Can a divorce agreement that was authorized by court and incorporated into a judgment but was never implemented because the couple remained together be cancelled because of a substantial change in circumstances ?Agreements •Cancelling Agreements
Only if the enforcement would result in injustice and its cancellation would prevent injustice.
In my divorce agreement my husband agreed to buy my part of the family home and undertook to bring payment on the day of the divorce ceremony at the rabbinical court. We got divorced – but he never brought the cheques. He has carried on making excuse after excuse ever since. What legal steps can I take ?Agreements •Cancelling Agreements
It is possible to file a plea for the cancellation of the part of the divorce agreement relating to the family home because the ex-husband never kept his contractual obligation to pay for his ex-wife’s part of the property at the time stated. This omission to pay on time represents a fundamental breach of contract under the 1973 Contracts Law (General Part) , for which the ex-wife is entitled to cancel the part of the divorce agreement relating to the apartment.
I feel I signed an agreement to sell my home which exploited me. I am a widow, with poor Hebrew and little experience of business or the property market. I sold my home to my brother-in-law. Can I cancel the agreement ?Agreements •Cancelling Agreements
Under the 1973 Contracts Law (General Part) an agreement may be cancelled if there is a basic fault in its formation. Exploitation , if proved, is regarded as a basic fault. Three elements must be proved – firstly, the existence of an extreme situation of distress or weakness (mental, physical or lack of experience), secondly, the exploitation of this by the other side, and finally, a very one – sided business deal.
Can delay in notifying the other side of cancellation of a divorce agreement be, in itself, grounds for failure of an action to cancel it ?Agreements •Cancelling Agreements
Yes ! Under the Contracts Act (General Part) 1973 a party wishing to cancel an agreement due to duress must notify the other side within a reasonable time . Even if duress/force was exercised at the time of the signing of the agreement, if the side wishing to cancel it did not notify the other of this within a reasonable time, the action would fail on this ground alone. So ruled Tel Aviv Family Court in a case where around 5 years had elapsed from the time the agreement was signed, and authorised – and the plea for its cancellation had been filed . The court held that comments recorded in the protocols of hearings prior to the authorization of the agreement , where the Plaintiff had said that he was considering making a notice of cancellation, were insufficient. The notification of cancellation had to be clear, though the filing of the plea itself could be regarded as a notification. As no notification of cancellation had been made prior to filing of the plea itself , the plea was rejected because it was made too late.
When someone claims that he is entitled to cancel an agreement because he was forced or compelled to sign it, when will he be justified in doing so ?Agreements •Cancelling Agreements
Under the 1973 Contracts Law (General Part) an agreement may be cancelled if one side is forced or compelled into making it. This constitutes a basic fault in its formation and allows him to cancel it. Caselaw has fleshed out this definition to make it apply only the most extreme situations which interfere with the freedom of choice to enter into a contract or not. Where a reasonable alternative exists, this cannot be claimed. The burden of proving force or compulsion lies with the person claiming it.
Can a divorce agreement that has been authorized be cancelled because one of the parties is mentally ill?Agreements •Cancelling Agreements
This may be possible if it is proved that the party was mentally ill at the time, the agreement is extremely one-sided, and he/she was not represented by a lawyer. However, before a court authorizes a divorce agreement with financial provisions it is under a duty to make sure that the parties fully understand its provisions, and their implications. Each case must be decided on its own merits
Can a husband go back on his word and take back a gift of the family home to his wife by claiming that he was at a low emotional ebb when he signed an irreversible power of attorney , and was under pressure when he made this concession ?Agreements •Cancelling Agreements
If the granting of rights in the property was within the framework of a property relations or divorce agreement , then the husband would probably not be entitled to rescind his gift, because when the court authorizes these agreements it must check that both sides understood the terms and implications , and signed of their own free will. This is a condition of its authorization, and the granting of the agreement the validity of a judgment .
If, however, the husband just signed the power of attorney, outside of a framework of an agreement, and the change of ownership has not yet been registered at the Lands Registry, then it may be possible to stop the transfer of rights, if he can prove that he was under pressure or not functioning properly at the time.
Can one cancel a “bad” divorce agreement which has already been authorized by court on the grounds that one was mistaken or misled as to one’s legal rights ?Agreements •Cancelling Agreements
In theory, yes, but in practice this is extremely hard to do. As well as proving the difficult grounds of cancellation relating to mistake and misrepresentation under the Contract Law (General Part) of 1973 , one must meet the even higher standard required to cancel a court-authorised divorce agreement. Divorce agreements have a special nature and status. Before a court will authorize one and pass judgment, it must ask both sides , in accordance with the 1973 Spouses’ Property Relations Act, if they fully understood the contents of the agreement and its consequences and signed it of their own free will, not through fear or threat.
Can delay in filling for cancellation of an agreement which has been authorized in court reduce the chances for success ?Agreements •Cancelling Agreements
Certainly, as action to cancel an agreement which has been authorized by court must be made within a reasonable time.
My husband and I made a divorce agreement which was authorised at the family court. I was the one who initiated divorce and agreed to a fairly modest financial deal just to avoid a long court battle. However, when we went to the rabinnical court for the divorce ceremony he went back on his word to give me a divorce and co-operate on this. He tried to exploit the situation by refusing to give me the ‘get’ unless I agreed to additional terms in his favour. Am I stuck with the terms of the agreement now , or can I cancel it and file for divorce, custody, maintenance and a property settlement ?Agreements •Cancelling Agreements
If a Jewish couple make a comprehensive divorce agreement and the financial and custody aspects of it are duly authorised at the family court , if one of the sides refuses to co-operate with the actual ‘get’ process, even though they undertook to do so, this constitutes ‘a fundamental breach of contract’. It will entitle the other side to ask the court that authorised the agreement to cancel it. It should be stressed that a party cannot enforce the other side’s ‘consent’ to divorce even if it appears in the divorce agreement. This is because under Jewish law a ‘get’ must be freely given and freely accepted.
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