The same is true in his case.
- Therefore, as I noted above, I found that the circumstances here are special circumstances that justify a half-by-half-way division. In fact, in this case, the amount of money that financed the equity for the purchase of the apartment is sufficient to establish an outcry of fairness that requires an unequal but equal and fair distribution.
This division is consistent with the purpose of the provision of section 8 of the Property Relations between Spouses Law, 5733-1973 – to allow the court to deviate from the arrangement in section 5 in order to uphold the principles underlying the arrangement, equality and autonomy, where a half-for-half balance will not lead to the achievement of the purposes of the law. The explanatory notes to section 8 of the bill read:
"The provisions of sections 7 to 9 of the bill [sections 5-7 according to the current version of the law] are adapted to the presumed intention of most spouses and to the normal cases of harmonious and prolonged marriage, but the reality is not so simple and standard. There may be cases in which the general arrangement will lead to unjust results and whose special circumstances require a deviation from the norm. The proposed clause is intended to grant the court the authority to take into account such special circumstances... This authority is formulated quite broadly, in order to enable justice to be done between the parties in each and every case."
See Tax Appeal 7272/10 Anonymous v. Anonymous, [Nevo] dated 07/01/2014.
- The flexibility granted to the court by the provision in section 8 of the Property Relations between Spouses Law, 5733-1973, allows for a fair balance of resources, even if it is unequal. See also 51056-09-20 Anonymous v. Anonymous, [Nevo] of March 23, 2021, pp. 10-12 of the MovingVenue Line, and as he called it in another case, "a sophisticated toolkit with the help of which the court can bring about a proper and just balance even in exceptional cases and in special circumstances, cases that do not fit the dimensions of that garment that was sewn uniformly by virtue of the essence of the law...". See Family file (Petah Tikva) 38559-05-11. S. v. D. S., [Nevo] dated 01/12/2013.
- In the Tax Appeal 3771/21 Anonymous v. Anonymous, [Nevo] dated June 24, 2021, the Supreme Court rejected an appeal against the District Court's decision to relocate a hearing that approved a half-way division, inter alia, due to personality characteristics that would allow, if not, a faster rehabilitation for the spouse. This statement is forward-looking; On the other hand, in the Tax Appeal 1955/17 Anonymous v. Anonymous, [Nevo] dated 18/04/2017, the question of whether there is room to determine due to past acts (in the case of delay and mortgage payments) that it is possible to make use of a division that is not half-by-half, even when the property is registered in the name of both parties and that the registration does not necessarily constitute an agreement within the meaning of section 5(3) of the Property Relations Law. Between Spouses, 5733-1973. The Honorable Justice Rubinstein (as he was then called) wrote there:
"...I find it necessary to leave for consideration what may appear to be the District Court's determination, that in essence as a rule – albeit while leaving room for exceptions – there is no room for the application of the various balancing mechanisms set forth in the Property Relations Law, where we are dealing with an asset registered in the name of both parties and jointly owned by them. In my opinion, the emotional relationship between the spouses should be viewed from the perspective of the Property Relations Law, i.e., the entire relationship between the spouses and not a mere "partnership". Despite the high status of the property right and the basic rules that apply to the dissolution of a property partnership, there are weighty reasons for a softer approach when we are dealing with the dissolution of an asset – certainly the apartment – that is jointly owned by both parties, as part of the dissolution of the family unit...I will further add that if the court finds, in exceptional circumstances, that a half-for-half balance is unjust in the circumstances, and that the couple has no property other than the residential apartment registered in their name in equal parts, it may be wondered whether there is room to rule out in advance the possibility that section 8(2) of the Law will be used and it will be determined, as an exception, that the dissolution of the partnership and the sale of the property will be done in an unequal manner. Personally, I doubt whether it can be argued that since we are dealing with assets registered in the name of both spouses, we are dealing with "assets whose value the couple has agreed in writing that their value will not be balanced", as stated in section 5(3) of the Law, and therefore do not fall within the scope of the assets that are balanced..."
- This approach is acceptable to me; It cannot be assumed that the sum of NIS 1,137,500 of the defendant's inheritance money, which she also married with the plaintiff in mortgage payments, will come out of the marriage with only a sum of approximately NIS 900,000 – an amount that is less than the amount of her inheritance money, and the plaintiff, despite the fact that he did not "invest" external sums at all (except for funds from personal labor), will come out with the same amount.
The fact that the defendant will be left with a sum significantly lower than the amount of her inheritance money is unjust, and this raises the cry of fairness. Justice and honesty require a division that is not half-by-half.
- It should be added that as detailed above, the intention to give a gift or to give up the way of registering rights in equal parts is an intention that can be contradicted. Although the burden is heavy, in the circumstances here I found that the defendant met this burden;
In this context, I will refer to the calculation made by the plaintiff, the purchase financing calculation, Appendix 9 in Exhibits N/1; the name of the plaintiff who made the calculation, colors the funds by defining them as "inheritance funds" that the defendant defines. The plaintiff's claim that the funds were assimilated into the joint account does not help the plaintiff, since at the relevant time the parties' bank accounts were in a debit balance, and therefore this is not an assimilation, and also since there is no parallel assimilation. However, the fact that inheritance funds were used to cover mandatory balances and repay loans will be given weight when determining the rate of distribution, since funds that were used to repay mandatory balances and loans are not the same as funds used to finance the purchase of the apartment.
- Hence, what is the rate of distribution? Providing an answer to this question requires an examination of the sums received and the nature of the use made of them, as well as the value of the apartment and the passive betterment of the value of the apartment rights – of course, passive betterment must be separated from active betterment (increase in the value of the property), and the sums spent for the needs of the joint life must be separated, see in this context Appendix 9 in Exhibits N/1; where the plaintiff made a calculation and details of the use of the funds; Repayment of a loan to the plaintiff's mother, repayment of a loan to the bank, coverage of a mandatory balance in the bank, mortgage consulting, attorney's fees, brokerage, purchase tax, engineer checks, equity for the purchase of the apartment, payment of purchase expenses and more.
The sum of NIS 100,000 from funds on the defendant's inheritance account to finance the surrogacy process should also be taken into account, see Exhibit 1 in Exhibits N/1, the fact that according to a court expert opinion, the average annual difference of earnings gaps is NIS 247,357 before tax and social contributions, in favor of the plaintiff, the fact that the defendant is entitled to a budgetary pension while the plaintiff is self-employed, and the rest of the circumstances of the matter.
- Here are the data:
A total of NIS 1,149,181 was received in inheritance funds;