I am of the opinion that the wording of the agreement, which ostensibly shows a waiver of assets that are not included in it, does not negate the plaintiff's right to stand on her proprietary rights now, insofar as we are concerned with assets that were not mentioned in the agreement and which the plaintiff did not know of their existence at the time the agreement was made. The approach that states that where there is no explicit waiver in a divorce agreement, is not a waiver, arises from the words of the Honorable Justice Arbel inHigh Court of Justice 7947/06 Ayala Kahalani v. The Great Rabbinical Court (not yet published, [published in Nevo], 24 December 2006 (pp. (Haifa) 416/06 Anonymous v. Anonymous, para. 17, 12 April 2007).
- In the A. judgment v. S.D. The Honorable Judge Drori of the Jerusalem District Court conducted a legal review of judgments handed down after the Kahalani ruling, and on the basis of which he concludes that:
"This picture of case law, over the past three years (the judgment in the Kahalani case was given on December 24, 2006), testifies to the fact that the interpretive policy, insofar as it relates to a subject that is not mentioned in the divorce agreement, is such that it is not possible to automatically conclude a waiver or a waiver; On the contrary, the person claiming waiver or forgiveness has an evidentiary burden of proving that the silence in the divorce agreement means that the opposing party understood and knew that he had a certain right, and he waived it.
It should be noted that in all of the cases cited above, including the Kahalani case, the data were such that in the divorce agreement there was a general clause of waiver of rights that were not mentioned in the agreement, and a determination that in relation to such rights, each party would be the owner of the rights under its control or possession."
Moreover, in the opinion of Justice Drori in reference to the judgment of Justice Shochat 99783/99 Anonymous v. Anonymous, [published in Nevo], and since this is a legal right, as in the present case, there is no need to raise it at all in the divorce agreement. "The very existence of the rights in the law, and the need - or more precisely, the lack of the need - to include them explicitly in the divorce agreement."