"Law and legal tools are not the appropriate framework for healing heartache as a result of relationships between spouses that have come to an end or for 'settling scores' due to emotional disappointments. allegations against a spouse who hid his sincere feelings for his other spouse; his real motives for institutionalizing the relationship between them; the intensity of his sexual attraction to his partner and to others or others; the objects of his desire; His thoughts and the secrets of his heart - all these are not arguments that should be clarified and clarified in court. Couples can engage in romantic relationships and marriages for different reasons, and they can feel attraction and love for their partners with varying intensity. The decision to marry a certain woman can be made by an anonymous person, even though his heart is drawn to one other person or another, and even though this fact - to the extent that it is revealed to a certain woman - can cause her sorrow and sorrow. However, law is not the appropriate arena that will bring about a cure for this pain, and it is not intended to regulate the inclinations of the heart, attraction, and thought of spouses during the marital relationships they conduct" (ibid., para. 48).
In addition to the above, it was noted that recognition of the duty of disclosure in relation to the intimate or emotional relationship between the spouses may cause a profound violation of the privacy and autonomy of the parties to the proceeding, which is involved in the investigation of such claims (see: In a Tax Appeal 4181/22, paragraph 25 of the judge's judgment Y. Willner; Willner and Shlomay's wishes, at pp. 1033-1035). The judge also discussed this reason Y. Willner, in its judgment inIn a Tax Appeal 5827/19, noting that:
"Recognition of a person's legal (as opposed to moral) obligation to share all of these with his other spouse, legal grammar and litigatory investigation of them, are liable to severely violate a person's privacy in relation to the most personal and intimate aspects related to his private space and his own world. Establishing a duty of disclosure in the aforementioned aspects is also undesirable in terms of the consequences that may accompany it - limiting a person's autonomy and limiting his freedom to shape his life story during the marriage, since these aspects, with regard to self-recognition, can change over time, according to a person's perceptions of himself at different periods in his life, to the formation of his inner identity, to the interpersonal encounters he experiences, and in accordance with the society and culture in which he lives" (ibid., Paragraph 53).
- I share the position that, as a rule, imposing a legal duty of disclosure in intimate and emotional contexts between spouses is undesirable. I am also of the opinion that recognition of a legal obligation to expose the secrets of the heart, internal doubts and emotions that by their nature can be dynamic and changing, in the framework of a marital relationship, may give rise to considerable difficulties both from the perspective of desirable legal policy, and in view of the concern of infringement of the privacy and autonomy of the spouses.
At the same time, for the reasons that I will detail below, I am of the opinion that in the circumstances of the case at hand, the difficulties apply to a lesser extent and the reason to overcome them is particularly strong, so that it should be regarded as an exception to the rule according to which the duty of legal disclosure should not be recognized in intimate and emotional contexts between spouses. I will elaborate.
- As for the difficulties arising from the "judgment" of the marital relationship - I am of the opinion that the concerns raised by the case law in this context are justified mainly in situations in which it is the very legal process that introduces the law, for the first time, into the relationship, and in the framework of which one of the spouses seeks to "go to trial" retroactively for their relationship. Indeed, it is not superfluous to note that in the rulings in which the case law denied the recognition of the legal duty of disclosure in intimate and emotional contexts between spouses, it did not deal with situations in which a prior agreement was entered into between the parties that regulates the set of rights and obligations between them in relation to the issue that is the subject of the dispute and the court was required to implement it, but mainly in tort claims in which one of the spouses sought to retroactively apply an external legal obligation to the marital relationship.
This is not the case in our case. Here, the set of rights and obligations between the parties, with regard to the process of preserving the appellant's fertility, was settled from the outset by a formal and binding agreement, on the basis of which the respondent's claim to the existence of a "veto" right with respect to the use of the fertilized eggs rests. In this state of affairs, the law is already in the room, and the litigation between the parties does not seek to apply external legal norms to the relationship retroactively, but rather to determine the scope and content of the rights and obligations deriving from the agreement that was entered into between them. Therefore, this is not an attempt to expand the boundaries of the law to areas that are better left outside its scope, but rather the application of contract law to a relationship of which the parties themselves have chosen to regulate a certain aspect, in a formal contract.