Claims after the Litigation Settlement (Tel Aviv) 18668-11-23 Anonymous vs. Anonymous - part 2

Were the couple common-law partners?

20. The declaration of each of the spouses that they are "common-law spouses" does not necessarily establish a conclusion that the couple should be recognized as common-law spouses, since common-law spouses describe a factual situation, and it does not constitute a status (Civil Appeal 384/61 State of Israel v. Plesser, IsrSC 16 102).

Even the determination of the Honorable Judge Tamar Snunit Forer (the previous panel in the case), in the decision for temporary alimony of the joint daughter, that "the parties were common-law partners" (a decision for temporary alimony of July 16, 2019 in claims after the settlement of litigation 7713-05-19), does not constitute a "estoppel of the company", inter alia, because the decision in the company was not essential for the purpose of the decision for temporary alimony (Civil Appeal 1041/97 Avi Serero v.  Tomares ShoalsIsrSC 55 (1) 642).  Therefore, it is necessary to examine the existence of the criteria for the recognition of common-law couples as determined in case law.

21. A couple will be recognized as a common-law couple if two elements are met: the first element - a couple's lifestyle. The second element is based mainly on the rationale of joint effort; it is based on the concept that spouses contribute equally to the well-being and livelihood of the family, whether through external work or through domestic work, in a manner that justifies the application of a regime of partnership to their property and to share it equally (Shahar Lifshitz, The Marital Partnership, p. 118).
22. In the case law, it was determined that a couple would be recognized as a common-law couple if they "intended to maintain a relationship with various legal implications, and in the process intended to apply to the relationship between them the full range of economic rights and obligations deriving from the laws of marriage" (Civil Appeal Authority 5096/21 Anonymous v. Shlomo Insurance Company in a Tax Appeal [published in Nevo], December 15, 2021). Spouses who have decided, either explicitly or implicitly, to apply most of the civil-economic consequences of the institution of marriage to themselves, will be recognized as "common-law spouses." The test is a subjective test, which examines the intentions of the parties regarding the application of the duties and rights deriving from marital life (Civil Appeal Authority 3323/23 Shlomo Insurance Company in Tax Appeal v.  Anonymous [published in Nevo], May 6, 2024).
23. In recent case law, it has been held that imposing duties and rights on unmarried spouses requires restraint and restraint prior to recognizing them as common-law couples, since it must be ensured that the couple indeed intended and wished to bind themselves to these rights and obligations (Civil Appeal Authority 3323/23 at paragraph 12 of the judgment).
24. After examining the arguments of the parties and the totality of the evidence, I have reached the conclusion that the parties should be recognized as common-law couples during the period of their joint life. The couple lived a family life and managed a joint household with a joint effort. This conclusion is based on the following facts:
25. During the period of their life together, the couple lived together in a rented apartment. The defendant worked for the plaintiff's business, and her salary was transferred directly from the plaintiff's business to the plaintiff's private bank account.  From this calculation, the parties managed and financed their day-to-day lives.

Thus the defendant testified: "In exchange for a salary that was never deposited into my account, because he did not give it, he said that it entered into the conduct of the house, it was my salary for the house" (p.  24, lines 23-24 of the protégé); "But I knew that this money was going to ***, and that *** was running the house we live in with it" (p.  24, lines 29-30); "I didn't receive them, it was a salary slip of 6,000 shekels that went into the management of the house, yes" (see the defendant's testimony at p.  32, line 13 of the protégé).  In her summaries as well, the defendant claimed that "she financed her meager salary for the current household expenses, and even transferred him about ILS 1,700 every month for household expenses..." (paragraph 8 of the summaries).

1. The defendant admitted that the plaintiff opened a stall to sell ready-to-eat food that she had cooked. The defendant admitted that she did not receive payment for this, and in her view, this was natural and logical.  The defendant replied in the interrogation: "Let me ask you another question.  You're in a relationship with someone and you're managing something, and she's helping you, so what will she ask you for a salary? You run a whole house with her" (p.  37, lines 22-23 of the protégé).
2. According to the rule of sharing rights, spouses who lead a proper lifestyle and joint effort are presumed to have the property accumulated jointly owned, even if they are registered in a different appeal by one spouse, or are in his sole possession, in the absence of clear evidence that a different intention was formulated (in Tax Appeal 2478/14 Anonymous v. Anonymous [published in Nevo], August 20, 2015). In Tax Appeal 1983/23 Anonymous v.  Anonymous [published in Nevo] August 10, 2023).
3. Alongside the rule of sharing in rights, there is also the rule of sharing in debts (Civil Appeal Authority 8791/00 Anita Shalem v. Twinko Ltd., IsrSC 62 (1) 165). "The presumption of sharing debts complements the presumption of sharing in assets.  The spouse who enjoys the fruits of the partnership with his spouse must bear the burden of the debts created during the joint life.  The two holdings reflect the essence of the joint household - enjoyment of the profits of the partnership alongside the joint bearer of expenses and losses" (Civil Appeal 3002/93 Ben Zvi v.  Sittin, IsrSC 49 (3) 5, p.
4. The presumption of sharing is contradictory. In order to contradict the presumption and exclude certain assets from the application of the presumption of partnership, weighty evidence is required.  The burden is on the person who claims that it does not exist (Civil Appeal Authority 964/92 Oron v.  Oron, IsrSC 47 (3) 758).
5. According to case law, when it comes to married couples, there is no room for a distinction between family assets and business assets (Civil Appeal 122/83 Basilian v. Basilian, IsrSC 40 (1) 287).  However, in the case of common-law couples, in order to apply the partnership between common-law spouses to business assets as well, some additional evidence is necessary, and the presumption of partnership alone is not sufficient (Civil Appeal 4385/91 Salem v.  Carmi, IsrSC 51 (1) 337).

From the general to the individual

29. In the present case, the hearing will not deal at all with the question of the scope of the applicability of the presumption of sharing in debts, for the reason that, according to the plaintiff, the claim deals only with loans taken by him from his personal account and not from his business account. According to the plaintiff's version, there was an agreement between the couple that the plaintiff remained the owner of the business, with his rights and obligations, and therefore the claim dealt only with the debts of his personal account.

The plaintiff testified that he had two bank accounts, one business and one private; and that "all these loans are from the private account from which we operated, and from which we paid rent..." (p.  3, lines 28-29).

30. The fact that the presumption of partnership has been established does not turn any debt claimed by the plaintiff into a joint debt. Before the burden of contradicting the presumption shifts to the defendant, the plaintiff must prove, not only the existence of a loan, and not only that the loan was taken from his personal account, but also that the use of the loan funds was for the purpose of covering joint debts. The question being examined is whether the plaintiff proved the existence of the loans and that the loan money was used by the plaintiff to cover joint debts?
31. As stated above, the plaintiff claims that during the course of the joint life, he took loans from his personal account, and as of the date of the separation, the balance of which for disposal amounted to ILS 417,833; The plaintiff petitioned the defendant to return to him the sum of ILS 208,916. I will examine each and every one of the loans below.

Loan in the amount of ILS 300,000 from the plaintiff's mother

32. The plaintiff attached 15 printouts from which it appears that the plaintiff's mother made money transfers from her account at Mizrahi Bank to the plaintiff's account at Discount Bank. According to the plaintiff, this is a loan he took from his mother.
33. The plaintiff testified that no loan contract was entered into between him and his mother (p. 10, line 14 of the protégé). The plaintiff did not submit an affidavit of his mother and did not ask her to testify.  Moreover, the plaintiff did not attach any evidence to prove the return of the money to his mother.
34. In the absence of a loan agreement, and at the very least, the mother's testimony, and in the absence of proof of the repayment of the loan, it is not possible to determine that the mother transferred the money to the plaintiff as a loan. Moreover, even if it is a loan, if the plaintiff did not repay the loan to his mother, the cause of action is that of the plaintiff's mother and not of the plaintiff.
35. The rule is that the failure to bring a witness or a relevant document, in the absence of a reliable and reasonable explanation for it, acts to the duty of the party who refrained from hearing it, and establishes a factual presumption of his duty, according to which the law of refraining is the same as the law of an admission of a matter, which, had the same evidence been brought, would have acted in accordance with his duty (see Civil Appeal 465/88 Bank for Finance and Trade in Tax Appeal v. Salima Matityahu, IsrSC 45 (4) 651).
36. An analysis of the printouts of the transfer of funds from the plaintiff's mother leads me to the conclusion that the plaintiff's version was contradicted and that it was not a loan, certainly not a loan intended to cover joint debts. What is my conclusion based on? I will analyze the money transfer printouts below.

37. All of the aforementioned financial transfers were made from the mother's account to the business account of the plaintiff H.N. However, according to the plaintiff's claims, all the loans that are the subject of the lawsuit were taken from his personal account and not from his business account.  Even if the plaintiff were to prove that the money he received from his mother was a loan, the plaintiff's claims that the defendant was obligated to pay restitution are concealed, since his mother's money was transferred to the plaintiff's business account. 
38. The plaintiff testified that his mother paid a large part of the defendant's debts to the Execution Office (p. 10, line 11); not only was no proof of this claim brought, but the plaintiff's version is inconsistent with the fact that all the financial transfers made by the mother to his business account were made after the separation of the couple, and there is no logic for the plaintiff's mother to clear the defendant's debts after the separation.
39. Even if the plaintiff had claimed that he had managed between the business account and the private account without distinction, he would have had to prove that the money he received from his mother was used to cover joint debts. For this purpose, the plaintiff had to attach a statement of the private and business bank accounts. The plaintiff did not attach the bank statement statements.
40. In light of the above, I have reached the conclusion that the claim to oblige the defendant to return the sum of ILS 150,000 should be dismissed.

Loans from Discount Bank

41. To his affidavit, the plaintiff attached two printouts of a loan he took from Discount Bank: one loan (No. ---), dated August 4, 2016, which was taken by the plaintiff from the private bank account *** in the sum of ILS 58,000, and its balance for disposal on the day of separation is in the amount of ILS 33,833; A second loan (No. ***), dated December 15, 2017, which was taken by the plaintiff from the private bank account *** in the sum of ILS 40,000 and the balance for disposal on the day of separation is in the sum of ILS 33,999.
42. According to the plaintiff, "the two aforementioned loans are loans taken from the plaintiff's private account (and not of the business) and the money was used to cover joint debts" (paragraph 12 of the summaries). The plaintiff did not attach the bank statement statements, from which it will be possible to learn about the income of the loan money, the status of the account on the day the loan was taken, and the use of the loan funds. The plaintiff was asked why he did not attach bank statement statements, and he replied that he did not think that bank statements should be attached, but only the loan statement (p.  17, lines 25-26).
43. The plaintiff is not fulfilling his duty by presenting a loan statement from his private bank account and merely claiming that the funds were used for the purposes of covering joint debts. The plaintiff must prove not only that he took a loan from his personal account, but that the loan money was actually used to cover joint debts, such as living expenses and household needs, and that he did not transfer them for the benefit of the business or that he did not purchase assets in which the defendant is right.
44. Imagine that the plaintiff took a loan from his personal account, and a day before or even minutes earlier, he withdrew from the private account an amount identical or similar to the amount of the loan he took from the private account. If so, who will stand in our hands that the loan money that the plaintiff took from the private account was not actually used by him in the business account?
45. A continuous current account statement is the supplementary document to the loan printouts that the plaintiff attached, without which the plaintiff did not meet the burden of proof. The plaintiff's answer that he did not think that he had to attach a current account statement is not reliable to me; The plaintiff showed a handkerchief, but covered a handkerchief; His refusal to attach a conclusive document in his possession to prove the use made of the loan funds shows that the disclosure of the document would have been detrimental to him.
46. The plaintiff was asked in his interrogation: "... Where did that money go, please?" and he replied: "Motorcycles and cars. I have one motorcycle of the business, of the work, of what" (p.  5, lines 6-7 of the protégé).

First, the plaintiff admitted that he had purchased a motorcycle of the business with loan money.  If so, even if the loan was taken from the private account, but the loan money was used by the plaintiff to purchase a business asset, the defendant is not responsible for that debt.  Second, what happened to the motorcycles and cars? Were they sold? Where were the assets in return? Even if the funds were used to purchase family assets, the defendant's obligation to repay the loan is contingent first and foremost on sharing the same property, and calculating the difference between the value of the property and the debt due from it.  The plaintiff did not disclose what happened to the assets he purchased from the loan, and did not share the assets with the defendant, and therefore it has no obligation to bear the debts of those assets.

47. In light of the above, I hereby dismiss the claim to charge the defendant with the repayment of the two loans to Discount Bank.

Credit Debts

48. According to the plaintiff, a debt has accumulated in favor of the credit company in the sum of ILS 50,000. In support of this claim, the plaintiff attached Appendix D, entitled: "Credit Debts" dated October 20, 2021. A perusal of the document reveals that this is the approval of balances of the two loans to Discount Bank.  In light of this, the plaintiff did not prove the existence of "credit debts" in the sum of ILS 50,000, and the claim to charge the defendant with restitution in respect of this component should be dismissed.

Rent

49. According to the plaintiff, after the date of the separation, he continued to pay the rent for the apartment that the couple rented together, while the defendant continued to live in the apartment for an additional two months. The plaintiff petitions to charge the defendant with the return of the sum of ILS 13,000. According to the plaintiff, the defendant refused to leave the apartment upon the separation, and promised that she would bear the rental costs.
50. The plaintiff attached to the statement of claim a copy of two checks in the sum of ILS 6,500 each (Appendix E). The defendant does not dispute the fact that the plaintiff paid the rent for her for a period of two months after the separation, but according to her, the plaintiff is expected to act as someone who defines himself as the defendant's common-law partner.
51. Despite the fact that the plaintiff paid the rent for the defendant for the period after the separation, I have reached the conclusion that the plaintiff is prohibited from claiming the right of restitution in respect of the rent, for the following reasons.
52. In his summaries, the plaintiff cites his claim in the statement of defense that he submitted to the alimony claim (claims after the settlement of litigation 7713-05-19), in order to prove that he did not give up his claims for the repayment of the loans. This is what the plaintiff argued in the statement of defense for alimony (paragraph 37):

However, in the same statement of defense, the plaintiff argued regarding the rent in the following terms:

53. In reading the plaintiff's arguments in the statement of defense for the alimony claim (from 2019), the following conclusions arise: a) The plaintiff gave his consent to continue paying the rent until the end of the lease period (paragraph 34 of the statement of defense). b) The plaintiff asked the court to take him into account at the time of awarding the alimony due to the liability he took upon himself to pay the rent, and he is barred from claiming restitution today. c) The plaintiff insisted on the right to repay the loans, and in contrast, did not claim any right in relation to the repayment of the rent.  d) The plaintiff filed the claim with considerable delay, as aforesaid, more than five years after the separation, and in fact waived and abandoned the claim for restitution of the rent [Civil Appeal 6805/99 Talmud Torah and Yeshiva Etz Chaim in Jerusalem v.  Jerusalem Local Planning and Building Committee, IsrSC 57 (5) 433].
54. In light of the above, I hereby dismiss the claim to oblige the defendant to refund the rent.

Movables

55. According to the plaintiff, when he left the apartment, he asked to take half of the movables with him, but the defendant refused. The plaintiff petitions to obligate the defendant to pay him half of the value of the movables in the sum of ILS 19,650. The plaintiff attached to the lawsuit a list of movables that includes, inter alia, a living room, appliances..., a television screen and more.
56. The law of the claim to obligate the defendant to pay half of the value of the movables should be rejected, for two main reasons:

One - a litigant who wishes to prove his claim in a civil law, is required to meet the burden of proof.  This burden consists of two: the burden of persuasion and the obligation to bring evidence.  The basic rule regarding the imposition of the burden of persuasion is that the one who takes the proof out of his friend is on him.  As a result, the plaintiff bears the burden of persuasion regarding the factual foundations of the cause of action, and if he does not meet this burden, the significance of this is - the dismissal of the claim (Civil Appeal 8385/09 Sajur Local Council v.  Sonol Israel in Tax Appeal [published in Nevo], May 9, 2011).