What is the Shared Property Presumption?
The “Shared Property Presumption” (hereinafter: “the arrangement”), was founded by the courts. It states that in the event of a separation and if certain conditions exist, the couple (if in a public relationship or married before 1974) have equal rights over property acquired during their joint life. This is unless the couple drafted a “prenuptial agreement” that instructs the distribution of property in a different way.
The reasons behind the Shared Property Presumption?
As aforementioned, the arrangement was created by court ruling and is not Anchored in the law. This is in contrast to couples who were married after 1974, to which a “Resource Balance Arrangement” applies, and instructions are written in the Prenuptial Relations Act, 1973. The question as to what led the Court to determine the arrangement therefore arises.
An answer to this can be found in the High Court of Justice verdict Bavli v. The Grand Rabbinical Court:
“Shared Property Presumption, is the product of the court’s work. It is a clear example of judicial legislation; It uses a contractual construction that deals with (implied) agreements between parties, whereby they are equal partners in rights. The legal instrument is intended to fulfill a social purpose. It aims to bring social justice. It is based on gender equality”.
To whom does the Shared Property Presumption apply to?
The arrangement applies to the following:
- Couples who married before 1974, Including couples who married abroad before (Victoria Nafisi v. Symantov Nafisi).
- Couples known to the public (Isaiah Dawn v. Mendel Friedman).
- Couples who are prevented from getting married (such as: same-sex marriage).
- Couples who are together but have consciously chosen not to get married.
The conditions for the Shared Property Presumption
The ruling laid down a number of conditions for the application of the arrangement (Ayu (Bella) Hassel v. Reuben Hassel)
“It is a presumption for spouses who live a proper life with joint effort, to have accumulated property, and for either one or both to own it.
The conditions that establish the arrangement are cumulative, as each ruling to makes the next one easier to achieve:
- Proper life
It does not mean that the joint life was spent restless and crises free (Yehuda Dror v. Deborah Dror).
Also prolonged disputes are a normal way of life (Shulamit Levy v. David Levy)
- Joint effort
A joint effort also takes place when one spouse is working and the other is in charge of the household and the children, (Judith Hadari v. Shalom Hadari Darhi)
If one spouse becomes ill, and as a result, his contribution diminishes, it is still considered a joint effort.
- Shared roof
Generally, the date of cessation of sharing is when the couple stops living together. In some circumstances, the sharing will continue even after one of the spouses leaves the house (Haim Avnery v. Tamar Avnery).
Due to the fact that the ruling makes it easier for conditions to apply for the arrangement, it is advisable and desirable for couples to enter into a prenuptial or joint life agreement . This is in order to settle the property issues that arise from the relationship.
Who has the burden of proving the conditions of the Shared Property Presumption ?
The burden of proving the existence of the conditions is on the spouse claiming for the arrangement. If they meet the burden, the defendant could bring evidence on his behalf to contradict and refute the presumption of sharing (Isaiah Shachar v. Mendel Friedman).
Which assets does the Shared Property Presumption apply to?
In general, the presumption of co-ownership applies to assets accumulated during the couple’s life together (a house registered in the spouse’s name, spouse’s social rights, a joint bank account, etc.).
There are certain assets that we would consider separate, but these assets can also be applied to the strengthening of sharing. Here are some examples:
- A house registered under one spouse
Listing a house under the name of one spouse, is not enough in itself to contradict the arrangement. More evidence will be required to contradict the arrangement, especially if the couple lived in the house for a long period of time, (Michal Oron v. Israel Oron)
- A bank account registered under one of the spouses name
The arrangement generally applies in these cases as well. The spouse on whom the account is registered can claim that the account is separate if it is shown that the use of these funds was for separate and non-shared needs (Moshe Kotler v. Haya Kotler)
- Debts accumulated by the spouses or one of them
The couple’s sharing also applies to the debts incurred by either or both of them in the course of proper and normal conduct. In debts that have a distinctly personal character, sharing will not apply (Yaffe Amit vs. Zion Amit).
- assets belonging to one of the spouses before the marriage (married couples), before the joint life (known to the public)
In general, such assets will not be shared. But we will have to look at each asset on its own, and in regard to the whole circumstance.
On the other hand, such assets may be “mixed up” with shared property. For example, if one of the spouses had their own apartment that he purchased before the relationship began. If the couple lived together in the apartment, the couple may have invested joint money into it, and the apartment then becomes shared.
- Property that one spouse inherited
Such property will not be shared (Celia Beatrice Lieberman v. Emanuel (Mendel David) Lieberman)
Is a rabbinical court subordinate to the Shared Property Presumption?
A rabbinical court that deals with property issues attached to the divorce claim is subject to civil law. Therefore, the rabbinical court must adhere to the arrangement (hava bavli v. The Great Rabbinical Court).
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