Common-law spouses

Choosing to live together as common-law spouses is not very rare, be it by choice or the lack of ability to marry in Israel, in some cases, or due to social circumstances (which need a separate article). There are many couples in Israel, some are same-sex couples, who choose to live together but are not married.

Who are common-law spouses? How are these spouses defined? What are the social rights given to them? What is the law that regulates the definition of their lives? Why do common-law spouses choose to live without marriage? These are some of the questions I am asked by people. I will try to answer these questions in the following article.

What causes couples to choose to love as common-law couples?

Before “diving” in to the legal review, I’d live to take time to answer the above question – why do these couples choose Not to marry? The reasons are varied, these are some –

Operative and Ideological reasons: there is no doubt that one of the main reasons for the formation of the “establishment” of common-law spouses is the enforcement of the religious law on marriage and divorce. In Israel, as opposed to many other countries in the world, the laws of marriage and divorce are not derived from stale laws but from religious laws, i.e. the religious law that applies to the couple. The law known as “the king’s council” which was passed in the year 1922 during the British mandate, states that the different religious sects will have the sole right to rule in wedlock matters. When the state of Israel was established the Rabbinic Courts Law (“Marriage and Divorce”) 5713- 1953 was passed. This rule stats that marriage and divorce between Jews will be held according to the Jewish religious law (the Tora). Thus, Jewish couples who want to divorce have to go to the Rabbinic court. Other religious sects have their own courts, Muslims can marry Muslims and divorce them according to the Sharia, in the Muslim court. Same goes for Christians and Druze.

The operative meaning of enforcing this law is that many couples cannot marry in Israel. For example: a Cohen and a divorced woman cannot marry in Israel because the Jewish religious law does not recognize this marriage. Same-sex couples cannot marry in Israel because none of the religions recognize this kind of marriage. Couples form different religions cannot marry in Israel because none of the religions recognize mixed faith marriages, unless one of the couple convert to the other spouse’s religion. Some Jews who came from the former USSR find it difficult to marry because their Judaism is doubted by the Rabanut, etc. So, some of the reasons are operative – they cannot marry in Israel. The other is ideological – couples do not want to marry due to the enforcement of the religious law which is discriminating and archaic.

Rising the standard of life and life expectancy

The rising of the standard of life creates many temptations and more possibilities. The rise in consumption, knowledge and global accessibility have a strong influence on the concept of the modern family. A couple wake up one morning, so to speak, and decide they want to divorce because they want to check other options. Accessibility and available knowledge can cause people to want to check out other options and to get to know more of the world. This can cause a rise in common-law couples.

High divorce rates

Divorce rates in Israel, as well as other countries in the world, are rising. The concept of marriage has changed. Many couples want to have a second, third or fourth chapter of pair- relationship. The establishment of marriage is much less sacred nowadays than it was in the past. The combination of the rising in life expectancy, the rising of status of women and modern reality all bring, amongst other things, to the rising of divorce rates and hens, to the rising of the common-law spouses.

Rising of the status of women

In the past, the concept of the family was that it is the woman’s responsibility to bring up the children and the father’s responsibility to provide for his family. Nowadays the view is different. Formally, women are equal in their status and rights to men. In many cases, women ern as much as men do and occupy high rank positions (prime-ministers, judges, CEO’s etc.). The rising of women’s status has an effect on the perception of marriage and family which, inevitably, influence the rising of common-law spouses.

Modern changes influencing the perception of family

Changes in the status of women are not the only changes we are seeing nowadays. There are changes in the perception of the family too. If, in the past, a family was viewed as a husband, wife and children, nowadays we see new families – same-sex couples forming a family, single parent forming a family by adopting a child or by having children by insemination or surrogacy, etc.

Moreover, we are witnessing a rising in joint custody of divorced parents. In the past, sole custody was given to the mother but nowadays more and more fathers want to have a more significant part in their children’s lives. Al this reflect on the concept of modern family.

How are common-law spouses defined?

The best way to define a common-law couple would be: a couple who maintain a household together and their way of life proves that they have tied their fate together. A common-law spouse should look no different in their behavior, to a formally married couple.
Actually, the difference between a common-law couple and a married couple is the actual formal registration and the formal recognition by the state. They are entitled to almost all the rights granted to married couples. The words of Professor Shahar Lifshitz define who common-law spouses are: “the institution of common law allows those who sustains a relationship like marriage to enjoy most of the civil law rights of the institution of marriage, including almost all the economic rights and obligations of married couples. This provides some response to the plight of people who are prevented to marry and those who ideologically oppose the religious ceremony of marriage and content of the laws. This aspect of the law of common-law spouses connects to a broader trend toward of substitute civil marriages, such as consular marriages, civil marriages abroad, and in some cases even private marriages”. (Lifshitz Shahar, common-law spouses in the view of the theory of family law (2005), Nevo Publishing, p 655).

It is not always easy to define common-law spouses. The way to recognition has had to go through legal fights, until we have come to the current situation. The fight is not over yet, recognition is not always full. From time to time the court rule verdicts that would not have been given if the couple were “legally” married.

In order to define common-law spouses one needs to fulfill some criteria, which will determine if the couple are really common-law spouses:

How the couple define their relationship: do they see their relationship as a committing relationship where they have tied their fate together? Do they live together in the same house? Do they maintain together a common household? (This is a separate test I will deal with below). Why are these subjective tests so important? The answer is that, sometimes, couples can live together for many years but not see their relationship as committing. Sometimes people live together because it is convenient and they do not intend to tie their fate together. The subjective tests, tough simple, helps in definition.

Do the couple maintain a common household? One of the most important test is the common household. If the couple reside in the same house, have purchased a house together and live in it, bring up their common children together – it is safe to conclude that they are common-law spouses. Their relationship proves they have tied their fate together and in that aspect, are no different from a formally married couple.

Period of the relationship: Contrary to popular theory, the duration of the relationship does not necessarily constitute a decisive test regarding the recognition of common-law spouses. There may be a couple who have been in a relationship for a short period of time and still are recognized as common-law spouses. However, there might be a couple who have been in a relationship for a long time and still will not be recognized as common law spouses. However, the duration of the relationship may indicate something about the framework for relations between spouses. Therefore, as part of the tests, we must examine how long the couple have maintained their relationship. When it comes to spouses living together who have had a joint household for many years, it is clear that this will be a strong indication that they are common-law spouses. In contrast, a couple who have had a relationship for several weeks or even months and do not even live together, will not necessarily be recognized as common-law spouses, and they will have to prove that they are common-law spouses.

How the people close to the couple view their relationship? The “recognition test” is how the couple’s family and people close to them see them. In some cases this has a vast influence on the decision whether the couple are common-law spouses. For example, there were cases where the couple had a long relationship but their friends and families didn’t know the other spouse. It is clear that in such cases it is an indication that the couple are not necessarily common-law spouses who have tied their fate with each other.

There is no doubt that when a couple tie their fate with each other, they do not hide their relationship, but rather, they are proud of it. When a coupe are known by their friends and family as a couple living together and maintaining a common household, and their fate has been tied together, it is easier to prove and recognize this couple as common-law spouses.

Mid-summary: in order to check if a couple are common-law spouses for the purpose of recognition of rights and obligations, one needs to check a few elements. It is important to state that no one test will determine alone but rather the whole “ensemble” of the specific relationship being legally questioned. Each “ensemble” should be checked individually, while using common sense.

Is there a law regulating the status of common-law spouses?

The answer to this question is: No. In Israel there is no law that regulates the relationship between common-law spouses or the definition of their status and all the test I have reviewed above are the result of many years’ rulings by the family courts and the Supreme Court. Ultimately, in order to determine if a couple are common-law spouses, one must use the text I described above. There is no specific ruling that regulates the rights and obligations of common-law spouses. These rights and obligations are learned from specific rules applying to married couples. As opposed to married couples, common-law spouses are not registered and there is no formal certificate given to them.

Please note that common-law spouses are defined as members of family therefore litigation between common-law spouses is done in the family courts. For example: a dispute between common-law spouses regarding their common property or determining child custody will be handled in the family court.

What rights do common-law spouses have?

Up to now I have reviewed the subject of how common-law spouses are determined. Now I’d to turn my attention to the subject of common-law spouses’ rights. Is there a difference between common-law spouses’ rights and married couples? The answer is that there is not much of a difference. Married couples can more easily realize their rights where common-law spouses have to prove that they are indeed common-law spouses. A list of some the common-law spouses’ rights is:

National Insurance Institute rights: common-law spouses are entitled to the same rights as married couples, i.e. widow’s allowance, rights due to serving in the reserve duty, maternity allowance for children born to common-law couples etc.

Tax law rights: As married couples, if the common-law spouses live together and maintain a common household, they will be entitled to Income tax credits and other rights, similar to married couples.

Division of property rights: same as married couples. Common-law spouses are entitled to balance of resources, as married couples.

Laws of wills and inheritance rights: same as married couples. Common-law spouses are entitled to inherit their spouse both as heirs and/or by will. The law of inheritance 5725-1965 does not use the term “common-law spouses” but the ruling treats them as equals to married couples, having the same rights and obligations.

The right to serve as beneficiaries: Common-law spouses are entitled to serve as beneficiaries in insurance agreements, whether they are life insurance, personal accident insurance or any type of insurance. The fact that they are common-law spouses and not a married couples is not relevant. The right to be a beneficiary also effective to one of the spouses’ workplace insurance.

Equality in the framework of legal proceedings: Common law spouses are entitled to equality in all matters relating to litigation in the Family Court. For example, common-law spouses are entitled to have their case heard in camera (behind closed doors). As with married couples, it is forbidden to testify against one another, due to the rules of evidence customary in Israel, etc.

To sum:

The “institution” of common-law spouses is a very important institution within the framework of family law in Israel. The reasons for its strengthening are legal and practical, personal and public. The rule states that common-law spouses shall be recognized as such in accordance with a number of different tests, none of which is necessarily decisive. Common-law spouses are entitled to rights and obligations, like any married couple. If you encounter legal difficulties as a common-law partner, it is a good idea to contact a family attorney for advice.