Purposes of the Legislation
- The aforesaid conclusion is also consistent with the various purposes underlying the arrangement set forth in the Property Relations Law with regard to the approval of property agreements between spouses. At this stage, it is therefore appropriate to address these purposes, which have already been discussed over the years in the case law, and to examine them in the light of the subject before us (for more information, see also: Yitzchak Cohen "on the primordial demands of Approval of a prenuptial agreement and withdrawal from them" Law Scales 12:45, 50-52 (2019) (hereinafter: Cohen, approval of a prenuptial agreement)).
- Free Consent and Prevention of Discrimination - Much has been written in the judgments of this court about the need to approve a prenuptial agreement made between spouses in order to prevent the fear of deprivation of one of them. In accordance with this purpose, the role of the court - as the language of the Section 2(b) The Prenuptial Relations Law is to ensure that the agreement reflects the true will of the parties and that there is discretion in relation to the provisions written therein (see, for example: Civil Appeal 4/80 Monk v. MonkIsrSC 36(3) 421, 428 (1982); Additional Civil Hearing 1558/94 Nafisi v. NafisiIsrSC 50(3) 573, 591-592 (1996); P"m 8063/14, in paragraph 16). I have discussed this in other municipal requests 1629/11 Itzhaki v. Wachter [Nevo] (4.11.2012) (hereinafter: the case Itzhaki) by saying:
"At the basis of this provision is the understanding that when drafting a prenuptial agreement, the spouses may be subject to emotional pressure, as well as the recognition of the centrality of this agreement to regulating the rights of the spouses for a period that may be long and unpredictable. Against this background, the existence of an external control mechanism is important, and all the more so in view of the need to ensure that the rights of the weak spouse in the marital relationship are not deprived, in the sense that the judicial instance examined that the agreement expresses the full, free and informed consent of both spouses" (ibid., at paragraph 4 of my judgment).
- Legal Stability and Certainty - In addition to the desire to protect the rights of both parties, the approval of the prenuptial agreement allows them to ensure legal certainty regarding the agreements between them. Once the agreement is given binding effect, the couple is aware that the arrangements included in it will henceforth define the property relationship between them. As the judge said א' רובינשטיין In one of his rulings:
"Not only is the court's strict adherence - and even satisfactorily - to the lawful approval is the legislature's commandment, which is reasoned (as aforesaid) on its side, but it also increases certainty as to the question of which agreements came out of a non-binding draft and reached a prenuptial agreement, and which remained as an additional geological layer in the history of the negotiations, without a 'bottom line' of binding validity" (LA 7734/08 Anonymous v. Anonymous, Paragraph 19 of his judgment (April 27, 2010) (hereinafter: LA 7734/08)).
- Removing tensions and reducing disputes - The possibility of drafting a binding prenuptial agreement is also important in view of the desire to prevent future conflicts within the marital relationship. It is not for nothing that the legislature granted the opportunity for spouses to draw up a prenuptial agreement and approve it At the beginning of their marital journey Even before they got married, as it turns out From Section 2 of the Property Relations Law. This can reduce tensions within the marital relationship, and all the more so when - sometimes - the parties decide to separate. As the judge noted M. Mazuz In a proceeding that dealt with the relationship between a prenuptial agreement and Section 8 Law Inheritance, 5725-1965:
"There is no doubt that drafting prenuptial agreements between spouses is an important means of regulating the relationship between spouses, and there is a public interest in encouraging such agreements in order to prevent disputes and litigation. And when such an agreement is put in writing, at the behest of the legislature, and given the approval of the court or tribunal, after it has been found that 'the couple has made the agreement... With free consent and understanding of its meaning and consequences, it is difficult to imagine that such an agreement would be declared void retroactively in light of the provisions of section 8 of the Inheritance Law" (CA 1811/20 Anonymous v. Anonymous, para. 16 [Nevo] (April 13, 2021). emphasis added).