The applicability of the specific sharing rule to a property other than the family residential apartment
- The woman argues that it is not at all clear that it is possible to recognize a specific intention of sharing in relation to an asset that is not the family residential apartment, because such recognition contradicts the Property Relations Law; And even assuming that this can be done, a very heavy burden of proof must be met for this purpose, in the form of a written undertaking or an explicit promise given to a number of witnesses.
I am unable to accept these arguments.
- First, the determination of a partnership in a particular property by virtue of the general law, including by virtue of the consent of the parties, is not limited to the family residential apartment. Just as a couple is entitled to reach agreements regarding the sharing of rights in the family residential apartment, so they are entitled to reach agreements regarding the sharing of rights in other properties. Indeed, the case law has already recognized the possibility of determining a specific sharing intention in relation to an asset that is not the couple's residence (See, for example, Additional Hearing: High Court of JusticeAnonymous, paragraph 32 of the President's judgment Animals, where it was noted that one of the parameters for examining the intention of sharing is "As far as the couple's residence is concerned - The length of time the couple lived in the property" (emphasis added); See also: Lifshitz, Afterword, at p. 19).
- In addition, contrary to what is claimed, sharing rights in assets other than the family residential apartment does not contradict the provisions of the Property Relations Law. First, it should be clarified that the provisions in the Property Relations Law, which exclude those "external assets" from the balancing mechanism, do not distinguish in this regard between the family residential apartment and other assets. Also, as explained above, in the matter of Abu Rumi It was held that the provisions of the Property Relations Law do not negate the application of the general law to couples subject to the law, with regard to the sharing of rights in assets. As explained, the specific partnership rule and the Prenuptial Relations Law are two separate tracks for regulating the prenuptial relationship between spouses, and they do not contradict each other.
- Further to the aforesaid, I also cannot accept the argument that the determination of the intention to share in a particular property, which is not the family residential apartment, is contingent on the existence of explicit written consent or in the presence of witnesses. As explained above, the specific partnership rule developed, essentially, on the basis of the construction of an agreement that is learned from the couple's behavior throughout their joint life, regarding sharing of a certain asset. In view of the aforesaid, conditioning the determination of an intention to share, in relation to assets other than the family residential apartment, on the existence of explicit written or oral consent, means, in practice, the exclusion of such assets from the specific partnership rule, as it developed in case law. As explained above, there is no room for such an exception; And the president's words are also beautiful in this regard Animals In the matter Anonymous, some of which were mentioned above:
"Requiring explicit and authoritative evidence may [...] making it difficult for the spouse who claims to be sharing to prove the existence of 'something else', even if such a partnership has indeed taken shape, and it is liable to establish a 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 in the Abu Rumi case sought to prevent. Therefore, when the court or tribunal comes to decide whether a particular spouse has crossed the hurdle of 'something extra', it must examine the circumstances of the case with the understanding that 'a dynamic property relationship is created between spouses during the course of the marriage' [...] and that many times the consent to the partnership between spouses is not formulated in an explicit and authoritative manner" (ibid., para. 42 of her judgment).
- Indeed, she walked with us because "There is a point in making it easier for a son-The couple claiming joint ownership of the residential apartment, when it is registered in the name of only one of them", being "A clear family asset, sometimes my son's most significant asset-the couple and sometimes even the individual" (Matter Abu Rumi(v. 10). However, it is clear that this rule does not stem from the fact that when we are dealing with assets other than the family residential apartment, "explicit and authoritative evidence" is necessary in order to determine that an agreement was formed between the couple to share rights in these assets.
- Finally, I will note that the woman further argued against various factual determinations of the Family Court, as well as against the man's procedural conduct. These arguments are not worthy of discussion in a "third incarnation", and I did not see fit to address them in this framework.
Conclusion
53. In view of all of the above, I would suggest to my colleagues that we accept the man's appeal, and reject the woman's appeal.