The Development of the Specific Partnership Rule in a Contractual Route
- An examination of the case law that cast content into the specific partnership rule reveals that it developed mainly in the construction track Contingent, in which the question of whether an agreement has been formed between the spouses to share proprietary rights in the property in question is examined. First and foremost, this is expressed in the requirement set by the case law, in the framework of the specific partnership rule, to prove Consent or intent to share Regarding the property, which are learned, in essence, from the couple's behaviors and representations (see, among many: Civil Appeal 7687/04 Sasson v. Sasson, para. 15 (February 16, 2005); On appeal Taxes 1398/11 Anonymous v. Anonymous, paras. 15-23 (December 26, 2012) (hereinafter: On appeal Taxes 1398/11); Additional Hearing: High Court of JusticeAnonymous, paragraphs 32 and 37 of the President's judgment Animals; See also Name, paragraphs 8 and 18 of the judge's opinion A. Stein; Compare to the Judge's Approach Associate In the matter Ben Giat, according to which the specific partnership rule is based on a "normative presumption" (paragraph 27 of his judgment); Compare with the judge's approach Stein, which he suggested in his opinion at the hearing A High Court of Justice was addedAnonymous to replace the contractual path of the specific partnership rule with a track based on the laws of enrichment and not on law (ibid., paras. 95-98); See also: Grain and the cold, at pp. 532-533; Shahar Lifshitz: "Afterword - What We Learned from the Discussion A High Court of Justice was addedThe Betrayal" Legal Research 33 (2024) (hereinafter: Lifshitz, Afterword)).
- In the meantime, the case law emphasized that For the purpose of proving a specific partnership, it is not sufficient to suffice with the existence of a joint marriage, even if it is prolonged; Rather, it must be shown that there is "something else" that indicates the intention to share the property (See, for example: On appeal Taxes 1398/11, verse 17; Additional Hearing: High Court of JusticeAnonymous, paragraph 31 of the President's judgment Animals). As to the nature of that "something additional", it was held that the parameters in this matter relate both to expressions of partnership in relation to the property in question, and to the cooperative conduct of the couple in general; And this is how the President summed it up Animals:
"Among the considerations related to the asset are the source of the asset (whether it was bought or received as a gift or inheritance, and if it was bought, who financed the purchase); the question of whether the property came into the hands of its owners before or during the marriage; the question of whether the spouse claiming to share collateral such as a warning note was given; the financial conduct of the couple with respect to the property, for example, if they took out a mortgage jointly to finance the purchase or construction; the question of the existence of financial investments in the property on behalf of the spouse claiming to be sharing; the participation of both spouses (whether in money or labor) in a significant renovation carried out in the property, in its planning or construction; Promises or active representations by the registered spouse towards another; And as far as the couple's residence is concerned, the length of time the couple lived in the property. In the second category, which deals with considerations related to the couple, case law took into account the duration of the couple's marriage; in the nature of their relationship and in the question of whether there was even a partial degree of harmony, "even if life was not a 'garden of roses'" [...]; the couple's financial conduct and the question of the existence of an "atmosphere of sharing" between them; On the question of whether the spouse claiming the partnership has another external asset that remains registered in his name; and on the question of the existence of joint children" (Additional Hearing of the High Court of Justiceof a Certain Person, para. 32 of her judgment, emphases in the original; see also Tax Appeal 1398/11, the opinion of Justice Amit and paragraphs 21 and 27 of the judgment of Justice Y. Danziger).
- We see that within the framework of the specific sharing rule, the findings of the fact that they may amount to "something additional", which have the power to testify to the intention of sharing the property, are mainly expressions of partnership that are studied in various ways From behavior The couple. Thus, it can be said that the specific partnership rule developed, essentially, on the basis of the doctrine of an implied contract, which is an agreement that is deduced from the behavior of the parties (see, for example: Gabriela Shalev and Effi Zemach Contract Law 571 (4th ed., 2019) (hereinafter: Peaceful and Plant); Additional Civil Hearing 1558/94 Nafisi v. Nafisi, paragraph 18 of the judge's opinion M. Cheshin (25.8.1996); Civil Appeal Authority 5394/09 Mediterranean Car Agency on Appeal Taxes N. KIA, para. 12 (June 27, 2012); For the differences between an "implied contract" and an "implied clause", see: Peaceful and Plant, at pp. 270-272).
The case law in question therefore recognizes that due to the nature of a marital relationship, an agreement formulated between spouses and a partnership in a particular property may not be expressed in "explicit and authoritative evidence"; and that retrospective denial of that consent "may establish financial inequality that the couple did not want in real time. Such a scenario, which does not reflect the 'real' ownership of the property, is the scenario that the court requested in the matter Abu-Roman to prevent" (Additional Hearing: High Court of JusticeAnonymous, paragraph 42 of the President's judgment Animals; See also: On appeal Taxes 1398/11, verse 23; Lifshitz, the marital partnership, at p. 187).