Property Rights

The Supreme Court has held that there is an obligation for both sides to be represented in family law proceedings which called ‘the law of human souls’. It did so when faced with a wife’s plea for permission to appeal against a District Court decision upholding a family court decision to divide partnership in the family home. The appellant was unrepresented and her husband was represented; the family court had appointed his lawyer to act as receiver of the family home, registered in joint names, and to undertake its sale and the division of the proceeds.

When faced with a plea to divide up the family home, a court should be doubly cautious in weighing up its findings before it draws its conclusions, the Supreme Court held. That obligation cannot be exercised where there is extreme inequality between the parties as to legal representation, when one is represented by an experienced lawyer and the other, unrepresented, pleads in layman’s language. The legislator recognised the need for people accused of crimes to be represented – and there is justification that it should recognise this right of representation in relation to family law proceedings, the judgment held.

Accepting the appeal, the Supreme Court cancelled the decisions of both the family and the district court, and sent the case back to the former so that it could carry on hearing the case after the wife had obtained a lawyer.

Yes ! If the valuation is also acceptable to the wife, then there is nothing to prevent the husband from buying the wife’s rights in the apartment, according to it. This will mean that the appointment of a property receiver, which is costly, is now unnecessary. If, however,wife does not find the valuation acceptable, then application can be made to the court for it to appoint an assessor itself, as its own, court-appointed expert, so that the sides can weigh up their decision. Whilst it is possible to reach a simple ,effective and result cheaply, there is no need to appoint a property receiver.

Where a property valuer is appointed within the framework of a divorce agreement and is supposed to give his opinion , as an expert, on the value of the real estate, and the parties agreed that his finding would be binding then he acts as a ‘quasi-arbitrator’, The Tel Aviv Family Court has held . As such his findings can only be criticised or changed by the court if he has acted outside his powers, including acting against the principles of natural justice. The court can also interfere in the valuation where it contains a substantial mistake .

While an admission of adultery by a wife can result in her losing her right to maintenance and her rights in her Ketuba ( marriage contract ) at the rabbinical court, there should be no connection her adultery and her consequent loss of property rights. However, in November 2002 the Supreme Court of Justice held that where a wife admitted to having committed adultery for 12 out of her 17 years of marriage then this shows that her marriage was not harmonious – and has implications regarding her property rights . Where a wife marries before 1974 her property rights are governed by the principle of marital partnership and such behaviour can overturn the assumption of marital partnership and deprive the wife of her right to half of the property.

No ! The Supreme Court held many years ago that there is no connection between a spouse’s role or responsibility for the break-up of the marriage and his/her property rights. In other words if one of the spouses leaves the home or commits adultery for instance, he/she will not lose his/her rights to joint property.

No, unless they made a property relations agreement which said that the parties’ property rights were to be proportionate to their relative investment in the property, then they will be entitled to equal shares.
Where there is no such agreement and once a property is registered in joint names it is accepted that they intended for it to be equally owned between them. Only where marital property is registered in one party’s name is their room for arguing about ownership and the amounts each invested.

Yes. If the sale is in the hands of the receiver the process is supervised by the court which must approve the sale. This eliminates the possibility of any irregularities/underhand payments that might occur if a manipulative spouse were responsible for the sale.

Yes, if the banks take legal action to recover the debt and the court gives a judgment ordering them to pay up, and they do not , then creditors are entitled to apply to the Chief Bailiff at the Execution Office for a freezing order on the home to guarantee the debt. If the couple are still unable to pay 30 days after the order is granted , then the process of selling the property to cover the debt can start. The law contains provisions to protect debtors families from becoming homeless; the Chief Bailiff will not act to evict the family from the home unless he is satisfied that they will have “reasonable accommodation” or an “alternative arrangement awaiting them. In practice, this means that they may be forced to sell to cover the debt, and have to buy a smaller property with what money is left over, or even rent one.

Yes. When the court decides on the division of property rights in the family home, it can decide on an unequal division to take into account the minors’ accommodation needs, so that the parent who gets custody will get a larger share.

Whether delay in filing for a declaratory judgment about one’s rights in the former marital home amounts to a relinquishment of those rights will depend on the circumstances of the case in question, and the court has discretion over the matter. The Supreme Court has held that delay in itself does not amount to an obstacle preventing a former spouse from filing for a declaratory judgment regarding property rights. In the late 1980’s it held that it was “unjust” to say that a family member who took no interest in his formal rights had given them up if he only became interested in them because they became “relevant” due to a change in circumstances.
Furthermore , in the 1990’s the Supreme Court held that only if the plaintiff’s behaviour amounts to a relinquishment of rights and the defendant’s situation is worsened as a result of the delay, will it prevent the former from succeeding. As a declaratory injunction is based on equity, the court will check to see that the Plaintiff acted in good faith, and came to equity “with clean hands”, it said.