About Property - עמיהוד בורוכוב, משרד עורכי דין

My husband and I signed a comprehensive divorce agreement which covered our property matters amongst other things. The family court authorised it. Under the agreement my husband undertook to transfer rights to a certain property to me … I have since discovered that he had already sold it. What legal action can I take ?

Agreements •About Property

If one spouse discovers that the other entered into a divorce agreement and knowingly undertook to transfer certain real estate rights after he had already disposed of them, then grounds exist for partial cancellation of the agreement based on fraud. As well as filing for partial cancellation of the agreement relating to property, the injured party can also sue for compensation.

My husband and I have been separated for over a year. I am afraid that because money tends to slip through his fingers and he tends to run into debt that I might be forced to cover half of his debts. Is there anything that I can do to prevent this from happening?

Agreements •About Property

Yes, you are advised to have a divorce/property relations agreement drafted, signed and authorized in court. This would bring the marital partnership in property to an end. It should include a joint declaration re the ending of this financial partnership and the agreed date for this. Unless such an agreement is drawn up and signed by your husband, and authorized in court to gain maximum legal validity, then you are at risk from claims from debtors. To minimize this risk , if your husband refuses to co-operate and draft such an agreement, you would be advised to file for divorce and in doing so define the point at which your financial partnership ends – when you separated , at the earliest, or when you filed for divorce, at the latest.

s it possible to realize a property relations agreement in part only, so that all the mutual property about which the parties agree on how to divide, can be divided, leaving out the family home, over which a warning note is registered at the Lands Registry ?

Agreements •About Property

Yes ! It is possible to do so , providing that the property relations agreement expresses the mutual consent of the parties to a partial division of their partnership in the property, and the division of a certain asset at a future time. If the agreement relates to a complete division of all the couples’ mutual property, then it is possible for them to change this to a partial settlement, subject to court permission.

My husband and I are separated and have a separation/divorce agreement authorized in court, although we have yet to officially divorce . I have stayed in the marital home but he has moved into other property we bought during our marriage and own – with his girlfriend. I am worried that my rights in this property might be at risk, although he assures me that they are protected, and says he has made a property relations agreement with his live-in girlfriend . Are my rights in this property protected ?

Agreements •About Property

Yes ! A married woman’s property rights in marital property – even if she is separated – are protected by law , and even if they are partly registered in her name, or not at all. They can be reinforced by an authorized separation agreement between her and her husband.

Accordingly, your rights in the property that your estranged husband is living in with his girlfriend are protected irrespective of any agreement your husband has made with her. In this, he is only free to make agreement regarding his part of the marital property, and cannot make any agreement regarding his wife’s rights in marital property.

My divorce agreement, which included a settlement over marital property, was authorised at the family court and stated in general that any debts were joint. After we divorced I was sued by my ‘ ex’s’ bank – I had signed as a guarantor on one of his accounts during our marriage. Before I paid the money we made an agreement in which he undertook to reimburse me for all the debt if I paid it. I paid off the debt but he never repaid me. This second agreement was not authorised in court. Can I sue him to get the money back ?

Agreements •About Property

The family court has jurisdiction to rule on a dispute between ex-spouses, and the ex-wife can certainly bring an action for breach of the second contract. However, the situation is not clear-cut.

On one hand the potential source of the debt – the act of becoming a guarantor – was made during the marriage and the property relations’ agreement stated that debts incurred by either party during this period were joint. This agreement was authorised , has full legal value and is enforceable. According to it, the debt to the bank should be shared equally between the parties.

On the other hand, the ex-husband supposedly intended to take full responsibility for the debt by entering into the second agreement aimed at dealing with the issue of the guarantorship which the original agreement had not covered specifically. By not fulfilling his obligation to reimburse her he is not acting in good faith. However, to have full force any change to a property relations agreement must receive court authorisation and the binding value of a judgment according to the 1973 Spouses’ Property Relations Act. This second agreement was not authorised. Its legal value derives from general rules relating to the validity and enforceability of contracts under the general laws of contract, which include ‘good faith’.

The first agreement is a specific type of contract, subject to the principles of family law, which override the general principles of contract law . Under it the debt paid by the wife should be borne by both parties 50:50. According to the second agreement , the ex-husband undertook to reimburse his ex-wife for the whole debt – but this contract does not have the binding force of a judgment , as the first. The ex-wife would probably increase her chances of succeeding if she sued her ex-husband for only half of the debt she paid out.

I divorced a few years ago following a marital rift connected with the failure of my business. In my divorce agreement I agreed to transfer my rights in the family apartment to my wife – to protect the home from creditors. The agreement was authorized and incorporated into a judgment. My wife has still not transferred my share of the apartment into her name. I want to get my share back . What action can I take to do so ?

Agreements •About Property

The first option is filing for a division of property as the apartment is registered in two names. However, this is doomed to failure because although the transfer of rights has not been effected Israeli law recognizes Israeli equitable property rights since the Ahranov case. This leaves two possible alternatives – the first is filing for a cancellation of the property part of the divorce agreement relating to the transfer of rights. The second is a plea for a declaratory judgment to state that the ex-husband is entitled to half of the rights in the property even though he is actually registered as owning them at the moment.

I divorced my husband a few years ago. We made a divorce agreement in which it was stated that his rights in our flat would be transferred to me. The reason for this was that he wanted to protect the family home from creditors whom he owed large sums of money. The agreement was authorised in court and incorporated into a judgment. Recently my ex-husband filed a plea at the family court for a declaratory injunction declaring that half the rights in the flat belonged to him . He claimed that the agreement was only a cover – and should be cancelled. What are his chances of success ?

Agreements •About Property

Courts have ruled that an agreement to transfer property to avoid creditors is not an empty contract even though it may be made in bad faith regarding the creditors – as long as it reflects the parties’ wishes. This is so even if it is proved that the person transferring the property feared creditors. Furthermore, if the party who transferred the property was actually present in court when the agreement was authorised and declared that he had signed it of his own free will, after understanding its contents and implications, his later claims that he did not declare the truth cannot be accepted. His original declaration is favoured. The fact that the side transferring the property only filed the plea several years later supports the thesis that there was a genuine intention on his behalf to transfer his rights in the property.

My husband and I signed a comprehensive divorce agreement which covered our property matters amongst other things. The family court authorised it. Under the agreement my husband undertook to transfer rights to a certain property to me … I have since discovered that he had already sold it. What legal action can I take ?

Agreements •About Property

If one spouse discovers that the other entered into a divorce agreement and knowingly undertook to transfer certain real estate rights after he had already disposed of them, then grounds exist for partial cancellation of the agreement based on fraud. As well as filing for partial cancellation of the agreement relating to property, the injured party can also sue for compensation.

My wife and I have been married for nearly 40 years. I want to make an agreement regarding our property as I have suspicions about her having an affair and want to protect myself. Is this still possible if we have been married so long, and do we have to get court approval ?

Property Rights •Coupled Married Before 1974

Yes, a married couple can make a property relations agreement regardless of when they got married. It must, however, receive court authorisation to be valid. Although the Spouses’ Property Relations’ Act of 1973 only came into force on 1.1.74, the requirement of court authorisation also applies to couples marrying before that time who made a property relations agreement after the act was effective.

These points were stressed by the Supreme Court in 1977 which held that a husband who had married before 1974 could not enforce parts of a divorce agreement relating to property which had been drawn up after 1974 because they had not received court authorsiation. This was vital; a court had to identify the parties and be satisfied that they had signed the agreement relating to property of their own free will, after understanding its contents and implications, it held.

What is a property relations agreement ?

Agreements •About Property

It is a written contract between a couple which defines and controls their property relations. It must be in writing and should undergo the appropriate authorization according to the status of the couple to be fully effective. The Spouses’ Property Relations Act of 1973 states that a property relations agreement between married couples must receive authorization at the family court or a religious court in order for it to be binding. In contrast, a property relations agreement between a cohabiting couple does not have to be authorized court, although this is preferable and recommended. If it does not receive court authorization, it will have the same legal status as any written agreement, according to contract law.

A premarital agreement between couples intending to marry that covers property can be authorized by a notary or marriage registrar instead of by court, but court authorization is recommended.

Once duly authorized the agreement will apply instead of the law governing property relations between couples of that status . It is often advantageous to have such an agreement to avoid certain situations that could arise if the couple split up or one of them dies .

A property relations agreement is particularly useful for :

young couples marrying for the first time before marriage
widows/widowers/divorcees wanting to co-habit with someone or get married again and they are concerned about protecting their property interests or those of their children or grandchildren.