Balancing Resources Between Spouses
Many couples who are in the process of divorce, call us to find out their rights and obligations regarding joint property after a divorce. There is no doubt that the issue of division of joint property is an issue that concerns many people. For this reason I have put together this article to shed some light on the subject.
What is the Law of Property Relations?
The law relating to the division of property between spouses, is the “Law of Property Relations”, 5733-1973. This law regulates how the property will be divided between the spouses. The family court is the one authorized to rule in property matters, according to the Financial Relations Act. However, with the consent of the spouses, property matters can be ruled before the Rabbinic court. Alternatively, you can give the Rabbinic court jurisdiction to hear matters of property under the property relations Law, when binding a divorce law suit with the issue of division of property. This however is a topic for a separate and will not be dealt with in this paper.
What is the balance of resources arrangement?
The Financial Relations Act establishes a “legal” default regarding the division of property. The Default is called a “resource balancing arrangement”, established in Section 5 of the law. This arrangement determines that when a marriage is terminated or a couple separates, the division of the property should be equal, if it is their common property. In addition, the Property Relations Law determines that when the marriage is terminated, the couple will be entitled to conduct a “balance of resources”, which includes all the assets of the couple. The term “all the couple’s assets” includes all common property, including provident funds, savings, pensions, business reputation etc. In fact, the Property Relations Law determines that at the end of the relationship, each spouse is entitled to half of the joint property of the couple.
Which property is not taken into account, in a resource balancing arrangement?
The Financial Relations Act states that all the assets of the couple must be considered, in the arrangement, as we detailed above. However, the Property Relations Law states that there are types of property that are taken into account in the order for balance of resources. For example, property that was given to one of the spouses as a gift, property belonging to one of the spouses before the marriage, old-age pension, pension paid to one of the spouses due to injury or disability allowance, etc. In other words, if a spouse receives an old age pension, then his pension shall not be taken into account, as part of the Resources Balancing Arrangement. Additional property not taken into account in the balance of resources, is property that the couple agreed in writing, not to be taken into account. More on this subject in the next section.
How can change the balance of resources arrangement?
As mentioned above, in a request for balance of resources, there are types of property that are taken into account. The Property Relations Law states that property that the couple agreed about in a written agreement between them, will not to be taken into account. This agreement is related to in the Law of Property Relations as a “prenuptial (or financial) agreement”. A prenuptial agreement is an agreement signed between the couple before the marriage or during the course of the marriage, which regulates the division of their joint property when separating. As part of a financial agreement, the couple can agree that a significant portion of the property will be transferred to one of the spouses. That is, they are permitted to order and reorder the balance of resources “defaulted” in the Law of Property Relations. However, the agreement between the spouses should be done with consent, agreement and no coercion.
It should be noted that the financial agreement must be approved by the Family Court. The couple’s signatures on the agreement in not sufficient to give it validity, it must get legal authorization, giving it the force of a ruling.
What is dismantling of sharing?
Often, spouses fail to reach an agreement on the joint residential apartment, listed to them both. In such cases a situation could occur where one spouse refuses to sell the apartment, and the other spouse is obliged to the mortgage payments. In such cases a claim for dismantling of sharing can be filed, which the court may impose on the recalcitrance partner to sell the apartment and if necessary, to appoint a receiver to do so.
Matters of property and division of property between spouses, are matters that require knowledge and experience. Therefore, if you are in the process of a divorce, the wisest move you can do is to contact a lawyer specializing in family law. Legal representation could maximize the rights you are entitled to, during the divorce proceedings, which involve the division of joint property.