Judge Yechiel Kasher:
I agree.
Yechiel KasherJudge
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Judge David Mintz:
After reviewing the reasoned opinion of my colleague, the judge D. Barak-Erez, I cannot agree with her conclusion. I will explain this briefly.
- We are not dealing with a furrow that has not yet been plowed away. It has been ruled from time immemorial in our case that it is not possible to involve sex in a person other than one. The Prenuptial Relations between Spouses Law, 5733-1973 (hereinafter: the Prenuptial Relations Law or the Law) states that married couples cannot be released from the prenuptial arrangement set forth in the law - i.e., the "balance of resources" arrangement under section 5 of the law - except by a prenuptial agreement in accordance with its provisions. The default set forth in the law is therefore that a couple to whom the law applies will be married (Civil Appeal 640/82 Cohen v. Attorney General, IsrSC 39(1) 673, 678, 683 (1985) (hereinafter: the Cohen case)). The exception is when the couple is about to marry and they are standing "before marriage" (sections 2(c) and 2(c1) of the Law), or in the words of the court, "anticipating marriage" (Civil Appeal Authority 1381/14 Anonymous v. Anonymous, para. 14 [Nevo] (March 16, 2014)). On the other hand, "common-law" spouses do not fall within the scope of the Property Relations Law, which discusses, as aforesaid, only married couples and at most spouses who are "premarital", and not common-law spouses who reflect a factual situation that entails different legal consequences but does not create status (Civil Appeal 2000/97 Lindorn v. Karnit - Road Accident Victims Compensation Fund, IsrSC 55(1) 12, 35 (2001); Civil Appeal Authority 5096/21 Anonymous v. Shlomo Insurance Company Ltd., paragraph 25 (December 15, 2021) (hereinafter: the S. Shlomo)); or, in the words of the court, a couple leading a family life in a joint household (High Court of Justice 4178/04 Anonymous v. The Great Rabbinical Court of Appeals, IsrSC 62(1) 235, 251 (2006-2007); Civil Appeal 5271/10 Ben Haim v. Kibbutz Givat Haim Ihud, para. 33 [Nevo] (October 1, 2013); Civil Appeal Authority 3323/23 Shlomo Insurance Company in Tax Appeal v. Anonymous, paragraphs 8 and 25 [Nevo] (May 6, 2024)); or spouses who cannot or wish to marry within the framework of the religious law that exists in Israel. In any event, if the common-law couple wishes to formalize the financial relationship between them and obtain the approval of the court as agreed between them, the way is open for them to apply to the Family Court under Section 3(c) of the Family Court Law, 5755-1995 (hereinafter: the Family Court Law) (see: Civil Appeal Authority 6854/00 Attorney General v. Zemer, IsrSC 57(5) 491 (2003)). The aforementioned section 3(c) does not define the agreement entered into between unmarried spouses as a prenuptial agreement, but rather as "just" an agreement.
- These words were said by me and by my colleagues Justices Sobel and T. Bezeq-Rappaport in Family Appeal (Jerusalem District) 26693-04-13 Anonymous v. Anonymous [Nevo] (November 14, 2013) (hereinafter: Appeal of a Certain Family), Bahai Lishna:
"The rule is that the Property Relations Law applies only to married couples, and therefore only the prenuptial relations of such spouses can be regulated in a prenuptial agreement (Civil Appeal 640/82 Cohen v. Attorney General, IsrSC 39(1) 673, 678, 683). This does not prevent common-law spouses from regulating their property affairs in the agreement. Moreover, such an agreement between common-law couples can even be approved by the Family Court by virtue of its authority in section 3(c) of the Family Court Law, 5755-1995 (Civil Appeal Authority 6854/00 Attorney General v. Zemer, IsrSC 57(5) 491). However, an agreement regarding the arrangement of the property of common-law couples is entirely within the framework of general contract law and does not constitute a prenuptial agreement under the Prenuptial Relations Law (Cohen case, at p. 682; Zemer case, at p. 505)" (ibid., para. 28).