MATRIMONIAL PROPERTY

In Jewish Law

general

In Jewish law, spousal property relations are regulated by the ketubbah. Maimonides describes how, when a man marries, he undertakes to provide his wife with ten things and is entitled to four things (Yad, Ishut 11:1–4; see at length *Husband and Wife). In general, according to Jewish Law each of the spouses has a specific role which determines the scope and nature of their respective rights to property and other rights and obligations. According to this view, the husband is analogous to a "foreign minister" or "finance minister" of the family and thus bears the legal obligation of supporting the family, which under Jewish Law is exclusively the husband's obligation. In order to discharge this obligation, he has possession and control of the property belonging to himself or his wife. Any property acquired during the course of the marriage is his, such that property bought with his own money belongs to him, while property bought by the wife with money that she earned is usufruct (nikhsei melog) – in other words, the principal belongs to her, while the control thereof, including the benefit of its proceeds, belongs to the husband, being intended for household needs.

In Israeli Law

Since the early 1960s, a doctrine of "presumption of joint property between spouses" has developed in Israeli law. Initially, the Israeli Supreme Court recognized the presumption as governing the relationship between the couple vis-à-vis the estate tax authorities. Accordingly, where an apartment was registered exclusively in the name of a deceased husband, the Court ruled that half of it belonged to the wife, by force of the presumption of joint property, and therefore the husband's estate only included half of the apartment (ca 300/64 Berger v. The Estate Tax Administrator, 19(2) pd 240). Gradually however, the doctrine was recognized and applied in relations between the spouses themselves. The Aftah decision, delivered by a bench of five justices, is generally regarded as the landmark decision on this subject (ca 595/69 Aftah v. Aftah, 25(1) pd 561). Since then, Israeli case law regarding the joint property presumption has developed at all judicial levels, from the Family Court through to the Supreme Court. This has been regarded by some as an example of Israeli common law.

The doctrine, in essence, is based on the presumption that a couple living together harmoniously intend that all property acquired during the course of the marriage will be jointly owned in equal shares by both partners, even if registered in the name of one of them. The legal force of this presumption was originally based on what was perceived as the presumed intention of the parties. Case law notes that this intention is presumed even when the husband and wife have different levels of earnings, even when the wife does not work but takes care of the house and children, leaving to her husband the task of supporting the family. The parties were presumed to have intended that the family's income and its accumulated assets would be their joint property. Case law extended the scope of this presumption to include partnership in future assets, such as pension rights, continuing education funds, life insurance, etc. In the early stages of its development, the Court ruled that it applied to a couple's apartment, but that regarding commercial property, a greater level of proof was required to prove the intention of joint ownership. Over the years this distinction was abolished, and today the doctrine applies to all of the couple's assets, regardless of whether these consist of the couple's apartment or of other forms of savings, business assets, reputation, etc. At all events, the Supreme Court held that with respect to the couple's apartment, there could be cases in which it would be regarded as joint property even when purchased before the marriage, and part of the purchase price was paid during the course of the marriage (ca 806/93, Hadari v. Hadari, 48(3) pd 685).

As the doctrine developed, the empirical-consensual aspect was abandoned, and several judicial pronouncements indicated that the doctrine of joint spousal property is based on the principle of equality between spouses, in accordance with the general principles of the Israeli legal system, which regards equality as a fundamental value.

In 1973, the Spouses (Property Relations) Law, 5733 – 1973, was enacted. Pursuant to the law, a married couple constitutes a kind of obligatory delayed partnership that only finds expression when the marriage is terminated (by divorce or death). Until such time, the couples' assets are separated. Upon termination of the marriage (either through death of divorce), an accounting is made of the couple's assets; if more than half the assets are owned by or registered in the name of one of the spouses, that person pays half of the difference to his spouse (ca 1229/90 Hanokh v. Hanokh, 45(5) pd 584). Section 5(a) of the law explicitly provides that gifts and inheritances received during the course of the marriage are not considered as joint property.

There is disagreement in the case law as to whether the joint property presumption – which was a judicial, and not a legislative creation – applies to couples married after January 1, 1974 (the date that the new law came into force), or whether the only applicable law for the latter is contained in the provisions of the aforementioned law, that establishes an obligatory delayed partnership. This controversy is mainly relevant when deciding on whether a party is entitled to claim half of the property prior to termination of the marriage, pursuant to the partnership doctrine, or whether a spouse's right to claim it arises only on the day that the marriage is terminated (on this matter see ca 1915/91, Yaakobi v. Yaakobi, 49(3) pd 529).

the supreme court's position vis-À-vis rabbinical court decisions

Since the early days of the State, the position of the Israeli Supreme Court has been that the rabbinical court must apply religious law, i.e., Jewish Law, not only in matters of personal status (e.g., the validity of marriages and divorces), but also in cases involving financial matters, insofar as "the nature of a Jewish religious court is to rule according to the religious laws of Israel" (ca 22/49 Levanon v. Elmeliah, 3 pd 68, 80; per Justice M. Silberg; see also hc 323/81 Wilozni v. The Rabbinical Court of Appeals, 36(2) pd 733, per Justice Menachem Elon). In its capacity as the High Court of Justice, the Supreme Court had traditionally taken this approach when confronting questions of whether to vacate rabbinical court judgments on financial and property disputes between couples. Questions of this nature were adjudicated by the rabbinical courts in accordance with Jewish Law, as part of their incidental jurisdiction, when arising in the course of divorce proceedings (see *Bet Din, addendum). For example, one case concerned an apartment given by the husband to his wife during the course of a marriage, and subsequently registered by the husband in the wife's name. The rabbinical court was required to decide whether the gift was absolute or conditional, and in doing so it applied the Jewish Law, which in such a case presumed that the gift was conditional, having been given "subject to the understanding that if she leaves him, he would not be regarded as having given it to her." The Supreme Court rejected the wife's argument that the rabbinical court exceeded the limits of its jurisdiction (hc 609/92 Boehm v. The Rabbinical Court of Appeals, 47(3) pd 288; per Deputy President Justice Menachem Elon).

Nonetheless, in a later decision, Justice A. Barak (then deputy president, and subsequently president of the Supreme Court) held that the Supreme Court's judicially created joint property doctrine must also be applied in the rabbinical court. His first argument was the obligation to act in accordance with the Woman's Equal Rights Law, 5711 – 1951, and the second, broader, argument was that the rabbinical courts are subject to the Israeli secular law with regard to property relations. Essentially, the underlying rationale of the decision is that Israeli civil law is territorial, and thus obligates all legal forums, including the religious or rabbinical courts (hc 1000/92 Bavli v. The Rabbinical Court of Appeals, 48(2) pd 221). (In accordance with this approach the Supreme Court also intervened when the rabbinical court ruled, in accordance with Jewish Law, on a matter involving an injunction against leaving the country. The Supreme Court's position was that the Israeli civil law should be applied, rather than the religious law on whose basis the rabbinical court had ruled – hc 3914/92 Lev v. The Rabbinical Court of Appeals, 48(2) pd 491.)

In an article published several years after his retirement from the bench, Professor Menachem Elon wrote a comprehensive critique of these decisions. Elon emphasized that the deviation from the Supreme Court's consistent position, whereby rabbinical courts rule in accordance with the religious law, was unjustified on a substantive level, as well as constituting a blow to the independence of the rabbinical courts and their ability to develop Jewish Law. In his article, Professor Elon proposed a number of options for the application of the joint property doctrine in accordance with Jewish Law (see *Minhag; *Dina de-Malkhuta Dina; and see Bibliography, Elon, "These Are Obiter Dicta" ("Eleh Hen Imrot Agav")). Professor Elon also warns that decisions such as these are liable to create tension between the various judicial forums, thereby jeopardizing the fundamental values of the legal system, which aspire, inter alia, to preserve peace and attain practical solutions to controversies between parties. Professor Elon further noted that decisions of this kind, while aspiring to harmony within the legal system, cause two other sources of disharmony: (a) between the law of the State and Jewish Law, which is the national law of the Jewish people, and (b) between the past (when the Jewish Law was developed) and the present and future, inasmuch as acceptance of Barak's position compromises the ability of the Jewish Law to develop, given that, in practical terms, the rabbinical courts in the State of Israel are the only forum in which Jewish Law is applied in an operative manner (see also the addendum to the entry *Bet Din).

rabbinical court's response to the supreme court's position

In their respective responses to the Bavli decision, the dayyanim of the Rabbinical Court of Appeals were divided. Rav Shlomo Dikhovsky opined that the rabbinical courts were obligated to rule according to the joint property doctrine by force of the rule "dina de-malkhuta dina" (see his article cited in Bibliography). He contended that halakhic rulings should be consonant with the halakhic view that dina de-malkhuta also applies in Israel. Moreover, the rule applies equally to legislation enacted in a democratic regime and to laws that are the product of judicial legislation. Inasmuch as the Israeli Supreme Court and the Knesset itself views court decisions as a part of the binding legal system of the State, there is no difference between judicial decision and legislation. Therefore, in his opinion, such case law should not be subject to the distinction that the halakhic authorities make between explicit legislation – to which "dina de-malkhuta dina" applies – and to rulings that are the result of local judicial discretion, in which the rule is inapplicable. All citizens of the State are cognizant of the "joint property rule" and guide their conduct accordingly, giving it the status of a custom (see *Minhag). Moreover, the fact that it is anchored in Jewish practice militates in favor of its acceptance by force of "dina de-malkhuta dina."Such is the case regarding the joint property doctrine, insofar as it derives from case law. Rabbi Dikhovsky finds halakhic anchorage for the Supreme Court's doctrine of joint property in the pre-nuptial written conditions (tena'im) agreed upon by the couple. The tena'im provide that the couple "will have equal control of their assets, and will not smuggle or hide them from one another, but rather will live together in love and affection." Based on his interpretation of this document, R. Joseph Colon (Resp. Maharik, no. 57), imposed a ban on a husband who smuggled assets from his wife. Rabbi Dikhovsky contends that an additional step should be taken, by declaring that in our generation the presumption regarding the couple is not confined to their reciprocal trust that neither of them will smuggle assets away, but rather is broader, and confers the wife actual control over half of the assets acquired by her husband (in this matter he also relies on Resp Maharsham 1.45, dealing with a gift that the wife received from her sister).

The Spouses (Property Relations) Law, 5733 – 1973 provides that the law also applies to rabbinical courts, in the absence of explicit agreement that the religious law will apply (Section 13 of law). Following the enactment of this law, the presumption is that every couple who married after its enactment knew that this was the legal position, and thus consented to premise their financial relations on the joint property rule. Under such circumstances, the rule of "dina de-malkhuta dina" should clearly be applied to such couples, and the rabbinical court should rule according to the joint property doctrine, and certainly to its delayed version regarding couples married after January 1, 1974.

When the parties agree to have their property disputes governed by secular law, that agreement should be honored, and the rabbinical courts should apply the joint property doctrine, by force of that agreement. Rabbi Dikhovsky ruled accordingly when on appeal, he overturned a decision of the Regional Rabbinical Court that refused to apply the joint property doctrine even though both of the parties had previously signed an agreement that the rabbinical court would rule according to this doctrine. In addition to the rationale of honoring the parties' expressed will, Rabbi Dikhovsky warned that failure on the rabbinical court's part to apply the joint property doctrine is liable to impair its status, and result in the loss of its jurisdiction over financial and property matters, even in its current limited format (the decision in its entirety is published after the article in Tehumin, 18 (1998), 18ff.).

A different opinion on the matter was expressed by Rabbi Avraham Sherman – also a dayyan on the Rabbinical Court of Appeals (see Tehumin, 19 (1998), 32–40; 20 (1999), 205–20). In his view, legislative enactments and legal pronouncements that stem, not only from the imperative of creating an orderly society and correcting faults occasioned by particular circumstances, but which rather reflect the world view of the legislators and the judges of the state courts, do not fall within the ambit of "dina de-malkhuta dina," because this contradicts the world view of the Torah. Empirically, it cannot be claimed that the "joint property doctrine" is a custom accepted by all, nor may one, on that basis, make a presumption that all married couples marry with the intention of distributing their assets equally. Furthermore, it is difficult to anchor the joint property doctrine in Jewish Law. When the law concerned is one that is intended to regulate the financial relations between a husband and wife, and not the well-being of the society and the State, the rule of "dina de-malkhuta dina" does not, according to this view, apply. Rabbi Sherman argues with Rabbi Dikh ovsky regarding the significance of the written conditions, but the main thrust of his argument is on the theoretical level: is it appropriate to adopt the Supreme Court's ideology, which is classified, in his view, as "the laws of the [non-Jewish] nations," or to act according to the original Jewish law without deviating from it.

According to Rabbi Sherman, it is precisely the Supreme Court's rationale for the joint property doctrine – namely, that it is a revolutionary step that alters relations within society, and intended to promote and ensure social justice based on gender equality – that justifies rejection of this doctrine by the rabbinical courts, which should rather continue to adhere to the traditional position of Jewish Law. He adds that it is precisely the application of the joint property doctrine, supplemented by the husband's continued exclusive obligation to support his wife and children, which creates inequality and, rather than equalizing the parties' status, confers a preferred status on the wife.

application of joint property presumption to "common law" spouses

Another question that the Israeli legislature and case law was required to address in this (and other) contexts concerns the phenomenon of couples that were not married in a religious or civil ceremony, but live together as a couple and raise families. In the beginning of the 1980s the Supreme Court decided by majority that the joint property presumption applies to such couples, relying on its conclusion that their way of life attested to their intention to be partners in their property (ca 52/80 Shahar v. Freedman, 38 (1) pd 443, per justices Barak, Bach). In his dissenting minority opinion, Justice Sheinbaum argued that the joint property presumption should not be extended by way of judicial legislation to include common law spouses. Justice Sheinbaum reasoned that the parties had knowingly and intentionally decided to live as a couple without binding themselves by a ceremony of marriage. As such, in the absence of a formal agreement between them, the application of the joint property presumption would not be consistent with their expectations and anticipations regarding the nature and consequences of their connection, to which they had given expression by their failure to entire into the binding legally recognized marriage. Furthermore, the aforementioned law of 1973 omitted granting any recognition of the "common law spouses" or "common law marriages" and hence there is no justification for applying the presumption by way of judicial legislation.

In later rulings the Supreme Court extended the scope of the joint property presumption as it applied to common law marriage, stating that it was not limited exclusively to their domestic assets, but also covered their commercial assets, although a higher level of proof should be required to persuade the court to apply the joint partnership presumption with respect to commercial assets or other non-domestic assets (ca 4385/91 Salem v. Carmi, 51 (1) pd 337).

The Supreme Court further held that where one of the partners in a common law marriage was killed in an accident, the surviving partner should be entitled to the same compensation (as a dependent) awarded by law to a surviving spouse who was legally married to the deceased (ca 2000/97 Lindorn v. Karnit, 55 (1) pd 12).

The common law spouse's right to the pension of a government employee, or of a soldier killed in action, was already recognized by Knesset legislation in the early years of the State of Israel.

Conclusion

Israeli law's approach to gender equality is not unique to the question of spousal assets, but rather is broader in its scope. In the early 21^st century, the Supreme Court considered equality as one of the constitutive values of Israeli law, and found anchorage for it in the Basic Law: Human Dignity and Freedom (notwithstanding that this subject is not explicitly mentioned in this law; see *Human Dignity and Freedom). In a famous decision concerning the matrimonial property of a couple that immigrated from Iran, President Barak stated that according to the principle of good faith, it is presumed that the couple intended that the infrastructure of their relationship would be based on the basic principles of the legal system of Israel, one of which is the principle of equality. Therefore, by applying the doctrine of joint property, a social goal is accomplished, leading to the promotion of social justice (cfh 1558/94 Nafisi v. Nafisi, 50 (3) pd 573, 605.

We have noted the various approaches of the dayyanim of the Rabbinical Court of Appeals. It remains to be seen how the rabbinical courts will in fact rule in matters regarding spousal assets. In any event, the rabbinical courts (the regional and the Rabbinical Court of Appeals) decided that where each of the spouses owned an apartment prior to their marriage, there is no presumption of joint property, and they based their judgment on section 5 of the Spouses (Property Relations) Law. When their ruling came before the Supreme Court, President A. Barak did not interfere with their ruling, and rejected the petition against the Rabbinical Court (hc 3995/00 Anon. v Rabbinical Court of Appeals, 56 (6) pd p. 883).

bibliography:

M. Elon, Jewish Law (Cases and Materials), 1999; idem, "Eleh Hen Imrot Agav…," in the Ariel Rosen Tzvi Memorial Volume (1998), 361–407; S. Dikhovsky, "'Hilkhat ha-Shittuf' – ha-Im Dina de-Malkhuta?" in: Teḥumin, 18 (1998); A. Rosen Tzvi, Yaḥasei Mamon bein Benei Zug (1982); idem, "'Medinah Yehudit ve-Demokratit': Abbahut Ruhanit, Nikkur ve-Simbiozah – Ha-Efshar lerabe'a et ha-Ma'agal?" in: Iyyunei Mishpat (1995), 479; A. Sherman,"'Hilkhat ha-Shittuf ' le-Or Mishpetei ha-Torah," in: Tehumin, 18 (1998), 32; idem, "'Hilkhot ha-Shittuf ' Eino Me'uggenet be-Dinei Yisrael," in: Teḥumin, 19 (1999) 205.

[Moshe Drori (2^nd ed.)]