Therefore, the leg of common-law spouses does not generally step into Property Relations Law And any property agreement between them does not fall within the scope of a "prenuptial agreement" under the law on an individual basis. No one kingdom touches the other. As the District Court said in its judgment that is the subject of this proceeding, that an agreement between common-law spouses "does not have the power to override the provisions of the Property Relations Law Unless the Property Relations Law is approved by virtue of the Property Relations Law after the marriage of the parties or shortly after their marriage" (paragraph 8). As a result, whenever the couple is a common-law couple and has not entered into the marriage covenant, or at least has not yet entered into the category of those who stand "before marriage", the door of the court is open to them only in the outlined manner In the section 3(III) 30The Courts Law For the family and not according to Property Relations Law. This door according to Property Relations Law Locked in front of them. Neither near nor far.
- However, as my colleague points out, sections 2(c)-(c1) of the law do not define the period of time before marriage that the couple can apply to the marriage registrar who can approve the prenuptial agreement or before a notary who can authenticate the agreement. However, it is clear that the court cannot approve a prenuptial agreement without any restriction that stems from the requirement of a real expectation of actual marriage. This is when the agreement is approved, he must make sure that the couple is about to get married and that they are interested in leaving the status of common-law couples and entering the territory of a married couple.
- The same court does indeed have the authority to approve the agreement that was entered into between the spouses, whether they are married or common-law partners. However, I do not share my colleague's position that the court can exercise its authority at the same time and act "in two hats". Although the same court is authorized to hear the two agreements as aforesaid, and it is even possible that the same judge will hear the same matter, the "change of hats" and the use of the different authority (hat) are not simple and the court must exclude itself from doing so (and see and compare in various matters: Civil Appeal 3069/17 Ministry of Education v. Ganei Chabad Safed Association (in liquidation), 34 [Nevo] (October 29, 2017); Appeal Petition/Administrative Claim 7151/04 The Technion - Israel Institute of Technology v. Datz, IsrSC 59(6) 433, 444 (2005)). This is all the more valid in the present case, because the court, in its "hat" as approving a property agreement between common-law spouses by virtue of the Family Court Law, cannot approve a "prenuptial agreement" that has not yet been born according to the Prenuptial Relations Law when the couple has not yet decided to marry and has not even entered the realm of those who stand "before marriage".
- But beyond all of the above. The prenuptial relationship regime that applies to married couples is completely different from the prenuptial relationship regime that applies to common-law spouses. Whereas, as stated, the prenuptial relationship regime that applies to married couples is the "balance of resources" according to section 5 of the law - that is, upon the expiration of the marriage, each spouse has the right to balance resources, which means that each of them is entitled to half of the value of all their assets, while deducting the debts and rights of both spouses (this is the exception of those assets that were excluded from the division by virtue of the consent of the parties or by virtue of the law) (see, for example: Civil Appeal 6839/19 Haddad v. Pickholtz, para. 15 [Nevo] (January 20, 2021)); The regime that applies to common-law spouses is the "presumption of partnership" - that is, full sharing of the couple's assets according to an implied agreement between them in both rights and obligations (see: the case of S. Shlomo, paragraph 26; In Tax Appeal 2478/14 Anonymous v. Anonymous [Nevo] (August 20, 2015); Civil Appeal 3352/07 Bank Hapoalim in Tax Appeal v. Horesh, paragraph 28 of the opinion of Justice Jubran [Nevo] (December 7, 2009); Civil Appeal 4385/91 Salem v. Carmi, IsrSC 51(1) 337, 346 (1997); Civil Appeal 52/80 Shachar v. Friedman, IsrSC 38(1) 443 (1984)). In other words, where the court approves a property agreement that excludes the "presumption of partnership" that applies to a couple while they are common-law spouses, the position that it can at the same time "unequivocally" approve that agreement that comes to exclude from the future "balance of resources" regime that has not yet applied to the couple. Literally. The substantial difference between the regimes justifies a distinction in their approval, both in view of the "hat" worn by the court as stated above, and in view of the importance of the distinction in view of the purposes behind the arrangement set forth in the law.
- and as to the purposes behind the arrangement set forth in the Prenuptial Relations Law with regard to the approval of prenuptial agreements between spouses. These purposes, as indicated by my friend (free consent and prevention of discrimination; stability and legal certainty; removal of tensions and reduction of disputes) are also fulfilled when the couple is required to approve the agreement that was formed between them once again as a married couple and at least a couple looking forward to marriage. On the contrary, while the prenuptial arrangement that exists in the two situations is completely different, all the purposes will be realized even more strongly when the spouses who entered into an agreement between them while they were common-law couples when the presumption of partnership presumption defaulted to them, would reconsider the existing prenuptial agreement between them, which would exclude them from the default prenuptial arrangement in the balance of resources. Heaven and Earth between the Two Prenuptial Arrangements (and see a broad overview of the differences in the regimes of prenuptial relations: David Mintz, The Marital Partnership and the Mutual Guarantee between Spouses in Bankruptcy - Meshod Din Ve-Devarim 9 105 (2015)). In this and precisely for this reason, the free consent of the spouses will be given and discrimination will be avoided and the tensions between them will be removed.
- And more about the purpose of "legal stability and certainty." My colleague is of the opinion that in view of the existence of "an inherent difficulty in defining the exact period of time within which a prenuptial agreement can be approved in order for it to be given effect by virtue of the Prenuptial Relations Law" (paragraph 40 of her opinion), it is sufficient to obtain a declaration of the possibility that the couple will marry in the future in order for the agreement to be approved. I have a different opinion on this matter as well. In my view, such a solution, which depends on the circumstances and is undefined, is what will lead to legal uncertainty in the absence of clear and sharp rules that can be followed by clear and sharp rules that can be followed, and this will allow the matter to depend on each case differently and will constitute a wide field for future disputes that may arise between the spouses. On the other hand, there is a great advantage in establishing clear and non-amorphous legal rules (and see recently for clear legal rules in various contexts: Civil Appeal Authority 24895-06-25 Clal Insurance Company in Tax Appeal v. Anonymous, paragraph 49 [Nevo] (March 5, 2026); Civil Appeal 7672/22 Kashtan v. Israel Credit Cards Ltd., para. 94 [Nevo] (February 15, 2026); Civil Appeal 35752-03-25 Bar Dea v. Competition Commissioner, para. 22 [Nevo] (September 21, 2025); Civil Appeal 3290/23 Estate of the late Amin Mansour v. State of Israel - Ministry of Defense, para. 30 [Nevo] (July 30, 2025)).
- In my opinion, therefore, agreements that regulate the rights and obligations of those parties should be avoided without a clear separation, since this separation is of material importance. In this regard, I will conclude with what was said in the matter of a particular family appeal as follows:
"Alongside the similarities between the life of a common-law couple and the life of a married couple, there are fundamental differences between the two forms of communication. These differences are expressed, inter alia, in the financial and property spheres (S. Lifshitz, Common-Law Partners in the Perspective of the Civil Theory of Family Law (2005), pp. 71-87, 153-193, 199-225; A. Rosen Zvi, Family Law in Israel Between the Sacred and the Secular (1990), pp. 303-304; In Tax Appeal 4751/12 Anonymous v. Anonymous [Nevo] of August 29, 2013, paragraph 24 of the judgment of Judge Danziger). These justify a distinction between common-law couples and married couples also with regard to the contracts they enter. As a matter of judicial policy, it is appropriate to refrain from contracts that regulate the rights and obligations of those parties both as common-law couples and as married couples in one fell swoop and without a clear separation. Such a mixing is undesirable, and it can disrupt the fields, increase disputes, and create an opening for unnecessary problems (Cohen, at p. 686). This is especially the case when at the time of the conclusion of the contract the status of the relationship between the parties is that of common-law couples, without having at that stage sufficient data as to the chances, timing and conditions of the marriage scenario" (Appeal of a Certain Family, para. 33; and see also: Cohen Case, at p. 686).
- In this case, all of the above is reinforced in light of the fact that in the agreement entered into between the parties, it is explicitly stated that the parties want the agreement to be approved according to the Family Court Law - and not according to Property Relations Law (This is the case in the last "because" and so in clause 48 of the agreement) and in the third "because" all that is stated in it is that "the couple is interested in regulating the financial relations between them within the framework of this agreement, which will remain in effect if they move in together and/or marry each other". In other words, they did not disclose at the time of the approval of the agreement any immediate or future intention to marry, but left the matter before them only as an option - in their words, "if...". Such a situation was not intended by the legislature, and thus there is no even proximity to the "pre-marriage" date prescribed by law.
Therefore, If my opinion had been heard, the appeal would have been rejected.