This section deals with the procedure involved to make sure that an agreement is properly made and authorized, and has maximum legal validity. Without the necessary authorization, a written agreement will be of limited, legal value only.
Property Relations Agreement – Procedure For Authorisation
Question:
What is the procedure involved in making a property relations agreement so that it has maximum legal validity ?
Answer:
It must be in writing, can be signed privately by the parties, or in front of a lawyer, but in order to give it maximum legal validity, it must be authorized by court – preferably the family court, or the rabbinical court. Before the court can authorize the agreement under the 1973 Spouses’ Property Relations Act , it must ask both parties ,who must be present in court, if they signed the agreement of their own free will, with an understanding of its contents and implications– and it must be satisfied by their answers that this is so. Only afterwards will it authorize the agreement, and give a judgment doing so. This is recorded in the protocol of the judgment and the agreement receives an appropriate court stamp and is attached to it.
This requirement holds whether the property agreement is made by a couple before they marry, a cohabiting couple, or a married couple.
Premarital Agreement – Options For Authorisation
Question:
If one makes a premarital agreement, covering property, are there rules about authorizing the signature of the parties ?
Answer:
Yes ! A pre-nuptial agreement is not legally binding unless the signatures of the parties receive the authorization of a notary or a marriage registrar, family court or rabbinical court.
To make the agreement enforceable regarding property, it should be authorized in court, and not just by a notary.
Limits of Agreement Signed Before Notary Only
Question:
Can an agreement between a couple which provides for the registration of their joint home in their minor children's names after their divorce, and for child maintenance, be made before a notary, and be fully binding ?
Answer:
No ! Firstly, a property relations agreement can be authorized before a notary , instead of a court, before marriage. However, if it is only authorized by a notary , instead of a court, which incorporates it into a judgment, it cannot be enforced . To be enforceable, it has to be authorized by a court, if it has not been before . A property relations agreement between a married but divorcing couple included in a divorce agreement must receive court authorization, and receive the binding value of a judgment . An agreement regarding child maintenance falls within the jurisdiction of a court, and sometimes the transfer of property to minors also requires court approval, as rights and obligations are involved. Accordingly, an agreement of this kind should be submitted to court for approval. This way it will have the binding legal value of a judgment
A pre-nuptial agreement is only legally binding if duly authorized - this can be done before a notary or a marriage registrar, or at the family court or the rabbinical court.
Cancelling Authorised Agreement – Same Judge
Question:
Can the same judge who authorizes a divorce agreement with financial conditions hear an application to cancel it ?
Answer:
Certainly ! In August 2007 The Supreme Court of Justice held that there was nothing to prevent a judge who authorized a divorce agreement from later hearing an application to cancel it. In this particular case the Supreme Court of Justice endorsed comments made in this connection by both the Haifa Family and District Courts which had both rejected the application to cancel the agreement . It held that there was no reason to disqualify a judge from hearing an application to cancel an agreement it had authorized and passed judgment on.
The Supreme Court even refused permission for the man to appeal, a second time against the family court's refusal to cancel the agreement , stressing that there were no grounds for cancellation, and that he had been represented by a lawyer at the time. He was just acting in bad faith , trying to cancel the agreement, as he regretted not exploiting financial options in it at the appropriate time, it said.
Combatting Application to Cancel Agreement
Question:
My ex is refusing to honour the financial terms of our court authorized divorce agreement and will not vacate the family home, to allow for its sale. He has applied to court to cancel the agreement which was authorized by court a few years ago. We both had lawyers at the time. What action can I take ?
Answer:
As well as filing your defence you can be pro-active and file an application to throw out his application to cancel the agreement, and also apply to enforce the agreement, by an order to evict him from the property . The fact that your ex was represented by a lawyer at the time the court authorized the agreement and that he appears to have been unreasonably long in taking action to cancel it will be in your favour. It is extremely difficult to get a financial agreement between spouses which has been authorized by court cancelled as the judge is under a duty to check that the parties fully understand its terms and implications before it authorizes it.
Steps To Enforce Agreement
Case:
I entered into an agreement with a close relative whereby I paid off debts she owed in return for her transferring rights to her home to me , except for one part where she would live. She now says the agreement was unfair, and that it is cancelled because I exploited her. She continues to live in all of the house and I am worried she may try to ‘sell’ it again. What legal action should take to enforce the agreement and protect my rights which have yet to be registered ?
Answer:
Where a close relative attempts to cancel an agreement to transfer property rights it is possible to ask the family court to enforce the contract, and to :
·pass temporary or permanent orders ordering him/her to vacate the property, except for the part of the home to which he/she retains rights
·pass temporary or permanent orders to prevent him/her performing any legal deeds regarding it other than those required for the completion of the registration of the transfer of the property rights according to the agreement.
Property Agreement Authorisation Via Israeli Consulate Abroad
Question:
Can a couple living abroad with real estate and savings in Israel authorize a property relations agreement via an Israeli Consulate abroad without having to appear in court in Israel ?
Answer:
As a rule the answer is no as courts authorizing such agreements have always demanded the presence of both parties , based on the requirement in the 1973 Spouses’ Property Relations Act for the court to be convinced that the parties signed the agreement of their own free will, with an understanding of its contents and implications. However, in March 2004 Kfar Saba Family Court gave a flexible interpretation to this requirement and said that the telephone could be used to verify that the conditions had been met. It said that the trend was for the family court to encourage couples to end disputes by agreement.
It passed judgment authorizing an agreement dealing with property, as well as child custody, visitation and maintenance , while both the husband and wife were overseas. It did so after the judge verified over the phone with an official at an Israeli Consulate in Boston, U. S. , with whom they sat, that they understood its terms and implications, and had signed it of their own free will. This ‘breakthrough’ step is not binding as a precedent but does act as a guide to other family courts and may help to pave the way for a more flexible approach towards authorizing agreements where one or both parties are abroad.
tel: 03-5234133, 077-3500000
fax: 03-5232251