See: Family Appeal (M) 55308-09-22 D. 8 v. 1. 8 [Nevo] (July 12, 2023).
- In the Supreme Court's rulings, general criteria were outlined for examining the circumstances for the use of the power set forth in section 8(2) of the Property Relations Law, in connection with the purpose underlying the law.
See the review: Family Appeal (Haifa) 34220-03-22 [Nevo] (August 18, 2023)
Family Appeal (Haifa) 5420-10-21 (18.04.2022) - [Published in the online databases [Nevo]].
- It should be remembered that when we examine whether there are those special circumstances that justify an unusual balance in accordance with section 8(2) of the Law, we must look mainly at a forward-looking view, which examines the exit of the two parties from the joint life, i.e., whether there are circumstances that indicate that injustice will be created for the future, which justifies a balance in a manner that is not half-for-half.
- In our case, there is no dispute between the parties that during the marriage (about 22 years soon) the plaintiff worked on a smaller scale than the defendant, with her current earnings standing at only about 1/3 of the defendant's earnings, while as far as she was concerned, it appears that she has exhausted her earning potential.
- Criminal Appeal: The plaintiff's testimony is that she invested a significant part of her time and lecture in the home and raising the children, and as the defendant himself testified, he worked in the south of the country and would come to stay at home twice a week during the weekdays, and therefore it can be assumed that the full burden of raising the minors would have fallen on the plaintiff's shoulders, which naturally prevented her from continuing to develop professionally, and this must be taken into account.
- More than necessary, I will add that in my opinion this conclusion would have been necessary even if it had been done by an informed choice of both parties (the conduct detailed in section 73 above), or even if it had been obligated due to a "determination of fact" on the part of the defendant who would go out to work in the south and come to stay at his home only twice during the week in the evening, as emerged from his affidavit and testimony.
- In addition, I was impressed by the pleadings, the affidavits that were filed and the testimonies of the parties themselves that they lived in a partnership relationship, and their conduct testifies to the intention to share the assets accumulated during the marriage, (funds and social rights), and to mutual reliance in this matter, when the defendant himself clarified several times and in an unequivocal manner that as far as he was concerned, he saw the plaintiff as a full partner, when he was the one who supported her unreservedly for most of the years of their marriage. and as he detailed and described at length in his affidavit of his main testimony in paragraphs 15 to 32 there.
- The defendant's claim that the plaintiff did not contribute to the household was not proven. The fact that the wife did not earn a living during the years of marriage in the family unit does not necessarily indicate deliberate conduct that avoids the accumulation of rights in a way that affects the rate of distribution, moreover, it can be seen that during part of the marriage she did indeed earn a living, and in any case, the rationale of the sharing or balance regime is that the source of each asset, the rate of participation and the contribution of each spouse in its accumulation were not examined.
- As the actuary's opinion shows, the plaintiff did not accumulate significant rights, while the defendant, on the other hand, works and earns a salary significantly higher than the plaintiff's, and he remarries.
- In the specific circumstances, there are gaps in the (internal) balance of power between the parties, in their economic and personal abilities, even from the psychological/emotional aspect, according to the court's impression, and in the possibility of each of them to maximize his earning potential (which is also fundamentally unequal) and to manage his life, and therefore in the circumstances I found that the plaintiff should be considered the "weak" spouse in the relationship.
- The legal precedent holds that the inclusion of earning capacity in the "marital assets" will be subject to certain conditions, in which three elements can be enumerated from the "bird's flight":
- A "homely" partner on the one hand and a "careerist" spouse on the other.
- There is a "dramatic gap" in the earning capacity of the couple.
- Long-term marriage.
When for the most part, the claim is that the "domestic" partner is the one who allowed the other spouse to develop his career.