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Balancing of Resources and Co-ownership Between Spouses
Published online by Cambridge University Press: 12 February 2016
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- Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1980
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1 (27 L.S.I. 313) Hereinafter called “the Law”.
2 “5. (a) Upon termination of the marriage in consequence of divorce or of the death of one spouse (such termination hereinafter referred to as “termination of the marriage”), each of the spouses is entitled to half of the value of the aggregate property of the spouses, except—
(1) property which they had immediately before the marriage or received by way of gift or inheritance during the marriage;
(2) rights which by virtue of law are not transferable;
(3) property in respect of which the spouses have agreed in writing that its value shall not be balanced between them.”
3 “8. Where the civil or religious court secs special circumstances justifying the same, then, unless property relations have been pronounced upon in a judgment for divorce, it may, on the application of one of the spouses filed after termination of the marriage, do one or some of the following:
(1) designate property additional to that specified in section 5 the value of which shall not be balanced between the spouses;
(2) prescribe that the value of the whole or part of the property shall not be balanced half and half but in some other proportion prescribed by it;
(3) prescribe that the value of the whole or part of the property shall not be balanced according to the value thereof at the time of the termination of the marriage but according to the value thereof at some earlier date prescribed by it;
(4) prescribe that the balancing of resources shall not relate to the property which the spouses had at the time of the termination of the marriage but to the property they had at some earlier date prescribed by it.”
4 “6. (a) For the purpose of the balancing of resources under section 5, the property of each of the spouses, except property the value of which is not to be balanced, shall be valued. The amount of the debts due from each of the spouses, except debts in respect of property the value of which is not to be balanced, shall be deducted from the value of his said property.
(b) Where the value of the property of one spouse exceeds the value of the property of the other, the one shall give the other half of the difference, either in kind or in money or money's worth.
(c) In the absence of agreement between the spouses as to what is due from one to the other or how the balancing shall be carried out, the civil or religious court shall decide the matter in accordance with the circumstances and may prescribe times, security and other terms for such carrying out, including the addition of interest in the event of a respite or of payment by instalments.”
5 “11. Where one of the spouses has done or may reasonably be feared to be about to do an act calculated to defeat any right or future right of the other under a property agreement or resources-balancing arrangement, the civil or religious court may, on the application of the other, take measures to protect that right and inter alia do one or some of the following:
(1) order that information be given and security provided;
(2) designate acts which shall require the consent of both spouses;
(3) order the entry of an appropriate note in a register kept under any Law in which property of one of the spouses is registered.”
6 We have also been guilty of such a slip in “Balancing of Resources between Spouses” (1975) 30 HaPraklit 76, 99.
7 We have already dealt with these aspects and the residue of the co-ownership view in the Israeli arrangement, ibid., at 80, 82.
8 See Ministry of Justice, Proposal for a Law of the Individual and the Family, 1955Google Scholar, secs. 65 et seq. and the Explanatory Notes, at p. 102.
9 See Fanono v. Fanono (1975) (II) 29 P.D. 181, 183.
10 See Yadin, , “Partnership between Spouses with Regard to Outsiders” (1970) 26 HaPraklit 474, 477–78Google Scholar, Rosen-Zvi, , “Spouses Property Relations” (1973) 3 Iyune Mishpat 302, 312.Google Scholar Apparently Falk takes a similar view: “Spouses Property Relations in Israel” (1974) 3 Iyune Mishpat 829, 842.
11 “4. The contraction or existence of the marriage shall not by itself affect any ownership rights of the spouses, confer on one of them rights in property of the other or impose on one of them liability for debts of the other.”
12 Shifman, P., “Spouses Property Relations” in Collection of Lectures at the Seminar for Judges, 1975 (Jerusalem, 1976) 126, 127–28Google Scholar; Procaccia, U., “Community Property Law in the Bankruptcy of a Spouse” (1976) 7 Mishpatim 266, 298–301.Google Scholar
13 Which we expressed in the article at supra n. 6, at 100.
14 Op. cit. See also Rosen-Zvi, op. cit., at 313.
15 See per Agranat P. in Bricker v. Bricker (1966) (I) 20 P.D. 589, 597, also cited in Raabi v. Raabi (1979) (III) 33 P.D. 729, 734.
16 “3. (a) Where the spouses have not made a property agreement or, where they have made such an agreement, in so far as it does not otherwise provide, they shall be regarded as having agreed to a resources-balancing arrangement in accordance with this chapter, and this arrangement shall be regarded as having been agreed upon by a valid property agreement conforming to the provisions of section 2.
(b) Where the spouses have not asked for authentication of a property agreement under section 2 (c), the marriage registrar shall before the solemnisation of the marriage explain to them the contents and significance of subsection (a).”
17 Op. cit., at 129–30.
18 Op. cit., at 132.
19 23 L.S.I. 288 and 25 L.S.I. 176.
20 “Sec. 71. (a) Where continuation of the statutory community is impractical or likely to prejudice the family or one of the spouses, the Court may, upon the application of one spouse, dissolve the statutory community.
(b) Where the statutory community has been dissolved, the regime of separation of property shall apply, either pursuant to this Chapter or with such modifications as the Court, in its judgment, may direct.
“Sec. 72. The statutory community shall be terminated:
(1) Upon conclusion of a marriage contract — as of the date fixed in the contract or approved by the Court.
(2) Upon entry of a judgment under sec. 71 — as of the date fixed by the judgment.
(3) Upon dissolution of the marriage by death of a spouse or otherwise — as of the date of the dissolution of the marriage; the court may, however, fix an earlier date for the termination of the community.
In fixing the date for the termination of the statutory community the Court shall take into consideration the date from which the spouses ceased to cohabit.”