As to the nature of the joint rights according to the presumption of partnership, it was ruled that when the conditions for its application are met, a partnership is created between the spouses Proprietary, equal and immediate, already during the marital life (see, for example: Additional Hearing: High Court of Justice8537/18 Anonymous v. The Great Rabbinical Court of Jerusalem, paragraph 27 of the President's judgment A. Hayut (June 24, 2021) (hereinafter: Additional Hearing: High Court of JusticeAnonymous); Interest Jacobi, paragraphs 1 and 7 of the judge's judgment Z. A. Tal (1995)). In addition, with regard to real estate assets, it was held that taking into account the provisions of the Real Estate Law, the spouse who is not registered as the owner of the property has a "quasi-proprietary" right in the joint property (see: Civil Appeal Authority 8791/00 Shalem v. Twinko Ltd., IsrSC 62(2) 165, para. 20 (2006) (hereinafter: the Pay)).
- Against the background of the aforementioned growth of the presumption of partnership in the 1960s, it was enacted in 1973 The Property Relations Law, as its name implies, is intended to regulate the financial relations between spouses. The law was applied only to those who were married as of January 1, 1974, and its provisions can be stipulated by means of a prenuptial agreement, which meets the conditions specified in sections 1-2 of the law. In contrast to the presumption of partnership, section 4 of the law establishes a rule of property separation between the couple's assets, according to which "the dissolution of the marriage or its existence in and of itself does not harm the couple's property, grant one of them rights to the other's assets, or impose liability on him for the debts of the other." Subsequently, the law established a mechanism for "balancing resources", according to which upon the dissolution or expiration of the marriage, "each of the spouses is entitled toHalf of its value of all the assets of the spouses", with the exception of assets of various types, including "assets that they had on the eve of the marriage or that they received as a gift or inheritance during the period of the marriage" (section 5(a) of the Law; these assets are referred to in case law and literature as "external assets"). The resource balancing mechanism in the law therefore establishes an obligatory obligation, which does not change the property rights in the assets registered in the name of one of the spouses, but rather balances between them the value of all their assets in an equal manner (see, for example: the explanatory notes to the Proposed Property Relations between Spouses Law, 5729-1969, H.H. 849, p. 332; it should be noted that in special circumstances, the court may balance the value of such assets with a division that is not half by half. and see section 8(2) of the Law).
- It should be noted that when the law was enacted, it stipulated that the resource balancing mechanism would be activated only in the event of the "expiration of the marriage", which was defined as divorce or death of one of the spouses. This provision led to cases in which a spouse who wished to refrain from operating this mechanism, did not cooperate with the divorce process, or conditioned his cooperation on the other spouse's waiver of his rights to balance resources, in a manner that raised difficulties and thwarted the balancing mechanism in the law (See: On appeal Taxes 1983/23, verses 48-49; For more information, see: Lifshitz, the marital partnership, p. 149). Against this background, in the case of Jacobi An argument was made that the presumption of partnership continues to apply to couples who are subject to the Property Relations Law, so that even before the "expiration of the marriage", it is possible to recognize the sharing of rights between spouses by virtue of this presumption. In the judgment in the Jacobi The aforementioned argument was rejected; It was ruled that the presumption of partnership does not apply to couples subject to the Property Relations Law, inter alia in view of the provision of section 4 of the Law, mentioned above, which teaches, as stated, a rule of proprietary separation between the couple's assets (it should be noted that in 2009 Amendment No. 4 to the Law came into effect, which was intended to deal with the difficulties that aforesaid in the background of the matter came into effect). Jacobi; See: Section 5A of the Law, and for more details: Lifshitz, pp. 150-162).
- Several years after the judgment on the matter Jacobi, inCivil Appeal Authority 8672/00 Abu Rumi v. Abu Rumi, IsrSC 56(6) 175 (2002) The argument was once again raised, according to which the presumption of partnership may also apply to couples to whom the Property Relations Law applies. In that case, the issue arose against the background of the fact that the couple's residential apartment was registered in the husband's name only, even before the marriage, so that it was not included in the balance of resources under the law, as it was an "external asset".
In the judgment in the Abu Rumi This Court reiterated the precedent established in the matter Jacobi, according to which the presumption of partnership does not apply to couples who are subject to the law. However, it was ruled that the aforesaid does not prevent a spouse from claiming - "by virtue of any general law", such as "Contract law, property law, trust law, mission law, enrichment law, principle of good faith-The Heart" - rights to assets owned by the other spouse, including "external assets" that are excluded from the balancing mechanism in the law. It was held that in this context, the general law should be given "a broad interpretation [...] Referring to the special relationship of the partnership that stems from married life"; and that "In particular, this applies to providing a broad interpretation of the law that will make it easier to view the residential apartment as joint even when it is registered in the name of one of my sons-The couple". However, it was emphasized that taking into account the provision of section 4 of the Law, the very existence of a joint marriage - even if it is prolonged - does not lead to a partnership in the residential apartment, which otherwise "introduces the presumption of partnership through the back door"; Rather, it is necessary to show "factual circumstances, in addition to the very existence of the marriage, from which it can be deduced - by virtue of general law - the granting of rights in the residential apartment" (ibid., paras. 7 and 10 of the judge's judgment Strasberg-Cohen, which has already expressed a similar position on the matter Jacobi).
- These determinations of this Court in the matter of Abu Rumi Later, in case law and literature, they were called the "specific partnership rule" (see, among many: Additional Hearing: High Court of JusticeAnonymous, paragraph 29 of the President's judgment Animals; On appeal Taxes 1983/23, paragraph 51 of my judgment; Hanoch Dagan and Dafna Hecker "The Specific Sharing Rule - Ahead of the Fourth Act In a High Court of Justice case 4602/13" Legal Research Lev, 519 (2019) (hereinafter: Grain and the cold); Lifshitz, the marital partnership, p. 179). As detailed above, the essence of this rule is to determine that although the subordination of a particular couple to the Property Relations Law negates the applicability of the presumption of partnership in relation to him, this does not prevent appeal to the general law in matters relating to the sharing of assets between spouses; and that the general law should be interpreted extensively in this context, in accordance with the characteristics of the "The partnership that stems from marriage".
If so, the judgment in the matter Abu Rumi does not establish a specific legal framework for the recognition of the sharing of rights in a specific property of a spouse subject to the Property Relations Law; Rather, it leaves an opening for raising claims of such sharing, by virtue of various doctrines set forth in the general law.