Agreements

Only if the enforcement would result in injustice and its cancellation would prevent injustice.

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.

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.

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.

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.

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

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.

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.

Certainly, as action to cancel an agreement which has been authorized by court must be made within a reasonable time.

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.