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Property Relations Between Spouses

Published online by Cambridge University Press:  12 February 2016

Pinhas Shifman
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Type
Legislation
Information
Israel Law Review , Volume 11 , Issue 1 , January 1976 , pp. 98 - 110
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1976

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References

1 On the co-ownership presumption, see Weisman, J., “Can a Spouse Confer a Better Title than He Possesses?” (1972) 7 Is.L.R. 302CrossRefGoogle Scholar, and the sources cited there in n.1; Doukhan-Landau, L., “Husband and Wife as Co-owners of Immovable Property” (1971) 6 Is.L.R. 487.Google Scholar Generally, see Yadin, U., “The Matrimonial Property Relations Bill, 1969” (1971) 6 Is.L.R. 106Google Scholar; Livneh, A., “Matrimonial Property Relations” (1972) 3 Mishpatim 570Google Scholar; Rozen-Zvi, A., “Spouses Property Relations: Justice between the Parties and the Improvement of Family Life” (1973) 3 Iyunei Mishpat 302Google Scholar; Z. Falk, “Spouses Property Relations In Israel” ibid., at p. 829. For the Moslem law aspect of the question, see A. Miron, “Moslem Spouses Property Relations” ibid., at p. 79. For the Jewish law aspect, see Z. Warhaftig, cited by Weisman, op. cit.; Rakover, N., “Spouses Property Relations” (1970) 12 Torah SheB'al Pe 114.Google Scholar

2 Berger v. Director of Estate Duty (1965) (II) 19 P.D. 240; Bareli v. Director of Estate Duty (1969) (I) 23 P.D. 393.

3 Eftah v. Eftah (1971) (I) 25 P.D. 561.

4 See, for instance, Bricker v. Bricker (1966) (I) 20 P.D. 589.

5 See Berinson J. in Eftah v. Eftah, ubi supra, at p. 566, who suggested it earlier in Bareli v. Director of Estate Duty, ubi supra, at p. 396, and explained it in Levi v. Goldberg (1970) (I) 24 P.D. 813, 819–20. See also Ze'evi v. Ze'evi (1972) (II) 26 P.D. 445.

6 See Kahan J. in Eftah at p. 572; cf., the criticism of this view in Weisman, op. cit.

7 This appears to be the view of Yadin, , “Co-ownership of Spouses vis-à-vis Third Parties” (1970) 26 HaPraklit 474Google Scholar, and Rozen-Zvi, op. cit., at p. 312, as well as apparently Falk, op. cit., at p. 842.

8 “A married woman shall be fully competent to own and deal with property as if she were unmarried; her rights in property acquired before her marriage shall not be affected by her marriage”. See also Gur v. Rabbinical Court (1972) (II) 26 P.D. 765.

9 See in particular per Agranat J. in Bricker, ubi supra, at p. 596 ff.

10 For the rebuttal of the presumption when not consonant with the spouses' pattern of life, see recently Patuno v. Patuno (1975) (II) 29 P.D. 181.

11 Alowitz v. “New Port” Haulage Co-operative (1967) (unpublished) where Kister J. (Landau and Witkon JJ. concurring) said: “The case law relating to spouses when they are married is not to be applied to the relations between the parties…. There is nothing, however, to prevent us applying to the parties' relationship the same principles and the same evaluations which in fact also apply to married couples, except that the basis of these principles will not be statutory law applying to married people as such but experience regarding the manner in which persons, living together as a unit, conduct their affairs in common…. In the case before us, since the parties lived together and conducted their household in common and expended their money in common, it is apparent that it was their wish that certain property should belong to them in common”.

12 Berger v. Director of Estate Duty, ubi supra, at p. 246.

13 Levi v. Goldberg, ubi supra, at p. 818.

14 See sec. 14 of the Law.

15 Sec. 3 of the Law provides that “where spouses have not made a property agreement…they shall be regarded as having agreed to a resources-balancing arangement 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 sec. 2”. This fiction was explained by the Minister of Justice in the Knesset as aimed at mollifying any invasion of religious law by turning the statutory arrangement, as it were, into a matter of contract (68 Divrei Ha-Knesset 4525). It is doubtful whether the fiction has any redeeming feature in this regard, but if it is of any practical consequence, that lies in the fact that resources-balancing rights will not be considered as “a matter of marriage” but as one of contract not falling within the exclusive jurisdiction of the religious courts.

16 See, however, the Bill of the Succession Law of 1952, which proposed to give effect to a testamentary agreement between, inter alta, a man and woman in anticipation of marriage or during the existence of marriage. The relevant provisions were not adopted in the Succession Law, 1965, which lays down expressly that “an agreement regarding the succession of a person and a waiver of succession made during the lifetime of that person is void” (sec. 8(a)). See Sharon v. Libov (1974) (II) 28 P.D. 673, 676.

17 See sec. 27 of the Succession Law, 1965.

18 David v. David (1972) (II) 26 P.D. 457, 464.

19 See the remarks in the Knesset of one member: 56 Divrei HaKnesset 475, and Falk, op. cit., supra n. 1, at p. 848.

20 See e.g., Shragai v. Shragai (1975) (I) 29 P.D. 159.

21 Cf. sec. 11(b) of the Succession Law, 1965, as amended by sec. 16(1) of the Law.

22 On this, see the criticism of Tedeschi, G. in his “Comments on the Succession Law Bill” in Studies in Israel Private Law (Jerusalem, Mifal Hashichpul and Gvilim, 1958) 260–62.Google Scholar

23 See sec. 5(b) of the Law.

24 This is not the occasion to deal with the question of the effect of the Land Law, 1969, on the rights of spouses in land. See, in particular, Weisman, op. cit., supra n. 1.

25 See the sources cited supra nn. 15 and 16.

26 See sec. 16(3) of the Law, amending sec. 104 of the Succession Law, 1965.

27 Levi v. Goldberg, ubi supra, at p. 820; Eftah v. Eftah, ubi supra, at pp. 567–68; David v. David, ubi supra; Mastof v. Mastof (1972) (II) 26 P.D. 569.

28 See sec. 6(a) of the Law.