Agreements - Premarital

Question:

I have been going steady and considering marriage. My close family are concerned that my fiancé my try to take advantage of my comfortable financial position (I have my own very successful company which I plan to expand after we get married). They suggested a “pre-nuptial agreement”. What is this and would it be a good idea for me ?

Answer:

 It is a very useful mechanism for preventing or minimizing legal battles and heartache later, given the high divorce rate these days and can be used to scare off “gold-diggers”.

 Unless an agreement is made, someone marrying after 1974 whose marriage fails is entitled to property according to the terms of the 1973 Spouses’ Property Relations Act. Under the act property acquired during the marriage is “common property” which, upon divorce or death, is “equalized” or “balanced” between the parties, once all debts have been paid off.

The act classifies property owned exclusively by one party before they married and property inherited during the marriage as personal property, not subject to equalization. It also permits couples to form an agreement defining what they consider as common and personal property in their own marriage, thus allowing them to protect their individual interests.

Thus unless an agreement has been made otherwise, all the business expansion /success that took place during the marriage would be regarded as common property, subject to equalization, if the couple divorced. Accordingly, it would be advantageous to an ambitious businesswoman to draft a pre-nuptial agreement which defined her business as individual and not joint property.

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. Court authorization is recommended.

Question:

My fiancée refuses to sign a pre-marital agreement stating that the apartment I have owned for several years already would remain solely mine if we married, and later divorced. Would my rights be at risk if further attempts to get her to sign fail, and we marry despite this ?

Answer:

In principle, no, because under the 1973 Spouses’ Property Relations’ Act an apartment owned by one party before marriage remains their personal property , and is not included in the pool of communal property to be divided between them if they divorce.

My husband and I met in Rhodesia (now Zimbabwe), where we were both born, and got married before coming to live in Israel many years ago . We made a premarital agreement there, like many couples. According to the agreement a debt made by one of us was to be personal, and not shared. We also agreed that any property rights registered in just one of our names’ would not belong to the other. He is due to retire in a few years from a lecturing post he has had for many years and get a good pension . He has also been in business but  has run up heavy debts and he owes money to several banks. We have an apartment registered in both our names. Our relationship has broken down and divorce is inevitable. How will the agreement we made before our marriage influence my property rights, if we divorce ?

Question:

Assuming that the pre-marital agreement was valid where and when it was made, and defined the substance of your  property relations during your marriage, then should divorce be operative, the conditions of the agreement will hold, unless a separate mechanism was agreed upon should you get  divorced. Thus, where the parties agree , as you did, that debts made by one of them will be his/her own personal ‘negative’ property and will not oblige the other, then this will hold if they divorce. Furthermore, if the agreement states that ‘positive’ property will belong solely to the party in whose name it is registered, then this will hold, too, if they divorce. Thus, according to what you state, you  will not share responsibility for your husband’s business debts, but you will not be entitled to part of his pension. You will be entitled to half of the rights in the apartment which was registered in joint names.

Question:

My fiancee and I are considering making a pre-marital agreement. She wants me to make an undertaking that I will support any children we have very generously  if we ever divorce – and has even got a figure in mind which she wants in writing. Can this kind of arrangement be included in a pre-marital agreement ?

Answer:

The court will not authorize an agreement about future child maintenance for children that have not yet been born. Furthermore, the Supreme Court has held that agreements about child maintenance – regardless of whether the children have been born or not – never bind the minors as they are not a party to such arrangements.

Question:

My husband and I divorced at the Sharaii (Moslem Religious) Court. I retained custody of the children. We are now considering re-marrying one another . To protect myself in case our marriage fails a second time round, I insist that we make a premarital agreement covering property matters beforehand – and my ex-husband agrees. Can we do so and how ?

Answer:

A Moslem man and woman can make a pre-marital agreement covering their mutual rights and obligations, and have it authorised at the family court or at the Sharaii Court. The court will authorise the parts relating to their property according to the 1973 Spouses’ Property Relations Act and the 1995 Family Courts’ Act.