Property - Couples Married After 1974 - Relevant Law

Question:

I married in 1980 and want to divorce but my husband is trying to prevent this because he does not want me to get anything from his business, which he started up immediately after we got married. I think he may even try to transfer property owned by his business into his brother’s name to avoid me getting it. What are my rights and what can I do ?

Answer:

Firstly, a couple who married after 1974, when the Spouses’ Property Relations Act came into force, are bound by the principles of equalization or balancing it introduced. Basically, the act defines which property is common property and which is individual property. Assuming that the couple never made any legal agreement governing property, then all the common property acquired during the course of their marriage is to be balanced out them. Anything individually owned before the marriage, or inherited or received as a gift at any time remains personal property.

Thus a business which was established during the marriage and which developed throughout this period is joint property, even if it is run by the husband and registered in his sole name. Thus, the wife has rights in the business.

Until an amendment in November 2008*, if the property acquired during the marriage was only registered in one spouse’s name, it could only be actualized after divorce or if one of them dies, unless they both agreed. The spouse in whose name the property is not registered could  not get a declaratory judgment stating their rights but could ask the family court to protect their rights and grant a temporary order to prevent the other spouse from making any dispositions regarding the property . Accordingly,  the spouse in whose name the property was registered would be unable to transfer it into someone else’s name or sell it and pocket the proceeds.

Now, following critical changes to the law, marital assets can be divided before the couple are actually divorced - subject to certain conditions. *See Couples Married After 1974 - 2008 Amendment – for particular circumstances in which property registered in one name only can be divided up before the couple are actually divorced.

If, however,the property is purchased during the marriage and registered in both spouses’ names, then either party can file for its division immediately at the family court, whether it is immoveable property (real estate) or moveable property (e.g. a car), without having to wait until after they actually divorce . This was the position,too,even before the amendment,regarding property registered in joint names.

Question:

Does the fact that a spouse is “separated” have any legal meaning or implications regarding property rights ?

Answer:

Yes. Final separation between a married couple signifies the ending of their relationship as partners in property, even if they continue to be officially married. Accordingly, it will usually be the date used to demark which property is mutual and which is not if there is a division of the couple’s marital property according to the 1973 Spouse’s Property Relations’ Act, with property acquired after the separation being excluded from the equalization process.

Question:

I got married five years ago but my marriage is disastrous. Recently my mother died, and left me her apartment in her will. My husband and I live in a small rented apartment. It is giving me the impetus to get divorced as I am now assured of a roof over my head. Is it true that the flat would be mine only, or could my husband try and get his hands on it ?

Answer:

Generally, property acquired during the course of a marriage is usually joint property. The Spouses’ Property Relations act of 1973 – which applies to couples marrying from 1.1.74 onwards - lists gifts and inheritances as exceptions to this rule. What characterizes these is that neither of them are gained by joint effort.

Thus an apartment left to you as a married woman in a will would be solely yours and your husband would have no right to it.

Question:

My husband has filed for divorce at the rabbinical court and included the division of marital property in the plea. We married 10 years ago. He is crafty and I am suspicious of the rabbinical court. I am afraid I may lose out as our matter will be judged according to religious law which probably favours men . Are my fears justified ?

Answer:

No. In the Spouses’ Property Relations Act of 1973- which applies to couples marrying from 1974 onwards – it specifically states that a religious court must apply the terms of the legislation unless both sides agree that religious law should govern their property relations.

Question:

Before I was married I was injured in a road traffic accident. After a legal battle, I was finally awarded compensation which came through after I was married. I closed it in a savings account in my name. My husband has filed for a division of our property at the family court. Is it likely that the court will rule that he has rights to part of that money ?

Answer:

No ! Compensation for physical injury is not joint, marital property. The 1973 Spouses’ Property Relations Act specifically states that damages awarded by court for bodily injury is not joint, marital property which is subject to division when the parties divorce. It remains the individual property of the person to whom it was awarded. This reflects the idea that only property derived from the joint effort of the spouses during the time they lived together as a married couple is common, marital property. It does not matter if the accident occurred during the marriage or before it; it remains the injured party’s personal property.

Question:

I married a few years ago and my marriage is a disaster. I feel my husband is ‘preparing the ground’ for divorce and is trying to resort to various tricks to make it look as if there is less property to divide (e.g. by transferring some into one of his brother’s name).What can I do to protect my rights in the martial property ?

Answer:

The Spouses’ Property Relations Act of 1973 governs a married couple’s property rights vis a vis one another and provides means for protecting them. Where one party has done something to frustrate existing or future rights of the other, or there are reasonable grounds for expecting this, the court can take steps to protect the endangered rights , if requested. It can order the other side to provide information on property and to deposit a security. It can decide that certain acts may only be carried out with the mutual consent of the parties. In addition, it can order that an appropriate note be made on the relevant register if the real estate involved is registered in one party’s name only.

Question:

I have been married for nearly 20 years and am considering divorce now. Will my wife be entitled to part of the family home which I bought before we married and which is in my name only ?

Answer:

In principle, no, unless you voluntarily choose to give your wife rights in it!  Under the relevant legislation, the 1973 Spouses’ Property Relations Act, property owned by a spouse before the marriage is not regarded as joint. It is excluded from the pool of property to be balanced out between the couple when the marriage ends.

Commentators have said that it was the legislator’s intention to balance out between the parties property gained by mutual effort during the marriage. A married couple are free to arrange their property matters differently if they wish – for example a husband who acquired the marital home before the marriage can voluntarily transfer a half share in it to the other spouse by way of an agreement /gift . The wife has no automatic rights in it and would need to gain them by the husband’s generosity as described or by proving them under general law.

Question:

Does a wife who married after 1974 and wants to divorce have any chance of being entitled to part of the marital home if it was owned by her husband before they married ?

Answer:

The 1973 Spouses’ Property Relations Act, which applies to couples marrying from 1974 onwards, makes it extremely difficult for a wife to get a share of the marital home if it was owned by her husband before they got married. This is because under the act property owned by either party before the marriage is not regarded as joint property to be balanced out by the parties when the marriage ends. Unless the husband agrees to make a voluntary agreement giving her rights in the marital home, the wife will have to prove that she has rights in it deriving from general law – contract, property or trusts – to be entitled to a part of it . She cannot rely on the pre-1974 case law principles of an assumption of partnership as these do not apply.

These points were underlined by the Supreme Court in August 2002 in the Abu Romi case when it rejected an appeal by a Moslem divorcee concerning her claim to rights in the marital home. The Moslem couple divorced after 14 years of marriage and she and the couple’s seven children continued to live there while the ex-husband remarried and lived in rented accommodation . The home had been built by her ex-husband before the marriage with funding from his mother and sister , on land inherited by him from his late father . The home had been given to the mother as a gift and a warning note to this effect registered on the property. The ex-wife had asked the Haifa family court to declare that she was entitled to half the rights in the property and cancel the gift but it rejected her plea as did the District Court, on appeal . The Supreme Court granted her permission to appeal against the latter’s finding, but rejected her plea.

Question:

Are losses incurred when a husband unsuccessfully invests money to be shouldered by both spouses – or are they his personal debts ?

Answer:

Yes, losses from investments, like gains, are mutual property. In May 2002 Kfar Saba Family Court considered the issue of whether debts incurred by a spouse as a result of a one-sided action are common property – and to be debts borne by both sides should a plea be made to divide marital property according to the 1973 Spouses’ Property Relations Act . It said that spouses are, in general, partners in ‘negative’ property – debts- as well as in ‘positive’ property. Exceptions do exist where the action is of an ‘exceptionally personal nature’ , according to Supreme Court case law . However, the family court said where a husband invests there is an implied consent/agreement on the part of his wife which makes her mutually responsible for any debts he incurs while investing.

Question:

My wife wants to end our marriage and has threatened to blitz me with pleas at the family court to pressurize me into agreeing to divorce at the rabbinate. To get my own back I have stopped her using the family car – by fitting an immobiliser and keeping the key with me! I told her that as the car is registered in my name only she has no right to it. Is that so ?

Answer:

No ! Even though the car is registered in one spouse’s name if it was purchased during the marriage it is joint property. If the wife does go ahead and brings legal proceedings regarding the couple’s property at the family court she can apply and obtain a temporary order regulating the use of the car between herself and her husband.

Editor’s note -

If the car is joint property but registered in one party’s name only, then a declaratory judgment stating that half of the car belongs to the other party needs to be given. In principle, according to the 1973 Spouses’ Property Relations Act, as interpreted by the Supreme Court, and before the 2008 amendment, such a declaratory judgment could only be given at the end of the marriage (that is upon death or divorce), and only after that could the division of the property be executed. Accordingly, ownership of a car registered in one spouse’s name only could only be divided after divorce, unless the parties agree to do so beforehand. However, the 2008 amendment has relaxed this restriction somewhat – and under certain conditions it is possible to go ahead with the above before the marriage ends. See Couples Married After 1974 – 2008 amendment.

Question:

I married in the 1980's. After we married we bought an apartment from joint savings and a mortgage paid from our joint account. It was, however, registered in my husband’s name only. I am considering divorce. Am I automatically entitled to half or do I have to prove my entitlement ?

Answer:

The 1973 Spouses’ Property Relations’ Act applies to couples like you who married after 1/1/74. The pre-act principle about the assumption of partnership in property acquired during the marriage but registered in one spouse's name only, does not apply. Instead, you have to prove a specific intention for the property to be shared – based on general principles of Israeli law. These principles may be based on general contract law, general property law, trust law etc.

Question:

My husband has filed for a division of our marital property. We have a joint bank account with a joint credit card . I have always let my husband look after our finances and have never taken any interests in the statements we receive. Recently, however, I wanted to see if I had been credited with a refund due to me so I looked at the credit card statement. I noticed something strange – several payments for hotel rooms. My husband and I have not stayed in a hotel for ages. I suspected a credit card fraud so I queried it with my husband. He admitted that he had been having an affair for a long time with a work colleague, and had taken her to hotels regularly. In fact, so I later discovered, this was just the tip of the ice-berg for he had been seeing her for years when I thought he was away on business – and had paid for flights, accommodation and restaurants from our joint account ! When the court decides our case will I be entitled to some money back on all this ?

Answer:

Clearly expenses on a mistress or extra-marital affairs are similar to debts of an ‘exceptionally personal nature’ in that they are exceptions to the rule whereby spouses are jointly responsible for each other’s debts or expenses incurred during their marriage. This was stated clearly in May 2002 by Kfar Saba Family Court which gave an overview of binding case law on the subject when considering a wife’s liability for her husband’s gambling debts or losses.

Accordingly, a wife will be entitled to be reimbursed or ‘credited’ with all the expenses she can prove that her husband paid in connection with his mistress when the court decides on the division of marital property according to the 1973 Spouses’ Property Relations’ Law . Such expenses , which are similar to an ‘investment’, will be taken into account in the judgment as it balances out the couple’s property.

Question:

Can a court deciding on the division of a couple’s marital property take into account the fact that one spouse has wasted huge sums of money on gambling or entertainment ?

Answer:

Yes, in exceptional circumstances. Although the Spouses’ Property Relations’ Law of 1973 – which governs the division of marital property for couples marrying from 1974 onwards – creates a balancing mechanism to be applied, the court can digress from these where ‘exceptional circumstances justify this’ under section 8.

In a case in August 2001 the Tel Aviv Family Court digressed from the normal balancing formula when it ruled on the division of a divorced couple’s property. It stated that neither the legislation or case law had provided criteria for deciding when the court can digress from the normal balancing mechanism – and adopted a principle from New York State law whereby ‘wasteful dissipation’ of property’ by one party could be taken into account.

The ex-husband himself had admitted that he had wasted over two hundred thousand shekels on drugs, gambling and entertainment during just one particular year of their marriage , while his ex-wife had worked hard and even saved. He was not entitled to an equal share of her work-related benefits, it held . It said to be entitled to this the ex-husband had to have behaved in good faith during his marriage – according to the equitable principle ‘ he who comes to the law must come with clean hands’ , and he had not done so.

Question:

After a long battle I finally got divorced a few years ago after being married for nearly 20 years. According to my divorce agreement our desirable villa was supposed to be sold and the proceeds split between us. My ‘ex’ took his anger out on me and deliberately put off potential buyers, and refused to vacate the villa. Nearly two years after our the court ordered and soon after I finally got my ‘get’, the sale the villa was eventually sold – but for a price far lower than its market value when we made the agreement . I suffered great financial loss – and ran into trouble with the purchase of an apartment I bought . Can I sue my ‘ex’ for the loss he caused me ?

Answer:

Yes. The 1973 Spouses’ Property Relations Act – which applies to couples marrying from ’74 onwards – gives the court discretion , in exceptional circumstances, to digress from the usual 50:50 division when it balances out some or all of the marital property between a couple at the end of their marriage. The court also has the discretion to bring forward the date at which the property to be divided is to be valued so that the crucial time can fall during the marriage, and not at the end.

Thus an ex-spouse who feels the behaviour of the other ex-spouse caused him/her to lose out financially can bring action at the family court for compensation, based on this. Proof will be needed about the other side’s behaviour and how it made him/her responsible for the financial loss. If the spouse bringing the action can prove that he/she lost out financially because of the other side’s behaviour, then the court can he decide that the responsible party should bear the consequences , and make judgment accordingly.

Question:

Can a court appoint an expert in a legal battle in a family law property matter even if one of the parties objects ?

Answer:

Certainly – and it can even order just one party to foot the expert's bill ! These points were emphasised by the Supreme Court in January 2007.

It held that family courts operate under transparency, even more so than in an ordinary civil dispute relating to property , and the parties have a strict obligation regarding the passing on of information to the court. Furthermore, it held, the courts can appoint an expert even in the face of opposition of the parties, in any matter, including the discovery and acquisition of documents. The steps included in the 1973 Property Relations' Act include 'Ordering the Giving of Information", in order to defend one party from having his rights frustrated in the 'balancing'of resources' between them . The family courts can even order one side to bear the cost of the expert, rather than sharing it equally between the parties, it stated.