The Unique Family Law in the State of Israel by Yitshak Cohen

Author:Yitshak Cohen
Language: eng
Format: epub
Publisher: Academic Studies Press
Published: 2020-05-12T00:00:00+00:00

V. THE MODERN THEORETICAL RATIONALES FOR JOINT PROPERTY

A. The Joint Property Principles

Aside from the clear ruling in Israeli court decisions that fault is not to be weighed in property distribution, no other explanations are given. This may be due to the delicate and fragile nature of family law in Israel, in which the separation of church and state is not applied and legislation imposes religious norms upon the general secular public. For example, divorce proceedings are determined by religious law, in which fault is a primary consideration. The issue of property is determined by civil law, which differs from religious law in this regard.

Civil courts recognized that extramarital relationships are given significant weight in divorce proceedings, and a particular remedy is provided to the party who was harmed. The courts therefore viewed themselves as exempt from compensating for that harm through the property distribution proceeding. In contrast, under the laws in the United States, extramarital relationships are not weighed at all in the divorce proceeding.184 For that reason it is more appropriate for the state legal systems in the United States to compensate for this fault by weighing extramarital relationships in property distribution.

However, aside from religious considerations, it is worthwhile examining the modern rationales for joint property between spouses as reflected in the Israeli legal system. These rationales are also relevant to the state legal systems in the United States. The rule of joint property in Israel was created by court decisions. At first, it was defined as follows, “When there is no agreement, or when the intent of the parties at the time of the purchase is unclear, the court attributes to them the intention that the property will belong to both of them in equal portions.”185 Sharing is characterized by complete and “equal division” from the beginning of the marital relationship.186

At first, the joint property rule was built on two central elements: the existence of a normal marital life (mutual respect, no violence, taking care of each other, etc.); and a joint effort.187 In later years, the focus transferred from the element of normal marital life to the element of joint effort. With time, this element essentially required that a couple live together under one roof.188 Ultimately, the joint property rule is a legal tool intended to create an exception to the general property laws and the laws of evidence. Without the joint property tool, spouses would be subject to a separation of property regime.

In early decisions, courts based the joint property rules on a contractual rationale, setting forth an implied agreement between the spouses.189 Under this implied agreement, spouses intended to share their rights equally.190 The courts investigated those intentions,191 and the element of a normal marital life suited the contractual rationale. However, in a strained marital relationship, that rationale could not easily serve as a solid theoretical basis for the joint property rule. Furthermore, the investigation of the spouses’ intentions was not a simple task.192

It was even more complicated when the “intention attributed to the parties” actually focused on “the intention attributed to the registered owner of the property.

Download

Copyright Disclaimer:
This site does not store any files on its server. We only index and link to content provided by other sites. Please contact the content providers to delete copyright contents if any and email us, we'll remove relevant links or contents immediately.