Civil Appeal 48399-09-24 Anonymous. Anonymous - part 6

This purpose is also consistent with the general purpose of agreements between family members, which strives to avoid unnecessary litigation and to create a "fertile ground" for future disputes (see and compare: Matter Singer, at p.  498).

37. Indeed, these purposes were discussed in relation to the drafting of a binding prenuptial agreement between married spouses or about to marry. However, they are relevant to our case, because they have implications for the consideration of the approval of an agreement between common-law spouses, who recognize the possibility that they will marry up the road.  As clarified in the matter Singer:

"The purpose of the two pieces of legislation - both the Property Relations Law and the Family Court Law - is not to create a distinction between married couples and those who are not married, but rather to provide tools for the parties to reach an agreement between them that is consistent with judicial standards, and it may be more stable than in an agreement that was not submitted for approval.  The value at the heart of the matter is recognition of the existence of the parties' final mind with regard to the nature and nature of the financial arrangements between them, which is clear that it does not stem from their being married, but from the existence of a life together" (ibid., at p.  500).

38. More specifically, with regard to the issue before us, it can be conceived that all of the purposes detailed - free consent and prevention of discrimination, legal certainty, as well as the removal of tensions and the reduction of disputes - support the possibility of a couple being able to formulate a one-time agreement between them (and not in stages), provided that the court finds that it was given in good faith and included an explicit stipulation of the basic arrangement set forth in the law. This conclusion can ensure free consent and the creation of certainty on the one hand, and will prevent casting a shadow over the relationship between the parties on the other hand (due to the need to conduct additional negotiations on the eve of the marriage).
39. The question before us can also be examined by way of relating to the results of the alternative option, i.e., the interpretation according to which additional approval of the agreement between the spouses is required on the very eve of the marriage. When common-law couples are aware of the requirement that the agreement between them be "opened" on the occasion of the marriage, which they view as an existing possibility, a cloud of uncertainty may hover over them that will accompany them until the moment they are required to approve a new agreement, a period that may last for years.  Will the agreement in the form that has already been approved be acceptable to the other spouse in a few months or years? Is it possible in certain circumstances or in preparation for a change in the relationship to be "blackmailed" on the part of one of the spouses, who sees it as a possibility to "allocate improvements" in relation to the provisions of the agreement? These are troubles that may accompany the parties in the "interim period," which may not be short, and in turn lead to unnecessary tension and conflicts.  In this situation, the agreement that has already been signed and approved will serve only as a starting point, without having the full and binding status as a document regulating property issues as a whole.  On the face of it, this is an undesirable outcome.
40. It is not for nothing that the legislature has refrained from unequivocally allotting the relevant time period for drafting and approving a prenuptial agreement before the wedding. Just as couples are different from each other, their circumstances may also change.  Some plan a marriage for a long period of time, and some do so in the form of a short-term decision.  The law should be adapted to all couples.  To this, it should be added that the vicissitudes of life teach us that even a confirmation that is intended to be made close to marriage may be revealed in retrospect as a confirmation that was given long before it.  In practice, there may be situations in which a couple approves a prenuptial agreement for their wedding, but it is later canceled or postponed - whether by their will or due to circumstances that are not dependent on them.  In this state of affairs, should the validity of an agreement that has already been approved in the past be questioned? Is it necessary to distinguish between a marriage plan that was canceled and subsequently renewed for subjective reasons on the part of the couple and one that was postponed due to the hardship of the times, including illness or war? From my point of view, it is appropriate to adopt a legal interpretation that does not require addressing these questions.  This is because there is an inherent difficulty in defining the exact period of time within which a prenuptial agreement can be approved in order for it to be validated by virtue of the Property Relations Law.  Therefore, as long as the couple declares the possibility that they will marry in the future and explicitly regulates it in the agreement between them, the family court will be able to approve it both in relation to the couple's life together as common-law couples and in relation to their marriage, to the extent that it materializes.
41. It should be emphasized here that the absence of a strict time limit in relation to the approval mechanism set forth in the Property Relations Law does not indicate the absence of other restrictions that ensure the seriousness of the agreement and its binding nature. As you know, Property Relations Law Determines In section 2(b) Additional conditions for the approval of the agreement.  The relevant court must ensure that the couple "made the agreement or change with free consent and understand its meaning and consequences." A similar provision exists Regulation 43(a) to the regulations of the Family Court in relation to agreements brought for approval by virtue of the Family Court Law.  It should be noted that this court has already ruled in the past that not every property agreement between spouses will be a prenuptial agreement (see: P"m 8063/14in paragraphs 17-19).
42. On the practical level, the proposed interpretation of the law obviates the need to concretely address the status of property agreements between common-law spouses that were approved in the past, while stipulating that they will continue to apply during the period of the marriage or also according to Property Relations Law.  These will continue to be valid, and the result I have reached does not change their status.
43. More than necessary, I will note that over the years, a certain "erosion" has been made in the demand for the approval of a prenuptial agreement, so that sometimes agreements that did not meet this requirement are also validated, depending on the circumstances of the case (see, for example: Civil Appeal 151/85 Rodin v.  RodanIsrSC 39(3) 186 (1985); P"m 7734/08, in paragraph 17 [Nevo].  See also: Cohen, approval of a prenuptial agreement, at pp.  72-76).  For myself, I am of the opinion that the requirement of approval is important and should be guarded against emptying it of content (see: Matter Itzhaki, in paragraphs 5-6 of the judgment).  In any event, the case before us does not raise the difficulty involved in giving effect to an agreement that has not been approved by a judicial court, and I do not intend to set any conclusions in relation to this situation.  On the contrary, the proceeding in question revolves around giving full validity to an agreement that has been approved.

From the general to the individual

44. I will now turn to the case of the parties before us. These are, as mentioned, A common-law couple who has drawn up an agreement to regulate the property relationship between them and brought it to the Family Court for approval, in circumstances in which it explicitly states their joint desire that the agreement will continue to apply to them even if they marry.
45. From a linguistic perspective, The agreement between the parties clearly indicates that there is a possibility that the two will marry in the future, and it is clarified that if this is the case, they want the agreement to continue to apply to them even at the stage of the marriage.  In terms of the purposes of the legislation, it is possible to get the impression, There was also no dispute about this in the previous courts, that these were informed parties who chose the agreement in the format in which it was presented with a clear mind and on the basis of ongoing cooperation between them.  This is also reflected in the transcript of the Family Court hearing in which the parties declared that they "Confirming that they [signed] the agreement of their own free will and with an understanding of the agreement, Its Meaning and Consequences".  Therefore, it seems that this is one of those cases in which giving effect to the will of the parties is even consistent with a desirable legal policy.  Therefore, to the extent that the couple marries in the future, the agreement between them, which has been approved by the Family Court, will remain in force without further proceeding.
46. Indeed, the District Court referred in its judgment to cases in which an agreement entered into by common-law couples as a prenuptial agreement binding during the period of the marriage is not valid.  However, an examination of those cases shows that in none of them did any of the conditions mentioned here be met.  In one case, which was emphasized by the District Court, the agreement was not approved at all by a judicial instance, but only by a notary (Family Appeal 26693-04-13) [Nevo].  In any event, an application for leave to appeal was granted with the agreement that it was determined that "it will replace the previous judgments" (LLC 8453/13) [Nevo].  Another case that was noted also revolved around the approval of the agreement by a notary public (43805-11-17) [Nevo], and an appeal was also made with the consent of the parties (Family Appeal 73509-01-20) [Nevo].  Moreover, in another case referred to by the District Court, the agreement did not include an explicit provision regarding the parties' desire to apply the agreement even during the period of the marriage (Family Appeal 17125-03-19) [Nevo].  At this stage, of course, there is no need to examine all the judgments that have been handed down on this issue in the various courts.  However, it should be noted that in their pleadings, the parties cited a number of examples of how a prenuptial agreement between common-law couples was actually approved by family courts by virtue of the two pieces of legislation.  This is when these agreements required the possibility of marriage only in general (see, for example: Agreement File 28072-11-20; Agreement File 58498-06-21) [Nevo].
47. Towards the end, it is important to go back to the beginning: This decision is directed only to the matter of common-law couples whose agreement relating to the property relationship between them explicitly states that its arrangements will also apply in the case of marriage, and this was approved by the Family Court, after it realized that the agreement was made out of free will and an understanding of the meaning of the agreement and its results.

Clarification for signing

48. At this stage, the opinion of my colleague the judge came to my attention D.  Mintz, whose opinion is different.  I have read my friend's arguments and I do not believe that they detract from the conclusion I have reached.  I will not repeat all the reasons that I have presented above, which, in my opinion, provide a response to the difficulties that my colleague has pointed out.  In fact, I have already referred at length to the legal "furrow" that my colleague detailed, including the judgment given in the District Court (see, for example, paragraph 46 above).  However, and for the avoidance of doubt, I would like to emphasize that in my opinion, there is no basis for the main concern on which my colleague gives his opinion - the blurring of the scope of the application of the Property Relations Law.  Indeed, as I mentioned above, Property Relations Law It applies only to married couples, and my opinion does not change that.  All we are required to decide is whether an agreement for regulating the property relations between unmarried spouses can include two components that do not overlap with each other: the first and the first - a property agreement according to Family Court Law; additional and later - if the conditions specified are met, a prenuptial agreement according to Property Relations Law.  The boundaries are therefore clearly maintained, and the conduct of marriage was, and remains, in my view, the essential point of transition from one to the other.  I will also clarify that the requirement that my colleague insists is that the court approving a prenuptial agreement according to Property Relations Law It is necessary to ensure that there is a "real expectation of actual marriage" (in paragraph 3 of his opinion) that is not included in the conditions listed in this law.
49. I would like to reiterate that the upheavals of life in recent years - in which plans for marriage at certain times have risen and fallen against the background, among other things, of the pandemic (COVID-19) and war - sharpen the fact that it is enough for us that the couple wishes to regulate the property aspect of their relationship as they marry. In these days of the war with Iran, this is being said even more intensely.  In any event, I reiterate the common principle of my approach and that of my colleague Justice Mintz: There is no dispute as to whether an agreement will be considered a prenuptial agreement between spouses according to Property Relations Law Only in the case of the actual realization of the marriage.

Conclusion

50. Therefore, I would suggest that we accept the appeal and determine that the agreement that is the subject of the proceeding before us will continue to apply to the parties even if they marry.
51. In the circumstances of the case, all the parties before us contributed to clarifying the legal situation, and there is no room for awarding costs.