Procedure / Validity - עמיהוד בורוכוב, משרד עורכי דין

Can a couple living abroad with real estate and savings in Israel authorize a property relations agreement via an Israeli Consulate abroad without having to appear in court in Israel ?

Agreements •Procedure / Validity

As a rule the answer is no as courts authorizing such agreements have always demanded the presence of both parties , based on the requirement in the 1973 Spouses’ Property Relations Act for the court to be convinced that the parties signed the agreement of their own free will, with an understanding of its contents and implications. However, in March 2004 Kfar Saba Family Court gave a flexible interpretation to this requirement and said that the telephone could be used to verify that the conditions had been met. It said that the trend was for the family court to encourage couples to end disputes by agreement.

It passed judgment authorizing an agreement dealing with property, as well as child custody, visitation and maintenance , while both the husband and wife were overseas. It did so after the judge verified over the phone with an official at an Israeli Consulate in Boston, U. S. , with whom they sat, that they understood its terms and implications, and had signed it of their own free will. This ‘breakthrough’ step is not binding as a precedent but does act as a guide to other family courts and may help to pave the way for a more flexible approach towards authorizing agreements where one or both parties are abroad.

I entered into an agreement with a close relative whereby I paid off debts she owed in return for her transferring rights to her home to me , except for one part where she would live. She now says the agreement was unfair, and that it is cancelled because I exploited her. She continues to live in all of the house and I am worried she may try to ‘sell’ it again. What legal action should take to enforce the agreement and protect my rights which have yet to be registered ?

Agreements •Procedure / Validity

Where a close relative attempts to cancel an agreement to transfer property rights it is possible to ask the family court to enforce the contract, and to :

·pass temporary or permanent orders ordering him/her to vacate the property, except for the part of the home to which he/she retains rights

·pass temporary or permanent orders to prevent him/her performing any legal deeds regarding it other than those required for the completion of the registration of the transfer of the property rights according to the agreement.

My ex is refusing to honour the financial terms of our court authorized divorce agreement and will not vacate the family home, to allow for its sale. He has applied to court to cancel the agreement which was authorized by court a few years ago. We both had lawyers at the time. What action can I take ?

Agreements •Procedure / Validity

As well as filing your defence you can be pro-active and file an application to throw out his application to cancel the agreement, and also apply to enforce the agreement, by an order to evict him from the property . The fact that your ex was represented by a lawyer at the time the court authorized the agreement and that he appears to have been unreasonably long in taking action to cancel it will be in your favour. It is extremely difficult to get a financial agreement between spouses which has been authorized by court cancelled as the judge is under a duty to check that the parties fully understand its terms and implications before it authorizes it.

Can the same judge who authorizes a divorce agreement with financial conditions hear an application to cancel it ?

Agreements •Procedure / Validity

Certainly.

Can an agreement between a couple which provides for the registration of their joint home in their minor children’s names after their divorce, and for child maintenance, be made before a notary, and be fully binding ?

Agreements •Procedure / Validity

No ! Firstly, a property relations agreement can be authorized before a notary , instead of a court, before marriage. However, if it is only authorized by a notary , instead of a court, which incorporates it into a judgment, it cannot be enforced . To be enforceable, it has to be authorized by a court, if it has not been before. A property relations agreement between a married but divorcing couple included in a divorce agreement must receive court authorization, and receive the binding value of a judgment. An agreement regarding child maintenance falls within the jurisdiction of a court, and sometimes the transfer of property to minors also requires court approval, as rights and obligations are involved. Accordingly, an agreement of this kind should be submitted to court for approval. This way it will have the binding legal value of a judgment

A pre-nuptial agreement is only legally binding if duly authorized – this can be done before a notary or a marriage registrar, or at the family court or the rabbinical court.

If one makes a premarital agreement, covering property, are there rules about authorizing the signature of the parties ?

Agreements •Procedure / Validity

Yes ! A pre-nuptial agreement is not legally binding unless the signatures of the parties receive the authorization of a notary or a marriage registrar, family court or rabbinical court.

To make the agreement enforceable regarding property, it should be authorized in court, and not just by a notary.

What is the procedure involved in making a property relations agreement so that it has maximum legal validity ?

Agreements •Procedure / Validity

It must be in writing, can be signed privately by the parties, or in front of a lawyer, but in order to give it maximum legal validity, it must be authorized by court – preferably the family court, or the rabbinical court. Before the court can authorize the agreement under the 1973 Spouses’ Property Relations Act , it must ask both parties ,who must be present in court, if they signed the agreement of their own free will, with an understanding of its contents and implications– and it must be satisfied by their answers that this is so. Only afterwards will it authorize the agreement, and give a judgment doing so. This is recorded in the protocol of the judgment and the agreement receives an appropriate court stamp and is attached to it.

This requirement holds whether the property agreement is made by a couple before they marry, a cohabiting couple, or a married couple.