Property Rights

Setting up a trust fund in favour of grandchildren,to start either now, or after one’s demise is probably the best way of giving them a headstart in life and protecting them from a tendency to over/mis-spend their inheritance. A trust fund is a legal instrument which nominates a trustee who holds the money/shares etc in trust for the beneficiary/beneficiaries. He/she is responsible for managing , investing and releasing the money. One can have the fund drafted, for example, so that grandchildren have controlled access to the interest on the investment via the trustee during their teenage years and/or early adulthood, with it being released for specified purposes.

Yes – as a result of decisions, temporary and final that the court may make on two different issues, of maintenance and property rights in the home !

Firstly, a temporary decision made by court need not be similar to its final judgment in the plea. A court has discretion to oblige a husband/father to pay ongoing mortgage payments, within a decision it makes on temporary maintenance. It is not acceptable for a court to burden the husband/father with the full load of the mortgage repayments, within a final judgment on maintenance. However, payment of the ongoing mortgage is likely to guarantee accommodation, indirectly, although the question of mortgage actually belongs to the property relations between the couple. In this connection, the obligation is a mutual obligation on both spouses. However, within the framework of a property plea, the court is allowed to order the couple to pay off the outstanding loan on the mortgage , each paying an equal part, and is not able to oblige one of them to pay off the entire unpaid loan by him/herself.

Usually property owned by one partner prior to marriage remains that individual’s personal property and is not included in the pool of marital property to be divided between the parties upon divorce, because it is not considered the ‘fruit’ of their mutual effort . However, mortgage paid during the marriage from joint resources as a result of mutual effort will be taken into the account and the court will relate to the amount of repayments made in relation to the value of the apartment, when it divides or balances out marital property upon divorce. In other words, the paid-up part of the mortgage is joint property, so that the wife will be entitled to a sum equivalent to the half of the paid-up part of the mortgage in relation to the market value of the apartment

at the time of divorce. If, for example, the husband made a 60% down-payment on an apartment which was registered in his name before he married, and took out a mortgage for the remaining 40%, which he totally repaid during the marriage, then at the time of divorce, the wife will be entitled to 20% of the market value of the property (half of the paid-up mortgage).

According to a case before the Tel Aviv Family Court in September 2002 the best solution for dividing up a property ‘bought’ this way is to do it in proportion to the value/size of each buyer’s grant. In the particular case the apartment ‘buyers’ were all Ethiopian immigrants, a married couple and the wife’s mother-in-law who had combined their eligibility grants to purchase an apartment together . After the wife’s sudden tragic death it was impossible for the sides to remain living together due to animosity and violence on the part of an adult son from the deceased’s first marriage and the sick, elderly mother-in-law moved out to live with other family. The court ordered the property sold and the division of ‘ownership’ according to the parties’ relative grant contributions which enabled the parties to transfer their eligibility to another property if they so wished within the required time.

Yes – in this case a wife would be entitled to at least a third of the property, but she would also be responsible for half of the outstanding mortgage loan . As a third of the property was financed by the sale of property registered in her husband’s name only before their marriage, this will remain his.* The remaining two thirds is covered by the mortgage loan taken out jointly by the parties so that each will have a third ownership here. Accordingly, the wife will have rights to a third of the property and the husband two thirds. The unpaid mortgage loan will be the equal, and joint responsibility of the parties.

* Only in “long” marriages will the wife have any possibility of claiming half of the rights to property owned by the husband before they married.

Neither of you is right ! The fact that the apartment is registered in joint names at the Land Registry is the key factor here. Assuming that the apartment is registered in your names in equal parts it will normally be divided accordingly between both of you as spouses. The fact that one party used money gained as a gift or by way of inheritance and used this as part payment towards the purchase of the apartment does not act in his/her favour and give him/her greater rights in the apartment. Nor does the fact that the mortgage repayments were made from only one spouse’s bank account ( and not from a joint account, or from both parties’ accounts) , help that particular party gain more rights in the property either.

Firstly, in general a family home acquired during a couple’s marriage is joint property even if it is registered in only one spouse’s name .

Secondly, if the property is registered in one spouse’s name only but both of them take out a loan to purchase it, the other spouse must still sign on the mortgage deed for the bank to be entitled to actualise its right to all the property if the repayments are not met.

If a bank attempts to realise its mortgage on the whole property which is registered in one spouse’s name only, and it is discovered that the other spouse never signed the mortgage deed, then the action relating to the latter’s share of the rights will be invalid.

You and your wife each have the right to purchase the other’s rights to the property by transferring all the mortgage loan into his/her name.