In view of the aforesaid, in the judgment of this Court inOn appeal Taxes 3462/23 It was held that When an "external property" is actively improved by one of the spouses during the marriage, that betterment should be seen as deriving from a joint effort by the spouses, and therefore as an asset (the betterment) included in the balancing mechanism in the law. This is while a "passive improvement" of an external asset, which does not result from the effort of either of the spouses (for example, a general increase in prices in a particular market), is not considered a balanced asset within the framework of the law.
All of this is related to the mechanism of balancing resources set forth in the Property Relations Law.
- On the other hand, the specific partnership rule establishes an alternative course to that in the law, and has developed, as stated, based on the contractual rationale, as opposed to the joint effort rationale. As detailed above, the rule in question recognizes the validity of agreements formed in the conduct of spouses to share property rights in a particular property, even if it was not achieved through a joint effort on their part. Given such valid consent, the property rights in the property are shared by the couple, without distinguishing between the value of the property that was actively achieved, through a joint effort of the couple, and a "passive" increase in its value.
It should be emphasized that indeed, in the framework of examining the entirety of the couple's conduct, in order to decide the question of the existence of such a sharing intention, parameters relating to the efforts taken by the claimant to the partnership for the purpose of improving the property in question must also be taken into account (see above, para. 25). However, these are only indications of the existence of an intention to share in the asset itself, and this does not imply that the sharing of the asset relates only to the better component of the property (see also: Lifshitz, Afterword, at pp. 18-19).
- Thus, the determination of the appreciation of an "external asset" as a balanceable asset according to the law, and the determination of the property as a joint venture according to the specific partnership rule, are two separate tracks, each of which has a different rationale, a different application, and different implications; Therefore, we must distinguish between these paths and guard against mixing of sex that is not of its kind.
- I will add that there are those who claim that when we are dealing with the active betterment of an "external asset" of a business nature, there is no need for the specific partnership rule, since the betterment is a balanced asset according to the law (see: Lifshitz, Afterword, p. 19).
Although, in general, a spouse may suffice with proof of active betterment of such an external asset; to choose the track of balancing the betterment value within the framework of the law; and to forgo the attempt to prove an intention to share the property, taking into account, among other things, the difficulties of proof that may be involved. However, it should be remembered that there is no identical relationship between the implications of each of the two tracks discussed. Thus, Balancing the betterment value of an "external property" within the framework of the law entitles the spouse who is not registered as the owner of the property to only half of the value of the active betterment, while he is not entitled to half of the value of the passive betterment, or half of the value of the asset that is detached from the betterment. On the other hand, when the intention of sharing is proven in relation to the property itself, the spouse is entitled to half of the property rights in the entire property. Taking into account these differences, even when it comes to a business asset, I do not believe that it is justified to categorically block the track relating to proving the intention to share the asset.