parent. None of these statutory provisions are relevant for an adult child.

 

19. Despite all this, the Attorney-General was correct in his claim that, when section 25(1) of the law allowed the court to deviate from the statutory requirements, it did not also provide that the court could dispense with section 8(a) or section 13 of the law. As such, it cannot be said that these provisions do not apply in the case of adult adoption. Even so, when applying the provisions of the statute, it is appropriate that we apply them in a manner that is consistent with the case before us.

 

It is possible that there is significance to parts of section 13 of the Adoption Law, which deals with abandonment or neglect of the child or the unsuitability of the parents, even in the context of adult adoption. These sections may apply in the case of an adoptee who is legally incompetent, or who requires care and supervision. See Uniform Adoption Act § 5-101(a)(2)(4) (applying the provisions of the law intended for the adoption of a minor to the adoption of a legally incompetent adult). It is doubtful, however, whether it is possible to establish, in the context of an adult child, that the parents are unfit. Of course, one cannot establish abandonment or neglect in the context of an independent adult child.

 

Moreover, in the case of the adoption of an adult who is not legally incompetent, it is not appropriate that only the Attorney-General, as one who represents the public interest, be able to initiate legal proceedings. In such cases, the potential adoptee is no longer in need of protection and is capable of representing himself.

 

In order to give meaning to the purposes of the law, and in order that it should not be emptied of all significance, we must apply the remaining provisions of the law in a manner appropriate to those purposes. Otherwise, the dissonance between the statute and reality will frustrate the intentions of the legislature.

 

In CA 152/65 [2], this Court had the opportunity to point out the need to fit the provisions of the law to the situation of adult adoption. In that case, a man requested to adopt the child of his wife from a previous marriage. That case did not fit into the provisions of the Children Adoption Law-1960, the statute that was then in force. There, in the context of the restrictions of section 21 of that law, the Court held:

 

It seems to me that the legislature was concerned with ordinary cases. It was not, however, especially concerned with exceptional or improbable cases. As such, it gave the courts the discretion to apply section 21 of the statute to other provisions of the law, in order that that it could find a just solution.

 

Id., at 314 (Kester, J.) Since, in that situation, the court reached the conclusion that justice required the grant of an adoption order, the court also ordered that the adoption order would apply retroactively, “with the result being that the daughter will be considered adopted from the day she petitioned the court or from the day she turned eighteen years old.” Id., at 315.

 

That case reflects an attempt to fit the interpretation of the law to the special circumstances of adult adoption. If the command of the legislature is that the court cannot disregard the requirements of section 8(a) of the law in any case of adoption, then the court should apply that section in a way that it will not lose all significance in the context of the special circumstances before it.

 

The proper balance between the substance of the adoption order, and between the procedures of the statute, demands a restricted interpretation of the alternative requirements of parental consent and the declaration of the child as fit for adoption.

 

20. Section 8(a) of the law provides:

 

The court should not grant an adoption order unless the parents of the child have consented that their child should be adopted, or unless the child has been declared as fit for adoption under section 13 of the law.

 

I believe that, in general, granting the biological parents the possibility of opposing the adoption order is enough to fulfill the requirements of section 8(a). It can be assumed that, in the case of adult adoption, when the adoptee and the potential adopting parents can point, in all honesty and good faith, to the existence of a parent-like relationship between them, a biological parent who opposes the adoption order must point to a concrete and serious injury to his own rights. Any other reason for opposing the adoption order would not be in good faith, and should not be recognized.

 

Even more so, to the extent a biological parent can point to a substantial injury to his rights, this injury, and the resulting opposition to the adoption order, should also be examined from the perspective of the two other participants in the adoption process—the adoptee and the potential adopting parents. In such case, the court should also examine the possibility of responding to the opposition by limiting the consequences of the adoption order, as per section 16(1) of the law.

 

I will add that this conclusion with regard to the station of the biological parent, and to his consent or opposition to the adoption order in the context of an adult adoption, is similar to the position taken by many other jurisdictions that recognize the institution of adult adoption. In many jurisdictions that recognize adult adoption there is no requirement that the biological parents consent to the adoption order. This is the case  in Australia, see Adoption Act, 1993 (ACT) § 27; Adoption of Children Act, 1965 (NSW) § 26(6); Adoption of Children Act (NT) § 27(4); Adoption Act (SA) § 13(2)(b); Adoption Act (Tas) § 19(1)(b); Adoption Act 1984 (Vic) § 15(2); Adoption Act 1994 (WA) § 69, and in New York State, see NY CLS Dom. Rel. § 111(4) (1996). In the State of California the court can issue a notice to any person that may have an interest in the matter, see Cal. Fam. Code. § 9323 (1996). In the State of Florida, the court must issue a notice to the biological parents, see Fla. Stat. § 63.062(5)(b) (1996).

 

21. Even the requirement that the child be declared to be fit for adoption, if this is required as an alternative to parental consent, should correspond to the existence of special circumstances. Such would be the case where the adoption is intended to give legal effect to a long-lasting parent-like relationship that has existed since the child was a minor. In accordance with this approach, the declaration that the child is fit for adoption is only a recognition of existing circumstances.

 

If a parent-child relationship exists, and the biological parents have abandoned or neglected the child, or proven to be unsuitable parents, the court should find that there is cause for adoption, since the child was fit for adoption at the pertinent time—when he was a minor. This is all the more so if this situation has continued into the child's adulthood. In any case, section 8(a) of the law—which requires the consent of the biological parents—and section 13 of the law—which requires that the child be declared as fit for adoption—should be applied in a restricted sense, as appropriate under the circumstances of the case.

 

It should also be pointed out that other statutory requirements may present problems in situations of an adult adoption. This is the case with regard to section 3 of the law, which requires that the two adopting parents be husband and wife. This requirement is also a result of the fact that the law was primarily intended to apply to minors, and the desire to ensure that the minor is cared for by a warm and loving family. The existence of this requirement, however, should not lead to the immediate conclusion that adult adoption is impossible. This section will also only be applied in accordance with the circumstances, each case unto itself.

 

 

Summary: Can an Adult be Legally Adopted?

 

22. Can an adult be legally adopted under the provisions of the Adoption Law? Our conclusion is that the law was not originally intended to serve as an everyday mechanism for the adoption of adults. Even so, the law provided for the possibility of adult adoption under special circumstances. As per the provisions of the law, as they should be interpreted in light of our general legal approach, the adoption of an adult should be allowed as long as it does not injure any protected interests. These protected interests may be the public interests or the interests of an individual. The court should see the “special circumstances” requirement of section 25(1) of the law as fulfilled when adoption reflects the critical needs of the participants in the process, or gives legal expression to an existing parent-child relationship. In any case, the court should not grant an adoption order unless it believes that such would be for the benefit of the adoptee.

 

The preliminary requirements for the granting of an adoption order may not be appropriate for the adoption of an adult, and they should be implemented in accordance with the situation. In general, I should point out that once the legislature has seen fit to provide that an adult may be adopted under “special circumstances,” it should also provide for mechanisms and conditions that would allow the application of this exception.

 

From the General to the Specific

 

23. As in any case before this Court, we have not scoured the perimeters of adoption law except for the purpose of applying them in the concrete circumstances before us. Appellant wishes to adopt Gil, after he has cared for Gil throughout the latter’s formative years, and through his childhood, youth, and adult years.

 

I will not take the approach of the lower court, which held that there were "no facts to justify the existence of special circumstances, and nothing that would justify issuing an adoption order."

 

The appellant, who was the spouse of the biological mother of Gil, wishes to give legal effect to the parent-child relationship that he has had with Gil since the latter was an infant. No one claims that a proper parent-child relationship did not exist. Since the moment that Gil’s father closed his eyes to the existence of his son, the appellant has been there for Gil, through good and bad. The reports of the Israel Children's Society, since 1975, have consistently painted the same picture: that Gil and the appellant have such a parent-child relationship, and that Gil has ceased to have any connection with his biological father. During Gil's childhood, the appellant was Gil's legal guardian. Gil himself submitted a brief to this court, in which he detailed his long relationship with the appellant, and poignantly described how the appellant has supported him in his childhood, in school, in youth groups, on his Bar Mitzvah day, when he enlisted in the Israeli Defense Forces, during the course of his military service, and even after his wedding. Gil's wife and mother have submitted similar briefs.

 

If there be any circumstances at all that could possibly justify adult adoption (aside from one who is helpless or legally incompetent), they are the circumstances we see before us in this case. I hold that the fact presented above present appropriate circumstances for implementing the exception that would allow adult adoption.

 

24. I do not agree with the lower court, which held that the facts did not show that adoption would be in the best interests of the adoptee. The "benefit of the adoptee," in the context of an independent and mature person, can only refer to the wishes of the adoptee, his aspirations and desires, as long as they spring from proper motivations. The term "in the benefit of the adoptee," in the context of a mature and healthy adult, does not have the same meaning as it does in the context of a minor in need of care and supervision. The presumption is that a mature and able adult knows what it is in his own benefit.

 

"Human Dignity" demands that we give weight and standing to the wishes of a man who aspires to give expression to the deep relationship he has had with one who was his father through both happiness and sorrow. These wishes are identical with his "benefit," which the court must honor.

 

As such, there are special circumstances here that justify issuing an adoption order, and that this adoption order is in the best interests of the adoptee.

 

25. Under section 8(a) of the Adoption Law, we must still contend with the alternative requirements of parental consent or of declaring Gil to be fit for adoption. I believe that he facts before us suffice to show cause to declare Gil as fit for adoption. Such cause has existed since Gil was a minor, when the original adoption request was presented. The facts regarding this matter have been presented in the briefs that were presented to the district court as well as in the reports of the Israel Children's Society. These facts suffice to show cause, as per sections 13(4) and 13(5) of the Adoption Law, that Gil could already be declared a fit for adoption during his childhood. As the facts that gave rise to that cause have not changed, Gil may still be declared as fit for adoption, even now. If we hesitate to do so, it is only because Gil's biological father has not been given notice of these proceedings. The way is now open for the appellant to approach the Attorney-General and request that Gil be declared as fit for adoption. And it is appropriate that the Attorney-General accept his request.

 

 

Once this request is submitted, Gil's biological father should be given notice of these proceedings, by being joined to them as a respondent under the Civil Procedure Regulations-1984. This shall give the biological father the opportunity to present his position.

 

If the biological father does not appear—or if he does appear but does not raise any substantive objections—the requested declaration should be granted. After this declaration is granted, there should be no obstacle to granting the adoption order.

 

If my opinion is accepted, the appeal will be granted, in the sense that the circumstances here should be considered "special circumstances" as per section 25 of the Adoption Law, that the grant of the adoption order should be considered to be in the best interests of the adoptee, and that, after a proceeding in which the biological father is given an opportunity to present his position, the court may declare Gil to be fit for adoption, and grant the adoption order as requested.

 

Justice E. Goldberg

 

I agree.

 

Justice T. Strassberg-Cohen

 

I agree.

 

Decided as per the opinion of Justice Beinish.

17 April 1997