A couple gets married outside of Israel and perhaps even executes an agreement for the division of property, all why planning to immigrate to Israel later. Will the property division agreement be enforceable in the event of a divorce in Israel or upon the demise of one of the spouses?
A prenuptial agreement is an agreement executed prior to, or during, the marriage and has the status of a judgment. When the agreement is executed prior to the marriage it may be signed in front of a notary, but in any other case it must be validated by a Court. If a prenuptial agreement is not executed, the default under Israeli law is balance of resources, under which the assets of the spouses are deemed to belong to both equally, regardless of how they were recorded. A prenuptial agreement signed before an Israeli notary has the same level of "strength" as an agreement validated by the Court, thus very difficult to counter.
This rule is relevant also to people who were not married in Israel but decided to do migrate to Israel after they got married, bearing in mind that the law states that the rules to apply to the property regime of the spouses is the law of their place of residence at the time of the marriage, unless they set otherwise in a prenuptial agreement. However, even an agreement concluded in a foreign country does not necessarily exempt the spouses from the application of Israeli law. A case that reached the Courts in Israel concerned a Dutch citizen who married an Israeli citizen and before the marriage the spouses had drawn up a prenuptial agreement before a Dutch notary, who defined the couple's place of residence as the Netherlands and set that any property accumulated before the marriage or any property owned by one of the spouses would remain the exclusive property of that spouse. Shortly after the marriage, the couple moved to Israel and purchased an apartment, which, although both spouses had signed the mortgage together, was recorded in the husband's name only. In a legal proceeding that reached the Israeli Supreme Court in February, 2005, it was decided that the couple's place of residence was Israel, because that was their permanent place for most of their marriage, and therefore Israeli law applies. The prenuptial agreement executed with a notary in the Netherlands does not apply and the wife is entitled to half the rights to the apartment.
Prenuptial agreements are important both in the event of the death of one of the spouses and when the couple still does not know where they will live for most of their lives. For example, a case discussed at the Haifa District Court in September, 2019, involved an American woman who married an Israeli man in New York and upon his return to Israel, their relationship was terminated. After the man passed, the woman demanded half of his estate. Because the parties did not conclude a prenuptial agreement between them, the Court held that under Israeli law the separation between from the moment the man returned to Israel annulled her right to a balance of resources and therefore she is not entitled to any share of the assets he accumulated after their separation. While it is not possible to know in such a case what the original intent of the parties was, and the law applies, an Israeli prenuptial agreement would have, in such a case, allowed for a determination subject to the couple's wishes.
Therefore, when a couple intends to move to Israel in the future, it is advisable to draw up a prenuptial agreement before the marriage in front of an Israeli notary with expertise in international law. If a couple moves to Israel and does not have a prenuptial agreement at all, or has one that is not under Israeli law, it is recommended to use the assistance of a notary from a firm specializing in international activities so that he can carry out the necessary procedures to give validity by an Israeli Court to the existing prenuptial agreement or to an agreement that will be formed at such point.