A notarial prenuptial agreement signed before the parties agreed to marry is terminated upon the marriage

December 15, 2019
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Spouses signed a notarial prenuptial agreement that stipulated complete separation of property and also that property to be purchased will be owned by the party on whose name the property is registered. The agreement stipulated that it would remain in force even if the couple married. After a few years, the couple married and, among other things, bought an apartment that was registered to the woman’s name only.
The Court held that the prenuptial agreement is non-binding and the apartment is jointly owned by the spouses. Under Israeli law upon expiry of the marriage, the couple distributes the property evenly pursuant to the value of all their assets, except for certain assets specified in the law. A prenuptial agreement approved by the Court can change this rule and when the agreement is signed before marriage and in anticipation of the marriage it may also be signed before a notary who verifies the identity of the parties, their intention to enter into the agreement and their understanding of its content and implications. In order for a notarial prenuptial agreement to be binding, it must be signed at the time a decision to marry has already been made. Here, at the time of signing the agreement, marriage was not at issue and therefore it does not apply even if the agreement states that it will be binding even if the parties marry in the future. An unapproved prenuptial agreement may be binding when the parties acted upon it, but only in the most exceptional cases where fairness so requires. Here the couple purchased the apartment together and both are signed on the mortgage and therefore the value of the apartment is to be balanced between them.