Property Rights - Family Home

Question:

If a couple divorce does either of them have any preferential right to stay in the marital home rather than it being sold and the proceeds split between them ?

Answer:

If a married couple are joint owners of a property each of them has a preferential right over any third party to buy out the other’s share. A third party can only buy the property if the spouse does not wish to exercise his/her preferential right to buy the other spouse’s share. This right is established and protected in the Land Law of 1969. A couple can sell the property by themselves but if there is no co-operation or trust between them then it can be sold through a property receiver who can be appointed by agreement or through the court.

Question:

What options exist when a couple are about to divorce and there is an outstanding mortgage loan on the family home amounting to nearly all of its value ?

Answer:

Either one of the parties can purchase the other’s rights to the property by transferring all the mortgage loan into his/her name, or the property can be sold and the proceeds used to pay off the mortgage.

Question:

My ‘ex’ is extremely manipulative. The court ordered our home to be sold and the proceeds of the sale divided between us. He has suggested that he should ‘take care of things’ and sell it to avoid wasting money on getting the court to appoint a receiver to do this and having to pay fees for this. While there is certain logic in what he is saying, I am worried that he is trying to ‘pull a fast one on me’ by selling the home for a lowish figure on paper and then pocketing extra money agreed upon with the buyer for himself. In these circumstances is it advisable for the house to be sold through a receiver ?

Answer:

Yes. If the sale is in the hands of the receiver the process is supervised by the court which must approve the sale. This eliminates the possibility of any irregularities/underhand payments that might occur if a manipulative spouse were responsible for the sale.

Question:

If the marital home is registered in joint names does it matter if one party contributed more to its purchase when their partnership in it ends ?

Answer:

No, unless they made a property relations agreement which said that the parties’ property rights were to be proportionate to their relative investment in the property, then they will be entitled to equal shares.
Where there is no such agreement and once a property is registered in joint names it is accepted that they intended for it to be equally owned between them. Only where marital property is registered in one party’s name is their room for arguing about ownership and the amounts each invested.
In the leading case (Dakar v Dakar ) before the Supreme Court in the 80's, it was held: ‘ When a couple register a property in joint ownership there is an assumption that they intended balance and equality, and any surplus contribution of one side is within the framework of a concession or gift from one side to the other. Such a contribution is connected with the marriage, and it finds its expression in the consent to the registration of joint ownership. A different approach would empty the accepted norm of partnership of the couple’s home of all its meaning and turn it into a dead letter.’

Question:

My wife has added salt to the wound by leaving home to move in with her lover, and then starting legal action to get her part of the family home ! Will the court take her disgraceful behaviour into account when it decides on our relative rights in the family home ?

Answer:

No ! The Supreme Court held many years ago that there is no connection between a spouse’s role or responsibility for the break-up of the marriage and his/her property rights. In other words if one of the spouses leaves the home or commits adultery for instance, he/she will not lose his/her rights to joint property.

Question:

If a Jewish wife admits to having committed adultery systematically throughout the marriage can this adversely affect her property rights ?

Answer:

While an admission of adultery by a wife can result in her losing her right to maintenance and her rights in her Ketuba ( marriage contract ) at the rabbinical court, there should be no connection her adultery and her consequent loss of property rights. However, in November 2002 the Supreme Court of Justice held that where a wife admitted to having committed adultery for 12 out of her 17 years of marriage then this shows that her marriage was not harmonious – and has implications regarding her property rights . Where a wife marries before 1974 her property rights are governed by the principle of marital partnership and such behaviour can overturn the assumption of marital partnership and deprive the wife of her right to half of the property.

However, in the particular case, the couple had got married after 1974 and were subject to the 1973 Property Relations’ Act. According to this, property acquired one party before the marriage and registered in his name remains his and does not enter into the pool of marital property to be balanced out between the parties when the marriage ends. Thus it held that the district and Greater rabbinical courts had been correct in holding that the wife had no right in the marital home which the husband had acquired before the marriage and which was registered in his name only. The principle of marital partnership did not apply at all, it held, in this case, throwing out the wife’s petition. The wife also had real estate registered in her name before their marriage and the husband had not claimed rights in it, it added, during proceedings he had brought against his wife at the rabbinical court.

Question:

If a property valuer is appointed to give a final determination of the value of the family home in accordance with a divorce agreement, can his expert opinion be altered by the court if challenged by a party who claims it is biased or unfair ?

Answer:

Where a property valuer is appointed within the framework of a divorce agreement and is supposed to give his opinion , as an expert, on the value of the real estate, and the parties agreed that his finding would be binding then he acts as a ‘quasi-arbitrator’, The Tel Aviv Family Court has held . As such his findings can only be criticised or changed by the court if he has acted outside his powers, including acting against the principles of natural justice. The court can also interfere in the valuation where it contains a substantial mistake .

Case:

I am in the process of divorce. After the property assessor gave his valuation of the family home, my wife told the court dealing with our financial proceedings that she doesn’t want to buy my share of the apartment, and she wants a property receiver to be appointed to deal with selling it, and dividing the proceeds between us. Now, the valuation given by the property assessor is acceptable to me, and I am willing to buy my wife’s share of the apartment. Is the court likely to agree to this ?

Answer:

Yes ! If the valuation is also acceptable to the wife, then there is nothing to prevent the husband from buying the wife’s rights in the apartment, according to it. This will mean that the appointment of a property receiver, which is costly, is now unnecessary. If, however,wife does not find the valuation acceptable, then application can be made to the court for it to appoint an assessor itself, as its own, court-appointed expert, so that the sides can weigh up their decision. Whilst it is possible to reach a simple ,effective and result cheaply, there is no need to appoint a property receiver.

Question:

I feel at a great disadvantage in the divorce proceedings my husband has started against me. He has got a top-notch lawyer and I have no legal representation. I am an immigrant and my command of Hebrew is very basic . I can’t really express myself well and put my case in court. I am worried that I am going to get a really raw deal because of this. This seems unfair. Is there any legal ruling on the issue of legal representation ?

Answer:

The Supreme Court has held that there is an obligation for both sides to be represented in family law proceedings which called ‘the law of human souls’. It did so when faced with a wife’s plea for permission to appeal against a District Court decision upholding a family court decision to divide partnership in the family home. The appellant was unrepresented and her husband was represented; the family court had appointed his lawyer to act as receiver of the family home, registered in joint names, and to undertake its sale and the division of the proceeds.

When faced with a plea to divide up the family home, a court should be doubly cautious in weighing up its findings before it draws its conclusions, the Supreme Court held. That obligation cannot be exercised where there is extreme inequality between the parties as to legal representation, when one is represented by an experienced lawyer and the other, unrepresented, pleads in layman’s language. The legislator recognised the need for people accused of crimes to be represented – and there is justification that it should recognise this right of representation in relation to family law proceedings, the judgment held.

Accepting the appeal, the Supreme Court cancelled the decisions of both the family and the district court, and sent the case back to the former so that it could carry on hearing the case after the wife had obtained a lawyer.

Question:

My husband and I married nearly 10 years ago. Soon after we got married we purchased a home together which was registered in both our names. Shortly before we moved in my husband decided to renovate it so it would be more suited to our needs – using money he had inherited. We are now negotiating for divorce and my husband is adamant that he deserves to get back the equivalent value today of what he invested in renovating the flat as it came from his pocket. Would his claim be accepted by a court ?

Answer:

No ! If one spouse invested more than the other in the purchase of an apartment registered in their joint name ,or paid for renovations, then the general rule is that the party cannot get back the equivalent value of his/her investment when the partnership in the property ends . There are exceptions to this general rule. For example, if there is a property relations agreement made beforehand or afterwards by the parties which expressly states this, then it is possible. Another possibility exists - if a condition was made in the land registry regarding this, or if the spouses’ rights were registered in proportion to their investment in the first place.

Question:

My wife comes from a rich family while I come from a humble background. Her parents chased after me and were clearly looking to marry off their daughter, whose biological clock was ticking away and had very plain looks. They tried to tempt me, saying that if I married their daughter they would transfer half of the rights in the apartment they had bought her into my name. In the end we married and the transfer was effected. Now, several years on our marriage is in ruins . Now her parents keep on nagging me, saying that it is only fair for me to give back my rights in the apartment. Recently my wife filed a divorce plea at the rabbinical court – and tied in our property, asking for a declarative judgment stating that all the rights in the apartment belong to her, and that it should make appropriate orders about the transfer of my rights to her . Is she likely to succeed regarding the property plea ?

Answer:

No ! If rights in the apartment were transferred to the son-in-law in return for marriage or given to him as a gift by his bride or her parents and registered in his name at the Land Registry , then the rights are his, and he cannot be deprived of them. A plea to gain back those rights is doomed to failure, whether made at the rabbinical court or the family court.

Question:

What happens when both a husband and his wife want to buy the other’s share of the family home they own when they split up, but things go wrong ?

Answer:

Both spouses have the right to buy the other’s share in the property before a third party can under the Land Law of 1969. If by chance, both wish to buy out each other’s share they can reach an agreement regarding this and if they encounter problems they can ask for court intervention in the dispute.

In 2001 the Tel Aviv District Court was faced with an appeal concerning an agreement made between a divorcing couple who both wanted to exercise this option of first refusal . Their divorce agreement had stated that the home would be sold and the proceeds divided between them after debts were paid off. However, they received no offers on the home. The woman made an offer and gave a deposit to the man’s lawyer. The man then offered a higher sum . After turning to court regarding the dispute, they then reached an agreement whereby the man would purchase the woman’s share and pay on set dates, undertaking to pay compensation if he did not keep his word . When the husband encountered problems in meeting the payments, he asked the court to extend the deadline. The woman objected, claiming the agreed compensation and the right to purchase his share of the apartment. The court accepted her argument, and the man appealed to the district court.

The appeal was rejected. It was held that the woman had acted in good faith and was entitled to compensation . It rejected the appellant’s claims that circumstances beyond his control had prevented him from keeping the agreement . It held that as a rule the court cannot interfere if the sides agree in advance on compensation where a contract is broken. However, where the sum agreed seems to be too high in relation to the deal agreed upon, the court can reduce it, which it did.

Question:

My husband and I have always kept our finances separate. I have worked throughout our marriage and my salary has always gone into my own bank account. My husband has been less stable than I am; he is self-employed and is always under pressure financially. Because of this I decided to purchase our apartment in my own name, and have taken on a mortgage which I pay from my salary. If, for any reason my husband got into serious debt would my home be safe from the grasp of creditors ?

Answer:

If a wife purchases a home in her name only and can prove that she paid for it, then, providing that the couple are used to separating their finances, it should be protected against proceedings started later by creditors against her husband.

This was the conclusion to be drawn from a case before the District Court in April 2002 when a wife successfully obtained a declaratory judgment stating that a home purchased by her and registered in her name was solely hers and that her husband had no property rights in it. It even declared that the house contents except for husband’s personal effects were hers. In that case the husband’s creditors had claimed that a property relations agreement stating that the couple’s home was soley the wife’s – and made after proceedings had been started against him - was just a trick to protect the home as the couple had continued to live together as a family.

However, the court held that the evidence the wife had brought proved that the home was solely hers. Its decision was primarily based on the fact that the purchase was made solely by the wife and registered only in her name – before proceedings had started against her husband. Furthermore, the couple had always kept their finances separate from the start of their marriage and did not have joint bank accounts. The wife had proved that mortgage repayments were taken directly from her bank account into which her monthly salary was paid. A wife was entitled to separate her finances from her husband’s even if she was aware that he was in financial trouble – when her husband had not even received a warning letter from creditors.

Question:

Can a wife have rights in the marital home even if the husband bought it before they were married ?

Answer:

Yes, sometimes, depending on the circumstances. Although property owned before marriage usually remains individual and not communal, the wife may have equal rights in the marital home if the marriage is long-established and it is the only real estate owned by the couple, even if the husband purchased it before they married. The Supreme Court held this was so in the Hadari case in the nineties where the husband had purchased the family home a year before they married. The husband had received possession of the apartment just before the wedding and the couple had lived in it throughout their marriage. The wife had worked and earned no less than the husband. In these circumstances, it was held, the wife had equal rights in the home as the principles of marital partnership – which apply to couples married before 1974 –applied to the case.

Question:

My husband bought his own home when he was single, before we met. He bought it without a mortgage, with help from his parents, and it was registered in his name only. We have been married over 10 years now but have decided to divorce. My husband always promised me that I was an equal partner in everything. Do I have rights in the apartment ?

Answer:

For a spouse to have rights in an apartment registered in the other spouse’s name before they married a special test developed by the Supreme Court must be applied.
Proof of a specific intention for the property to be shared is needed. Without this proof the person in whose name the property is registered will be regarded as the exclusive owner. The test is the same test as that devised by the Supreme Court regarding property received by one spouse by way of gift or inheritance during the marriage – and in which the other spouse claims to have rights.

Question :

In religious families where the bride’s parents buy the family home and register it in the bride’s name will the groom have any right in it if the marriage breaks down ?

Answer:

The general rule is that where couples marry after 1974 the principles of the Spouses’ Property Relations’ Act of 1973 apply. According to the act property acquired by one side before the marriage remains theirs solely and is not joint. However, according to recent caselaw, where the property in question is the marital home, it may be regarded as joint property despite this where, for example, the couple lived in it for many years . This may also be possible if the marriage is short but the side in whose name it was not registered had some financial link to it or there was some specific intention for it to be joint property .

In a case before the Jerusalem Family Court in July 2001 a wife was successful in getting an order for the husband to be removed from the family home after it held that he had no rights in it. The apartment was one of two the wife’s late father had purchased six months before the wedding and which were registered in his daughter’s name shortly after the marriage.

The husband claimed that his rights in the family home derived from an ‘agreement’ made before the wedding by the couple’s fathers in which the father-in-law undertook to ‘ buy them a lovely apartment of at least 4-rooms in Jerusalem ’. Furthermore, the fact that he had lived with his wife in the apartment for over five years before they separated gave him rights, he claimed. Rejecting his arguments, the family court held that the home was the wife’s sole property and no specific intention for the home to be joint property was proved.

Question:

During our marriage my husband and I purchased an apartment in which, till today, we and the children live. It is registered in his name only. A rift has developed between us after I told him that I wanted to divorce. A little while ago he notified me that he had sold our home to a relative. Can I act against this sale which was made without my knowledge ?

Answer:

A wife can take legal action against her husband if he sells their joint property, the family home registered in his name only, without her knowledge. The plea should be directed against the purchaser as well as the husband and would be aimed at preventing or cancelling the registration of the purchaser’s rights regarding the family home, depending on whether the change of ownership had been carried out or not. If the purchaser bought the property in good faith this would make it harder to prevent or cancel the registration of ownership but as the purchase was a relative of the husband it is most unlikely that he acted in good faith.

In connection with this the Supreme Court held in the 90’s in the Ben Zvi Case that where a real estate deal concerns a family home and the buyer knows that the seller has a spouse living in it with the seller , then onus is on the buyer to check out the spouse’s rights if he is to act in good faith.

Question:

My wife filed me for maintenance at the rabbinical court and included a plea to remain living in the family home. I filed a plea for a division of the partnership in the family home at the family court. What is likely to happen when my wife has asked to live in the family home and I have asked for it to be sold ?

Answer:

The Supreme Court has held that neither a wife or children have a right to be accommodated in the family home if a plea has been made to end the partnership in it. They have a right to alternative accommodation only ; it is merely a financial right, and they can claim it as part of the maintenance plea against the husband/father.

Question:

I left the family home over a year ago after years of abuse at the hands of my husband. He continued to live in the apartment. I have tried to communicate with him, via relatives, in order to reach a fair divorce settlement , including splitting up our partnership in the marital home. However, my husband claims he is a ‘protected tenant’ while I abandoned the home and gave up all rights to it. Because of this, he says, our home would be regarded as ‘occupied premises’ and not ‘vacant property’. It would be worth far less, like a key-money apartment. Is there any truth in his claims ?

Answer:

No ! According to the Protected Tenants ( Consolidated Version) Act of 1972, even an owner , or one of the owners of a home used for residential purposes can become a protected tenant if he loses his ownership rights following a court judgment . However, this cannot apply where the owners are a couple and there is an action to divide ownership in the family home. This is because the courts narrowed down the interpretation of the legislation over the years and the act itself was amended accordingly in the 1990’s to abolish the concept of protect tenancy in connection with the division of a couple’s family home.

Question:

I am involved in a legal battle with my husband at the rabbinical court. He filed me for divorce and ‘tied’ everything he could to the plea, including our property. Our family home is registered in our joint names. My husband owned it before we married and transferred half of his rights to me soon after we married. I feel the whole atmosphere there is anti-women and I am terrified that I could be thrown out of my home. Is that possible ?

Answer:

In theory, no, as religious courts must apply civil law regarding property and cannot ignore legislation regarding women’s equal rights. An order to vacate a property in which a person has rights/potential rights cannot be made until the court has ruled on these and the division of the property, and the property is actually to be divided. A husband has no favoured status regarding a couple’s property relations because of the Women’s Equal Right’ Act of 1951, The 1969 Land Law ( which sees both sexes as equal partners regarding property) and the Bavli petition ruling in the 90’s.

However, in practice, this has happened. In March 2002 the Greater Rabbinical Court upheld a judgment made by the Jerusalem District Rabbinical Court ordering a wife – who had been locked in a divorce battle for many years – to leave the home, which was jointly registered in the spouses’ names – even though it had not decided on their property rights and on the division of their partnership . It gave the husband, who had been living elsewhere on the same Moshav (village) for over 20 years – permission to live there.

In a petition to the Supreme Court of Justice against these judgments, the petitioner, the wife, argued that they were based on Talmudic rulings, whereby a wife had to leave the home before her husband, and which should not be applied. These rulings contradict with Israeli civil law, which sees men and women as equal partners in property and regulates the granting of orders to vacate the property, and which should be applied.

Question:

A few years ago I bought an apartment with my daughter and son-in-law, which was registered in our names in equal shares. The relationship between my son-in-law and I has deteriorated as a result of tension in their marriage. Recently I returned home to find the lock had been changed and my personal belongings on the doorstep. Am I entitled to money for the use of my room – and if so, from when ?

Answer:

If the court is satisfied that a person is forced to leave his apartment and that he did not leave of his own free will, then he will be entitled to money for its use from the day he left. If the court is not satisfied that he was forced to leave, he will only be entitled to money for its use if the other owners leased all the apartment or the part the person vacated, for the duration of the let. He will not be entitled to any money if he left voluntarily and the property is not leased out but remains empty.

Question:

My father transferred rights to our family home into my name and that of my sister. My mother claims that although the apartment is registered in my father’s name only it belongs to both of them because they are married. Is she right ?

Answer:

In principle, yes ! If the family home was acquired during the couple’s marriage then it belongs to them in equal parts even if it is registered in one of their names. Accordingly, if for example, a husband transfers rights in the home to the couple’s children behind his wife’s back, then she can bring legal action to cancel the transfer of ownership.

Question:

I am married to a woman I lived with before we married. Soon after we met, but before we started living together, her father helped her buy an apartment which is registered in her name only. He gave her most of the money for it –and she took out a small mortgage which is still paid from her account even though we are married. If we divorce, will I have any rights in it ?

Answer:

The principle is that because the property was owned before one party before marriage, it remains that party's  individual property. If, however, the couple cohabited and it was acquired during this period then the other party can have rights to it if it is proved that they fit the definition of cohabitees and there was a general or specific intention of partnership between them.

In your  situation as described it does not appear that you were cohabitees when the property was purchased and, therefore you do not have rights in it. However, as the mortgage is still being paid during your marriage – even though from your wife’s account only – you  will be entitled to a sum equivalent to half of the mortgage repayments made during your  married life together.

Question:

I am concerned that my widowed father is being exploited by a lady friend. A pal of his told me that my father had confided in him and told him that he signed papers at a lawyer’s office undertaking to transfer half of the rights in his home to this woman. We have heard horrendous tales of exploitation of elderly widowed men by “girlfriends” or “caregivers”. If we manage to talk sense into my father can he cancel this undertaking ?

Answer:

Yes, most probably. Providing that the transfer of rights has not been effected at the Israel Lands Registry, then it remains an undertaking to make a gift, and, according to the 1968 Gift Act, is reversible in principle, although exceptions exist. If, for example, the donor has given up his right to retract the undertaking or the potential recipient can prove that his/her situation has worsened as a result of relying on the promise, then the undertaking cannot be reversed.

In January 2004 Tel Aviv Family Court gave a declaratory judgment holding that a man in his eighties was entitled to retract an undertaking to transfer property rights in his apartment because the change had not yet been registered and, therefore, under the Gift Act he was entitled to change his mind. It held that in the documents the man had signed he had not given up the right to retract his undertaking and the behaviour of the respondent – his former caregiver who later married him - was so negative that he could act this way.

Question:

Can a wife persuade a court to give her a greater share of the family home , registered in their joint names, because her self-employed husband behaved terribly to her , abusing her during their marriage, and concealing cash income, while she worked like a dog to pay off the bills ?

Answer:

No ! Assuming the couple got married on or after 1.1.74, then, according to the relevant legislation, the 1973 Spouses’ Property Relations’ Act, both spouses have an equal right to property acquired during the course of their marriage, unless it falls into one of the exceptions e.g. gift or inheritance , or they made a written agreement, authorized in court, which excluded a certain asset from the common pool of property. Now, although the court does have discretion to digress from this 50:50 formula where it feels it would be just to do so in exceptional circumstances, it cannot do so where the real estate is registered in joint names, as this indicates the parties’ agreed intention for that property to be jointly owned, and the assumption is in equal shares.

These points were made by Jerusalem Family Court in June 2004 when it rejected a claim by a wife to give her a greater share in the family home, registered in joint names, due to her husband’s negative behaviour. She succeeded in proving that he had kept cash income for himself , but the court held that it could not exercise its discretion to offset this in relation to the house, only in relation to her pension and work rights

Question:

How can a man who plans to marry and purchase the marital home mainly from his savings and money given to him by his parents, with the remainder to be paid for by the joint income of himself and his wife, guarantee that she has no rights in it if they
divorce ?

Answer:

The future husband can protect his rights in the apartment by drawing up a property relationship agreement with his future wife in which it is stated that each party will have rights proportionate to their relative investment in it, upon divorce.

Question:

Could the fact that an ex-spouse did not file for his/her rights in the former marital home for many years prevent him/her from succeeding if he/she only does so after the other spouse's death ?

Answer:

Whether delay in filing for a declaratory judgment about one's rights in the former marital home amounts to a relinquishment of those rights will depend on the circumstances of the case in question, and the court has discretion over the matter. The Supreme Court has held that delay in itself does not amount to an obstacle preventing a former spouse from filing for a declaratory judgment regarding property rights. In the late 1980's it held that it was "unjust" to say that a family member who took no interest in his formal rights had given them up if he only became interested in them because they became "relevant" due to a change in circumstances.
Furthermore , in the 1990's the Supreme Court held that only if the plaintiff's behaviour amounts to a relinquishment of rights and the defendant's situation is worsened as a result of the delay, will it prevent the former from succeeding. As a declaratory injunction is based on equity, the court will check to see that the Plaintiff acted in good faith, and came to equity "with clean hands", it said.

Question:

When a court has to decide on the division of property rights in the marital home between a husband and a wife who are divorcing, will the fact that they have young children influence the decision ?

Answer:

Yes. When the court decides on the division of property rights in the family home, it can decide on an unequal division to take into account the minors’ accommodation needs, so that the parent who gets custody will get a larger share.

Question:

Because of debts caused by my husband’s business partner who then fled the country, several banks are hunting us down. They said that if my husband won’t pay up we could be forced to sell our home, which is in both our names, to cover the debt. This frightened me. Can they do this, and could we and our children be homeless ?

Answer:

Yes, if the banks take legal action to recover the debt and the court gives a judgment ordering them to pay up, and they do not , then creditors are entitled to apply to the Chief Bailiff at the Execution Office for a freezing order on the home to guarantee the debt. If the couple are still unable to pay 30 days after the order is granted , then the process of selling the property to cover the debt can start. The law contains provisions to protect debtors families from becoming homeless; the Chief Bailiff will not act to evict the family from the home unless he is satisfied that they will have “reasonable accommodation” or an “alternative arrangement awaiting them. In practice, this means that they may be forced to sell to cover the debt, and have to buy a smaller property with what money is left over, or even rent one.