(1) assets they had on the eve of the marriage or received as a gift or inheritance during the marriage;
...
(c) In this section, "all the assets of the spouses" - including future pension rights, retirement compensation, study funds, compensation funds and savings".
- According to Section 5 of the Law, assets that one of the parties had prior to their marriage are excluded from the overall balance of assets. At the same time, the matter is not so clear, and the presumption that appears in the section is contradictory. Alongside the provisions of the law, the case law determined that a partnership may be created between spouses by virtue of other laws, due to a gift or agreement to share, whether explicitly or according to conduct, in parallel with the property regime set forth in the Property Relations Law (see: High Court of Justice 2533/11 Anonymous v. The Great Rabbinical Court of Appeals [Nevo] (October 26, 2011)).
- In case law, it was held that it is possible to prove a specific intention to share in an "external asset" by virtue of the general law - contract law, property law, trust law, etc. - when the burden of proof is on the claimant of the intention to share in the "external asset", and when each case is examined according to its circumstances (see: Other Municipality Applications 2084/91 , 1915/91 and 3208/91 Yaakovi v. Yaakovi et al., Knobler v. Knobler, IsrSC 49(3) 529 (1995), Civil Appeal Authority 8672/00 Abu Rumi v. Abu Rumi, IsrSC 56(6) 175 (2002) ("Abu Rumi Case"), Civil Appeal 7687/04 Sasson v. Sasson, IsrSC 59(5) 596, 614 (2005)).
- The starting point is that the court will order the sharing of assets where the intention of sharing has been proven by a real positive perspective (see: Civil Appeal 686/85 Western v. Maaravi, IsrSC 40(2) 631 (1986)). It is incumbent upon the court to search for the true intention of the couple. In other words, whether there is a genuine agreement between the spouses to share during their lifetime, in which case it is possible to establish a partnership in the residence that is not registered in the name of both spouses for one reason or another. (See: Tax Appeal (Haifa) 316/05 Anonymous v. Anonymous [Nevo] (February 22, 2007).
- The question of whether an unregistered party has been able to prove by virtue of the general law that he has rights in the property by virtue of the doctrine of the "specific intention of sharing" is a question of fact. The data and facts should be examined on a case-by-case basis and look for "something else". In particular, it is necessary to examine the intention of the parties, their legitimate expectation, the agreements that were agreed upon and the circumstances of life in relation to the specific property. As the case law indicates, the threshold of the burden in relation to a residential apartment has been reduced and it has been said that it is possible to suffice with promises and active representations and reliance. See Tax Appeal 1398/11 Anonymous v. Anonymous, [Nevo] (December 26, 2012) (hereinafter: "In Tax Appeal 1398/11"), and another case law that will be quoted below.
- In examining the sharing of a "residence" (as the woman's claim in our case), the case law emphasized the unique nature of the residence as a clear family asset and as the most significant asset of the couple, so that it is necessary to be lenient with the spouse who claims to share At the same time, it was held that the existence of a marriage, even if it is prolonged, is not sufficient to determine that there was an intention to share in a dwelling that is an "external asset", thus, it was held that at the end of the day it is a decision that depends on concrete circumstances (see: in Tax Appeal 5939/04 Anonymous v. Anonymous, IsrSC 59(1) 665 (2004) (hereinafter: "in Tax Appeal 5939/04"); In Tax Appeal 10734/06 Anonymous v. Anonymous [Nevo] (March 14, 2007); inTax Appeal (Jerusalem) 818/05 Anonymous v. Anonymous [Nevo] (May 8, 2006), and see also the article by the scholar Shahar Lifshitz "Family and Property Relations: Challenges and Tasks in the Wake of Amendment 4 to the Property Relations Law" Laws I 227, 261-264 (2009) (hereinafter: "Lifshitz's Article")).
In the Abu Rumi case, it was held in this context: