at pp. 5620/24 at pp. 17735-09-24 Anonymous v. Anonymous - part 7

The Specific Sharing Rule and the Written Requirements Established in the Legislation

27. Admittedly, given that the specific partnership rule arose, as stated, mainly on the basis of a construction of an agreement that is inferred from the couple's conduct, it can be argued that this rule is in tension with various legislative provisions that include a written requirement (or other formal requirements) for the purpose of formulating a binding agreement, and in particular sections 1-2 of the Property Relations Law and section 8 of the Real Estate Law (on this argument, see: sections 86-88 of the judge's opinion A. Stein In the Discussion A High Court of Justice was addedAnonymous).  Although these arguments were not explicitly argued in our case, I thought they should be addressed briefly; As will be clarified below, I am of the opinion that the specific partnership rule is consistent with the general law, even taking into account the aforementioned legislative provisions.
28. As for the Prenuptial Relations Law, section 1 of the law stipulates that a "prenuptial agreement" between spouses will be made in writing; And in section 2 of the law, it was determined that such an agreement even requires approval and verification by a judicial body, or by other parties listed in the section. However, the rule is that not every agreement on financial matters that is entered into between spouses during their joint life is a "prenuptial agreement" as defined in the law; and that the question of the classification of such an agreement will be decided in accordance with its purpose: Only if we are dealing with a forward-looking agreement, the purpose of which is to define the manner in which the balance of resources between the spouses will be carried out in the event of separation or death, is that we are concerned with a "prenuptial agreement" according to the law; This is in contrast to an agreement made in the "normal" framework of marital life, which is not aimed at the question of balancing resources at the time of their termination (see, for example: in the appeal Taxes 8063/14 Palmoni v.  Palmoni, para.  17 (July 13, 2015); On appeal Taxes 5142/10 Anonymous vs.  Anonymous, Verse 5 (July 25, 2010) (hereinafter: On appeal Taxes 5142/10); Civil Appeal 169/83 Shai v.  Shai, para.  4 (28.10.1985)).  Thus, it was held that when the agreement is regarding a specific asset, it is an indication that it is not a "prenuptial agreement" under the law (On appeal Taxes 5142/10, verse 5).

I do not believe that in accordance with the above test, the agreements to which the specific partnership rule deals with should be classified as a "prenuptial agreement".  As detailed above, these agreements are learned, as a rule, from the couple's behavior, which expresses the joint venture of the property Real-time, and does not focus on the question of balancing resources at the end of the relationship (see and compare: Civil Appeal 7388/97 Estate of the late Moshe Shamir v.  Dolev (Shamir), IsrSC 55(1) 596, 608 (1999) (hereinafter: the Dill)).  In any event, even if we assume, for the purpose of the discussion, that these are agreements that amount to a "prenuptial agreement" under the law, we are concerned, by definition, with the agreement in which the couple Drive According to him; In this regard, we ruled that "with regard to a prenuptial agreement that was not lawfully approved but was acted upon by the parties, there is a jurisprudential doctrine that grants it practical validity by virtue of the principle of good faith, estoppel and inhibitions" (2)Tax Appeal 7734/08 Anonymous vs.  Anonymous, verse 17 (April 27, 2010)).

29. As for Section 8 of the Real Estate Law, which states that "an undertaking to make a real estate transaction requires a written document". Admittedly, it has already been ruled that there is no room to establish a rule according to which voluntary engagements between spouses are sweepingly exempt from the application of this section (See: Interest Dill, at p.  608; See also: On appeal Taxes 1270/23, verse 21).  At the same time, the general law recognizes that "in special and exceptional cases" that give rise to a "cry of fairness", the principle of good faith has the power to prevail over the written requirement in question, taking into account considerations relating to reliance on the consent expressed and the lack of good faith of the party seeking to repudiate it (Civil Appeal 986/93 Kalmar v.  Guy, IsrSC 50(1) 185, 196 (1996) (hereinafter: the Pencil case)).

Indeed, the specific sharing rule, as it developed in case law, is consistent with the judgment in the Pencil case.  As explained above, the rule in question recognizes that spouses may formulate by their conduct an agreement regarding partnership in a certain property - in a way that will create significant reliance on the part of the spouse who is not registered as the owner of the property - and due to the nature of spousal relationships, this consent will not be expressed explicitly and authoritatively.  Under the circumstances This, a denial of the same consent on the part of the spouse who is registered as the owner of the property, after the couple acted in accordance with this agreement, is capable of "establishing a financial inequality that the couple did not want in real time" (see above, para.  26), in a manner that amounts to bad faith and gives rise to a "cry of fairness".

30. Finally, it should be noted in this context that section 7 of the Real Estate Law states that "a real estate transaction requires registration"; Naturally, the spouse who claims to share the property is not registered as its owner. In light of the aforesaid, it has already been ruled that a right in a real estate property, which is granted according to the specific partnership rule, is "a quasi-proprietary right, a right of property that is honest" (Interest Ben Giat, paragraph 24 of the judge's judgment Associate; Additional Hearing: High Court of JusticeAnonymous, paragraph 34 of the President's judgment Animals; See and compare: Civil Appeal 189/95 Otzar Hachayal Bank on Appeal Taxes v.  AharonovIsrSC 35(4) 199 (1999); Interest Pay, verse 23).
31. In summary of this part, the specific partnership rule, in which the question of whether the couple's conduct indicates an agreement between them to share rights in a particular property is examined, recognizes the sharing of rights as aforesaid by virtue of the general law, and is in this way consistent with the law relating to the provisions of sections 1-2 of the Property Relations Law and section 8 of the Real Estate Law.

The nature of consent that is validated under the specific sharing rule

32. As detailed above, the specific sharing rule developed mainly on the basis of the construction of an agreement in conduct; And from this also derives an insight relating to the nature of the agreements that are validated in the framework of the rule in question. Naturally, when we are dealing with an agreement for sharing rights in the property, which is concluded From behavior Spouses, as it is expressed during their life together, it is difficult to attribute to them consent to a "sophisticated" division of the property.  Thus, for example, it is difficult to conclude from the behavior of the parties that they agreed to divide the property between them at a rate of 72% to one and 28% to the other (or any other division that is not half by half).  Thus, within the framework of the specific sharing rule, agreements that are inferred from the conduct of spouses to share rights in a particular property are generally concerned with the sharing of Egalitarian, in a manner that is consistent with the characteristics of the "partnership arising from marriage" ( Abu Rumi, verse 7; Interest Jacobi, at p.  621).  It is clear that a couple may reach explicit and documented agreements regarding the sharing of assets in any division they wish, but as explained above, this is not the typical case that the specific sharing rule deals with.

The Main Characteristics of the Specific Sharing Rule - Summary

33. To summarize this part, the specific partnership rule applies to spouses who are subject to the Property Relations Law, and states that it is possible to recognize the sharing of rights between them with respect to a certain asset, by virtue of the general law, which must be interpreted extensively, in view of the characteristics of the "partnership arising from marital life". This rule developed in case law on the basis of a contractual construction, in which the question of whether the couple's conduct during their life together indicates the formation of an agreement according to which the rights in the property are shared by both of them.  The validity of such an agreement is based on the general law, and in this regard is also consistent with the law relating to the provisions of sections 1-2 of the Property Relations Law and section 8 of the Real Estate Law.  Given that this is an agreement for sharing rights in the property, which is deduced from the couple's behavior, it is difficult to attribute to them a "sophisticated" consent, which includes, for example, an unequal division of rights in the property; Rather, we are dealing with, as a rule, In an equal partnership agreement, which is consistent with the characteristics of the "partnership arising from marriage".

The Specific Sharing Rule - Application in Our Matter

34. As detailed above, in the present case, the Family Court held, on the basis of a comprehensive analysis of a range of factual indications, that the behavior of the man and woman during their joint life indicates the formation of an agreement between them to share the rights in the apartments in Nes Ziona; and that therefore, the man is entitled to half of these rights. However, the Family Court further ruled that since "the land itself", on which the apartments were built, was given as a gift to the woman only, it must be determined that the partnership does not apply to the land, in its condition "as it was given as a gift to the woman before the marriage [...] as agricultural land."

Essentially, the majority opinion in the District Court's judgment left these determinations intact.  As stated, in the judgment it was determined that "for reasons of law and even for considerations of justice", the intention of sharing in our case extends to the apartments, but without the land on which they are built, in the state it was in when it was given as a gift to the woman.  This, in essence, is because it is not the couple's residential apartment; and because the parties have additional assets, some of which they do not jointly own.

35. The significance of the determinations in question is that the totality of the couple's behaviors throughout the years of their joint life indicates the formation of an agreement whereby the apartments will be their joint property, while the land on which the apartments are built - in its premarital state, as agricultural land - will be excluded from the common property and will remain owned by the woman only.

I am of the opinion that in view of the nature of the specific partnership rule, as detailed above, these determinations are difficult.

36. First and foremost, even though, as a rule, the partnership within the framework of the halakha in question is derived from the intention of the parties, as this is learned from their conduct; Thus, in fact, the determination in our case, according to which the couple agreed to exclude the land as aforesaid from the category of sharing the apartments, was not backed up by any factual indication.
37. Thus, as detailed above, the Family Court based the aforementioned exception on the very fact that the land was originally given as a gift to the woman only. Moreover, had it not been for the fact that the land was originally given to a woman only, the discussion of the question of the specific partnership would not have arisen at all in our case; This fact does not in itself indicate the intention of the parties to exclude the land as aforesaid.  A person can receive a gift, and decide to share it with another person.  In the same way, a person can receive a gift; to improve it with another person; and to decide that the best product will be shared by both of them.  The fact that the fine product was ordered as a gift does not in itself indicate the absence of an intention to share the component originally given as a gift.

We will present an example to illustrate the above: a person receives a seedling as a gift, and decides to cultivate it together with his partner.  The two cultivate the seedling together, until it turns into a fruit-bearing tree.  Assuming that the couple's conduct indicates an intention to share the tree, the mere fact that the sapling was given as a gift to one of them does not indicate that unlike the tree, the sapling - which is the tree in its past - was excluded from the intention of sharing.

38. Even the reasons presented in this matter in the judgment of the District Court are not based on factual indications that the couple's intention was to exclude from the sharing of the apartments the land on which they are built, in its condition at the time of the marriage, as agricultural land. Thus, the fact that the apartments were not used as the family residence; and the fact that the parties have additional properties, some of which are separately owned, may indeed serve as a negative indication of sharing in the apartments themselves.  However, given that it was determined that the intention of the parties was to share the rights in the apartments, the aforesaid circumstances do not serve as an indication that their intention was to exclude the land as aforesaid.
39. In practice, it follows from the aforementioned reasoning of the District Court that given factual indications that support the existence of an intention to share the property, alongside indications that do not support such an intention, it is possible to determine "partial partnership" in the asset, while dividing it between the parties in unequal parts (as is also explicitly evident from the District Court's judgment, as detailed above).

However, as explained above, when the legal construction on which the partnership is based is an agreement that has been learned from the couple's behavior over the years, there is an inherent difficulty in concluding that an agreement has been formed between them to divide the property in a "sophisticated" manner, in a relationship that is not half-for-half.  As stated, the aforementioned legal structure is based on the couple's intention, which is learned mainly from their behavior, to share the rights in the property in accordance with the characteristics of the "partnership arising from marital life", which is generally an equal partnership.  As explained above, spouses are entitled to formulate explicit agreements regarding the manner in which an asset will be divided, as they wish, but then it is not an agreement that is deduced from their conduct, as in our case, and the legal analysis changes accordingly.  In any event, it should be emphasized that, as a rule, "considerations of justice" do not bring about a retroactive change in the agreements that were formed between the parties and of the rights created by virtue of them (see and compare: Additional Hearing: High Court of JusticeAnonymous, paragraphs 36-37 of the President's judgment Animals; On appeal Taxes 1983/23, verses 27 and 39-45).

40. The aforesaid is even more valid in our case, since it has been determined that the intention to share the apartments has been proven, because the separation of ownership of the apartments from the ownership of the land is inconsistent even with the provisions of the law. Thus, sections 12-13 of the Real Estate Law instruct as follows:

Connected to the ground

12. Ownership of the land also applies to the building and planted on it and to anything else that is permanently connected to it, except for separable connections, and it does not matter whether the connections were built, planted or connected by the landowner or by another person.

Scope of the Real Estate Transaction

13. A transaction in real estate applies to the land together with all of the provisions of sections 11 and 12, and a transaction in a certain part of the land is invalid, all when there is no other provision in the law.

If so, these legislative provisions do not allow for the separation of ownership of the land from the ownership of the building built on it, in a way that sharpens the difficulty of attributing to the couple an agreement on such a separation, in the absence of a factual indication that attests to this.  This difficulty continues to stand out in our case, since it is not at all clear what is the significance of separating the ownership of the apartments from the ownership of the land on which the apartments are built.  As it was before the marriage, as agricultural land; In view of the example presented above, this is like separating ownership of the tree from the ownership of the seedling from which the tree developed.

41. In summary, given the determinations of the previous courts, according to which in view of the totality of the couple's behaviors over the years, a specific intention to share with respect to the apartments in Nes Ziona was clearly proven, there is no basis to exclude from this partnership the land on which the apartments are built (as it was prior to the marriage, as agricultural land). First and foremost, such an exception is not learned from the intention of the parties in question, on which the specific partnership rule is based.  Moreover, this exclusion is inconsistent with the nature of the agreements in which this rule deals in essence - agreements that are deduced from the couple's conduct to share equal rights in a particular asset, in accordance with the characteristics of the "partnership arising from marital life".  In addition, the aforementioned difficulties are sharpened, given that such an exception is inconsistent with the provisions of the Land Law.

The Relationship between the Specific Partnership Rule and the Balance of "Active Praise" in the Framework of the Law

42. According to the woman, given the determination that no intention of sharing was proven in relation to the land on which the apartments are built, there was no reason to establish a proprietary sharing of the apartments. Instead, she argues, only the value of the "active betterment" of the land - which deals with the value of the apartments that was obtained as a result of the couple's effort - should be divided between the parties, as opposed to its "passive betterment", which deals with the value of the apartments attributed to external circumstances.

Admittedly, this argument is superfluous in our case, given my conclusion that there was no reason to determine that no intention of sharing was proven in relation to the land on which the apartments are built.  At the same time, since the argument was argued, and taking into account some of the determinations that are the subject of the appeals before us, I thought it necessary to comment briefly on the relationship between the determination of the betterment of an "external asset" as a balancable asset under the Property Relations Law, and the determination of the property as joint under the specific partnership rule.

43. As detailed above, the Property Relations Law establishes a mechanism of "balancing resources", which applies at the time of the dissolution or expiration of the marriage. As part of this mechanism, each spouse is entitled to half of the value of all their assets, with the exception of "external assets", which the law excludes from the aforementioned balance, including assets that one of the spouses had before the marriage, or received during them as a gift or inheritance.

This separation established by the law between assets actively accumulated by the couple during the marriage and those "external assets" is based on the rationale of "joint effort”)See, e.g., in the appeal Taxes 3462/23 Anonymous vs.  Anonymous, para.  20 and the references there (October 30, 2024) (hereinafter: On appeal Taxes 3462/23); Lifshitz, Afterword, at p.  4).  According to this rationale, assets that were actively acquired by one of the spouses during the marriage are attributed to a joint effort by both of them, in a way that justifies dividing these assets equally between them.  On the other hand, "external assets" are defined as those that are not the result of such a joint effort, and therefore the law excludes them from its balancing mechanism (See, for example: On appeal Taxes 1983/23, verse 21; On appeal Taxes 3462/23, verse 20 and the references therein).