My divorce agreement, which included a settlement over marital property, was authorised at the family court and stated in general that any debts were joint. After we divorced I was sued by my ‘ ex’s’ bank – I had signed as a guarantor on one of his accounts during our marriage. Before I paid the money we made an agreement in which he undertook to reimburse me for all the debt if I paid it. I paid off the debt but he never repaid me. This second agreement was not authorised in court. Can I sue him to get the money back ?
By: דיאנה שאלתיאל•Published on: 10 May, 2022The family court has jurisdiction to rule on a dispute between ex-spouses, and the ex-wife can certainly bring an action for breach of the second contract. However, the situation is not clear-cut.
On one hand the potential source of the debt – the act of becoming a guarantor – was made during the marriage and the property relations’ agreement stated that debts incurred by either party during this period were joint. This agreement was authorised , has full legal value and is enforceable. According to it, the debt to the bank should be shared equally between the parties.
On the other hand, the ex-husband supposedly intended to take full responsibility for the debt by entering into the second agreement aimed at dealing with the issue of the guarantorship which the original agreement had not covered specifically. By not fulfilling his obligation to reimburse her he is not acting in good faith. However, to have full force any change to a property relations agreement must receive court authorisation and the binding value of a judgment according to the 1973 Spouses’ Property Relations Act. This second agreement was not authorised. Its legal value derives from general rules relating to the validity and enforceability of contracts under the general laws of contract, which include ‘good faith’.
The first agreement is a specific type of contract, subject to the principles of family law, which override the general principles of contract law . Under it the debt paid by the wife should be borne by both parties 50:50. According to the second agreement , the ex-husband undertook to reimburse his ex-wife for the whole debt – but this contract does not have the binding force of a judgment , as the first. The ex-wife would probably increase her chances of succeeding if she sued her ex-husband for only half of the debt she paid out.