The Ottoman Settlement [Old Version] 1916Discussion and Decision
12-34-56-78 Chekhov v. State of Israel, P.D. 51 (2)
- For the purpose of discussing the claim, we must understand whether the parties were common-law partners, and what the term means about their property relationship. For this purpose, we will begin by understanding the concept of common-law couples.
Civil Appeal Authority 5096/21 Anonymous v. S. Shlomo Insurance Company in a Tax Appeal (December 15, 2021) The Honorable Judge Willner explains the history of this institution, which was created out of the secular civil law in the country in light of the requirements of religious law in matters of marriage and divorce, and the objection of some couples to religious marriage or marriage "In Israeli law, "common-law couples" is a general term for couples whose relationship resembles those between married couples, but they are not legally considered married... ". This is a concept that describes a factual situation, entails various legal consequences, but does not constitute a status that subordinates personal status.
The Honorable Justice Willner also emphasized that recognition as a common-law couple has significant implications on the level of the internal relationship between the spouses as well as on the external relationship between them and third parties. Thus, on the level of internal relations, there are implications in a variety of areas, such as the application of the partnership rule, inheritance rights, and more. In light of these significant implications, "it seems that extreme caution must be exercised before declaring a couple to be common-law spouses, and one must adhere to the tests set forth in this matter in case law...".
- With regard to who are common-law spouses, after scanning the case law and its development, she noted that the test for determining common-law spouses is "... A subjective test that examines the intentions of the parties regarding the nature of the relationship between them. ... Spouses who decided, either explicitly or implicitly, to apply to themselves most of the civil-economic consequences of the institution of marriage and the consequences of the divorce, without receiving marital status (see: ibid., at para. 11; and see also: Biton case, at para. 18; Civil Appeal 3352/07 Bank Hapoalim v. Horsh, IsrSC 36(3) 248, 278-279 (2009);In Tax Appeal 2478/14 Anonymous v. Anonymous, at paragraphs 36-37 (August 20, 2015) [published in Nevo]; Lifshitz, at p. 65)."
Justice Willner further noted that in her opinion, the term "common-law partners" is an "archaic and even misleading" term, and suggested changing it and calling the relationship a "marital partnership", a term that reflects the meaning of couples who did not marry and agreed to apply to the relationship between them most of the financial rights and obligations of the institution of marriage.
- It was copied from Nevothat the decision whether a couple had indeed agreed to apply the aforesaid to their relationship would be based "on evidence that indicates their intentions. In this context, the question of whether the couple maintained a joint household and led a family life is of particular importance (see: Civil Appeal 621/69 Nessis v. Yoster, IsrSC 24(1) 617, 621 (1970); see also Shaw, at p. 495; Shershevsky and Corinaldi, at p. 1079)), but these data will serve only as indications for examining the intentions of the parties, among other circumstances and evidence relevant to examining this question (see and compare: Civil Appeal 79/83 Attorney General v. Shukran, IsrSC 39(2) 690, 694-695 (1985); Civil Appeal 107/87 Alon v. Mendelson, IsrSC 43(1) 431, 434 (1989); Civil Appeal 11902/04 Hassin v. Clal Insurance Company Ltd., at p. 4 (August 14, 2007) [published in Nevo])."
- The Honorable Justice Willner reiterated these words in Civil Appeal 3323/23 Shlomo Insurance Company in the Tax Appeal v. Anonymous [Nevo] (May 6, 2024) and added that the standard of proof that a common-law couple is a common-law spouse must be adjusted to the motives that were at the basis of the refusal to formalize the couple's relationship.
It was also determined that it is possible to prove a desire to apply civil-economic debts when, for example, there is an official registration of a joint residential address, a joint bank account, joint children, registration of the spouse as a beneficiary in his spouse's policy, or a formal ceremony of formalization of the relationship. It was held that it must be ensured that the legal result of the application of the rights and duties reflects the intention of the parties, and the court must examine whether it has been proven that the parties intended to "apply to themselves the legal consequences of married life.")hereinafter - the Shlomo judgments).
- Following these judgments, a question was raised both in Family Appeal 32785-01-24 (Tel Aviv District) Anonymous v. Anonymous (December 25, 2024) (hereinafter - Anonymous Case) and Family Appeal (Haifa District) 59086-02-25 Anonymous v. Anonymous (Nevo 8.1.2026) (hereinafter - Anonymous Matter) whether the two-stage test continues, according to which the question of whether the parties were common-law partners is first examined, and then the question and issue of property sharing between them is examined. Or, in light of the Shlomo rulings, there is now a one-step test according to which from the moment the parties are recognized as common-law partners, there is a partnership in their property relationship.
In a certain case, this question was left to be examined, whereas in an anonymous case, the Honorable Justice Sari Jayussi found that "the intention of the parties to participate must be examined as one of many conditions at the stage of determining whether the parties are common-law partners, and this is no longer required after it has been determined that the parties are common-law partners... The examination of the intention of the parties is intertwined with the question of whether we are dealing with common-law couples... We must locate an 'Archimedean point' in which the parties' relations have evolved into binding legal relations."
- The burden of proof in this proceeding rests on the plaintiff's shoulders (see in this regard Civil Appeal 52/80 Yeshayahu Shachar v. Mendel Friedman, 38(1) 443 (1984)) (hereinafter - the Shahar v. Friedman case), and it is a heavier burden than the burden that lies on a married couple in similar circumstances (Civil Appeal 4385/91 Rachel Salem v. Ram Carmi 51(1) 337 (1997), and the burden is heavier when it is not a clear family asset (High Court of Justice 4178/04) Anonymous v. Rabbinical Court of Appeals 62(1) 235 (2006), out of an effort not to force the parties to share property in a place where the couple chose not to apply such an arrangement to themselves.
- In various judgments, a list of evidence (open list) has been presented that can point to a relationship with an undertaking: "The evidence that can point to such a relationship is, living under the same roof, official registration at a common residential address, refraining from having marital relations with others, financial sharing in a joint household, a joint bank account, a prolonged period of partnership, the birth of children, and more (Biton above, paragraph 18 of the judgment, Civil Appeal 6434/00 Danino v. Moshe PD 56(3) 683, 689, Civil Appeal 107/87 Alon v. Mendelson PD 43 (1) 431, 433, Civil Appeal 621/69 Nessis v. Yoster PD 24(1) 617). Family Appeal (Haifa District) 418-12-08G. v. G.G. [Nevo](8.3.2009)
It was also determined in the family file 50340-09-11 A.L. v. D.P.M. (April 26, 2015)) Similar and additional options for parameters that will be used in examining the intent of the parties' obligation: