Claims After the Settlement of Litigation (Legal Investigation) 22591-08-23 Anonymous v. Anonymous - part 6

The court in that matter gave weight to the fact that the marriage registrar did not clearly and explicitly clarify that

"The parties drafted the agreement with understanding and free will, and that they understood its results and significance."

31. In Civil Case (Haifa) 1799/89 Diab v. Samih [Nevo], the Honorable Judge Bein was asked the question: "What is the meaning of a condition in the marriage agreement in which it is stated that the Prenuptial Relations Law will not apply" and "Should it be regarded as a prenuptial agreement that rejects the resource balancing arrangement in the second chapter of the Law?"
32. In this regard, the court ruled that in order to rely on a condition in the marriage agreement, it must be proven that an explanation was given for the far-reaching consequences of the rejection of the arrangement set out in the law, and that the law "requires that the person concerned, i.e., the spouse, personally receive the explanation from the approving authority, and the approving authority must be convinced of the existence of free consent between the husband and wife themselves and not with others on their behalf, regardless of their familial or other relationship to the spouse. As close as it"
33. Similar matters were also held in Civil Case 751/95 Suleiman Yahya v. Ahmad Daoud Asali [Nevo], where it was held that "the change of the approving authority from a judicial authority to a marriage registrar does not change the requirement, which is of a material nature and not only a formality, that the approving authority be convinced both of the existence of free consent and of the meaning and results of the prenuptial agreement."
34. In this context, see also Claims after the Litigation Arrangement (K) 30030-01-21 Anonymous v. Anonymous [Nevo], where the need for clarification of clear consent and understanding of the provisions of the agreement when approving an agreement before the Marriage Registrar was determined.  In the aforementioned judgment, a series of rulings were mentioned stating that the approval required by the Property Relations Law is intended to ensure the conclusion on the part of both spouses, the meaning and the results of the agreement (sections 67-83).
35. Therefore, in order to determine that the terms of marriage agreement constitutes a prenuptial agreement in the sense of the Prenuptial Relations Law , it is necessary to prove the circumstances of the signature, to relate to the status of the signature, to detail what was explained to the parties and what was understood by them, and to ensure that the parties' consent to the determination of the agreement as a "prenuptial agreement" by virtue of the provisions of the said law was given "firsthand".
36. Since the parties are married, the default is the application of the provisions of the Property Relations Law, and therefore the burden of contradicting this presumption is on the shoulders of the party who claims that the provisions that determine the balance do not apply - and in our case, on the defendant.
37. Before examining and discussing the arguments of the parties that were raised and presented by them in the course of the hearing of the evidence in relation to the ruling, I find it appropriate to quote the words of my colleague, the Honorable Judge M. Shadna, as expressed in Family Case (Nazareth) 11971-10-23, where it is well to describe the essence of the marriage contract, its form and the manner in which it is signed in the presence of the parties, as is customary and generally accepted as follows:

"

31. The Muslim law applied in the Shari'a courts in Israel is included in the Family Rights Law (the Family Rights Law). This is an Ottoman law from 1917 that was adopted in Israel by virtue of the provision of Section 11 of the Order of Government and Law Ordinance, 5708-1948. 
32. The marriage bond in Islam is formed solely through the marriage contract. This is a binding contract for all intents and purposes, in which the obligations, rights and responsibilities of the husband and wife are determined.  According to the law in the State of Israel, it is mandatory to register the marriage contract in the Sharia court, which transfers, after it is approved, to the Ministry of Interior in order to change the status of the parties. 
33. It is customary for the marriage contract to be concluded in the period between the betrothal ceremony (khutba) and the wedding party and the wife's move to the husband's home. There are those who draw up the marriage contract immediately after the engagement, and these are mainly the religious families who do not want the groom to be united with the bride without a marriage contract, since upon signing the marriage contract, the parties become husband and wife for all intents and purposes.  There are those who draw up the marriage contract very close to the wedding event.  Recently, the trend has been that the marriage contract is drawn up and concluded very close to the wedding, for fear that during the engagement period, one of the parties will decide to withdraw from the relationship, in which case the wife or husband will be considered divorced or divorced if the contract is signed. 
34. The marriage contract, called "Aked" in Arabic, is a one-page form from the Ministry of Religious Affairs and contains in the first part personal details of the couple, the number of identity cards, dates of birth, occupation, years of schooling, education, marital status before marriage, date of the contract and the place where it was drafted.
35. The second part of the contract includes additional details regarding the marriage, the two types of dowry, the manner of payment of the dowry, who are the two parties to the contract, the witnesses of the contract, the special terms of one of the parties to the contract, the guarantee on the terms and the form of the contract.
36. The last part of the form shows the signature of the marriage order, the signature of the witnesses, the signature of the husband or his representative, the signature of the wife or her representative.
37. I will note that most of the clauses of the contract are recorded in the contract by the marriage arrangement, before the parties and witnesses sign it. The marriage order arrives at the contract ceremony with a mostly ready-made form, as he receives the details, usually from the husband, in advance and fills out the form, with the exception of the names of the witnesses whose identity is determined at the time of signing the marriage contract.  It is customary for each party, the husband and wife, to choose a witness on its behalf to sign the contract.
38. Before signing the marriage contract, the marriage order approaches the bride, together with the two witnesses, and receives her consent to appoint a power of attorney who will be a party to the marriage contract. It should be noted that according to the rules of Sharia, a woman is entitled to be a party to the contract as an independent legal person, but it is customary that in drafting the marriage contract she is required to appoint a power of attorney (and a lawyer), usually her father, and if he is not alive, her brother, and if she does not have a power of attorney, the Sharia court can be her proxy. 
39. The power of attorney is the one who appears before the groom and the contract is drawn up and concluded between him and the husband, in the presence of the marriage order and the two witnesses and the other people present at the marriage contract drawing ceremony. It should be noted that the bride is not present at the ceremony, and in the past she would stay in a separate room, but today the trend has changed and she is present at the time of drafting the marriage contract, but she does not take an active part in making the contract and there is usually a separation between the men and the women who participate in the ceremony. 
40. At the time of signing the contract, there is an offer and acceptance, in the presence of the marriage order and witnesses, between the wife's representative and the husband. At the same time, the wife's attorney holds the husband's hand and says to him in these words, "I have given you the beautification of my power (the name of the bride) in the sum (the amount determined), as well as with a deferred dowry in the sum of (the amount determined)." The husband replies that he agrees and accepts the proposal in the same version as the proposal, and thus the marriage contract is concluded, after the parties, the marriage order and the witnesses sign the contract. 
41. Today, it is customary to write in the marriage contract an immediate dowry in the sum of ILS 50 and a deferred amount of ILS 50,000. The immediate payment of the dowry, which is usually a symbolic amount, is paid by the groom immediately after signing the marriage contract and handed over to the bride.  From the wedding ceremony, the husband, the two witnesses and the bride sign the contract, and the husband hands the bride the immediate dowry.  Thus the ceremony of the marriage contract ends and the contract becomes legal and binding.  "
42. After describing the manner in which the marriage contract was drafted as aforesaid, which reflects the accepted practice, I will proceed to examine the matters in our case.
43. According to the marriage contract attached by the defendant, it appears that the marriage contract is a one-page form that contains in the first part personal details of the couple, ID card tax, dates of birth, profession, years of study of each of the parties, education, marital status before the marriage, place of residence before and after the marriage, place of contract, documents and the date the contract was drafted.

In the second part, additional details appear regarding the marriage, the dowry of both types and its amount, the parties to the marriage, the witnesses to the contract, the special terms of one of the parties to the contract, the guarantee on the terms and the form of the contract.