When a Couple Both Want the House After Divorce | Various Rabbis | Beit Midrash

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P'ninat Mishpat

קטגוריה משנית

Case:

A couple who are divorcing own two apartments, which are both registered in the Land Registry as jointly owned. Each wants to live in the nicer one, in which they now live.

Ruling: The general rule is that if either a husband or a wife has to move out of their joint home, it is the woman who does so because men find it more difficult to relocate (Ketubot 28a). However, the regional beit din ruled (they had the authority to rule based on compromise) that the principle of gud oh igud applies (roughly, "you take or I will take" - see Bava Batra 13a-b). This concept means that when a partnership is dissolved and it is impractical to divide an asset or a set of assets evenly, we allow a party to make the following challenge. Partner A can demand of partner B that B can either buy the asset or allow A to buy it at the same price. In this case, both want to receive the nicer home and pay the difference between them. However, the husband apparently has more money and has bid more for the nicer apartment than it has been appraised for, thus moving it out of the wife’s price range.
The Tur (Choshen Mishpat 171) brings two opinions about a case where one partner says gud oh igud, whether he can put pressure on the other partner by raising the price beyond its real market value. If not, beit din must evaluate the price of the asset and if both sides are interested in receiving it at that price, they are forced to remain partners (Rambam, Shutfin 1:2). The Shulchan Aruch and Rama (CM 171:6) seem to indicate that he may raise the price, which is what the husband has done, as long as he is willing to buy it at that price. The Maharshach does say that partner B can say kim li (I accept the minority opinion) that gud oh igud can only be done at the market price. However, this is difficult because of the Tumim’s rule, which we accept, that one cannot say kim li against the Shulchan Aruch and Rama’s clear position when the S’ma and Shach do not argue.
Furthermore, in this case, even the minority opinions agree. The classical sources discussed a case where there was a feasible option of remaining partners, just that partner A preferred to undo the partnership. However, it is impossible for a divorcing couple to maintain joint living quarters. In such a case, if the two cannot decide who will get the apartment at the going rate, the matter should be settled by giving it to the one who is willing to pay more.
In this case, there is one further reason to allow the husband to get the apartment through gud oh igud. The wife does not have the money available but needs to access it through refinancing the mortgage. The halacha is that in gud oh igud, the one who wins the bid has to be able to pay right away (Shulchan Aruch ibid.:15).