Prenuptial Agreement and Property Separation

According to the Spousal Property Relations Law, 1973 [hereinafter: “the Property Relations Law”], Section 4 provides that, as a rule, no sharing is applied to assets: “The marriage contract or its existence, in and of itself, shall not impair the property of either spouse, confer upon one of them rights in the assets of the other, or impose upon one of them liability for the debts of the other.”

In Civil Appeal 1915/91 Esther Yakobi v. Ezra Yakobi, the Court explained Section 4 of the Property Relations Law, clarifying that the purpose of the law is to regard spouses as independent individuals, whose property is not affected by their partner.

In Tel Aviv District Court Case 2584-07 Bank Hapoalim Ltd. v. Ze’ev Afroni, the Court stated: “Despite the presumption of sharing, there are many married couples for whom the presumption of sharing does not apply, and instead full effect is given to each spouse’s separate ownership of their assets… Spouses may agree that one of them will acquire property or operate a business in such a way that it will be their exclusive property and at their sole risk. A decision by spouses to maintain property separation is therefore a legitimate decision.”

In Family Court Case (Eilat) 2555/06 Z.P. v. R., the husband’s claim against his wife (both in second marriages after divorce) to apply the presumption of sharing to her property, home, and car was rejected. The Court found that the wife maintained a regime of property separation and bore the entire burden of household expenses and maintenance: “The parties did not hold joint bank accounts, no significant financial contribution by the plaintiff to the household was proven, the apartments and all assets were registered solely in the defendant’s name, and the funds for their purchase came exclusively from the defendant. It should be emphasized that even among married couples, the intention to share in relation to a specific asset or type of assets may be rebutted, depending on the evidence presented.”

The purpose of a prenuptial agreement (financial agreement) is to freely and mutually enshrine the parties’ will regarding their proprietary rights in their assets. Any infringement upon the parties’ property rights and their freedom and will to enshrine those rights, insofar as supported by evidence, constitutes a fundamental violation of the Basic Law: Human Dignity and Liberty.

The new Civil Procedure Regulations abolish the procedure of summary petitions intended for declaratory relief. This change is logical, since in a short and non-exhaustive proceeding, irreversible harm may be caused to one party who did not properly consider how to present the facts. In other words, even a proceeding that appears simple is not simple, and requires careful, balanced, and measured examination of the facts in depth.