When a divorce agreement is approved by a court or rabbinical court, it receives the status of a judgment, and its contents cannot be challenged after the appeal period expires. The provisions of the agreement become final and binding, and in most cases, any legal action initiated afterward will face significant legal hurdles.
This also applies when one party wishes to challenge a waiver clause often included in divorce agreements, which states:
“Subject to the obligations of the husband/wife under this agreement and subject to its approval, the husband/wife hereby waives any claim and/or financial or property action of any kind, directly or indirectly, and declares that he/she has no and will have no claims regarding the finances, property, or any other business of the husband/wife without exception […].”
If it’s not mentioned, there’s no waiver!
However, the 2006 Kahlani Supreme Court ruling opened the door for exceptions, providing justification for legal claims that may be accepted by courts and rabbinical tribunals.
In Supreme Court case 7947/06 Kahlani v. Rabbinical High Court, Justice Arbel rejected the petition due to the circumstances of the case, but the ruling paved the way for the principle that a waiver clause in a divorce agreement does not necessarily prevent a woman from claiming rights over assets not explicitly mentioned in the agreement—especially if she was unaware of their existence at the time of signing. Her words:
“I particularly believe that attention must be paid to an implicit waiver in a divorce agreement of one party’s rights that may not have been made with the full consent of the waiving party. There may be grounds to consider a presumption that an implicit waiver shifts the burden of proof of full consent to the party claiming the waiver.”
Since the Kahlani case in 2006, courts and tribunals have followed Justice Arbel’s approach. When a claim concerns a matter not explicitly addressed in the divorce agreement, courts have refrained from automatically assuming a waiver and have not denied the right to claim property rights over assets not mentioned in the agreement.
The Kahlani Principle Gains Momentum
This is illustrated by case AM (Jerusalem) 222-08 S.A. v. Sh.D., which involved a dispute over waiver of pension rights in a divorce agreement. The appellant argued that there was no explicit waiver of pension rights.
In this appeal, the court reiterated Justice Arbel’s reasoning, noting that over the past three years, jurisprudence has consistently suggested that a waiver clause may be invalid if the divorce agreement is silent regarding the disputed asset. The burden lies with the party asserting the waiver to prove that the silence in the agreement demonstrates that the other party was aware of a certain right and consciously chose to waive it.
Judge Shneler in Family Appeal 39641-05-10, Plonit v. Ploni also supported the restrictive approach, stating:
“According to case law, a spouse claiming a waiver of the other spouse’s financial right must point to an explicit waiver; implied or general waivers are insufficient.”
Similarly, Judge Alon in Appeal 753/82, Plonit v. Ploni ruled:
“The waiver must be in a manner that is not ambiguous, based on positive consent.”
Whether such consent exists is assessed by examining whether the circumstances indicate that the spouse intended to waive the right—either explicitly or through unequivocal conduct demonstrating intent to waive (per Judge Tirkel).
In another family appeal, it was ruled that the right to pension division between spouses is not a “gift” or “gratuity” but a clear proprietary right established by law and jurisprudence. The fact that the pension is not mentioned in the divorce agreement does not, by itself, negate the other spouse’s right to receive their share. If one party wishes to deviate from the rule and not share the pension with the other spouse, the burden is on them to state this explicitly in the agreement. Otherwise, the other spouse retains the legal right to half of the pension when the agreement is silent on this matter (AM (Jerusalem) 222-08 S.A. v. Sh.D.).
In conclusion, lawyers should include a specific and explicit waiver clause in divorce agreements rather than relying on general or implied language. This prevents judicial interpretation that could undermine the waiver’s validity, particularly when the party was unaware of the right being waived at the time of signing.
Beware: a waiver clause is not an absolute contractual rule!
Note: This article is provided for informational purposes only; consequently, each file/case must be subject to a detailed study. As such, the information contained in this article does not constitute legal advice.
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