Who are common-law spouses?
Common-law spouses are a couple who have decided to cast their lot together, to conduct a common a way of life as a married couple for all purposes, but, for their own various reasons, have refrained from formalizing the relationship in a form of marriage, be it religious or civil. The legal recognition of the couple as “common-law spouses” is designed to equal the status of couples who live together as married, to those who are actually married.
“Common-law spouses” in not a lexical item but a legal definition of the relations between the couple. This definition is actually the fruit of judicial legislation by the Supreme Court which requires the exercise of judicial discretion based on the facts and evidence concerning the nature of the relationship between the parties.
Common-law spouses will, in some cases, receive the same or similar rights as married couples. For example: the wife’s right to receive alimony, the right to receive child support, the right to a part of the common assets of the parties and social rights such as “survivorship allowance ” which the common-law spouse is entitled to receive if the court recognized the remaining spouse as a rightful “common-law spouse”.
What are the conditions for recognition of a couple as a “Common-law Couple?”
During the years the courts have determined two preconditions to the existence of a relationship of common-law spouses: the first – family life and the second – communal household.
More so, the courts set some criteria whereby one can see if the couple are indeed common-law spouses. The tests to establish “common-law spouses” are mostly based on article 55 of the Inheritance Law 5725 – 1965, which establishes the right of the “common-law spouses” to inherit according to the law. The article does not use the term “common-law spouses” but states explicit terms: “Man and woman living a family life, running a common household but are not married to each other”.
So, what does the term “family life and common household” mean?
This term has been interpreted by the courts in Israel, which have clarified as follows:
Intimate relations: this condition requires intimate relations as between a husband and wife, based on the same regard of affection and love, dedication and loyalty, showing that they have cast their lot together.
Managing a common household: the intension is not just a common household managed for personal reasons or comfort, financial worthwhileness or business-like arrangement but as a result of natural joint family life, as is common between a husband and wife, who adhere to each other in a life and lot relationship.
The courts have emphasized that these two conditions are not detached, or do not integrate but that they are two components entwined in each other: “Not the family life alone is in question here, but the family life with a set character, i.e. which will manifest on the existence of a common household”
The Supreme Court judge, the honorable Dov Levine ruled in a verdict form 1985 that: “In light of the fact that you cannot form one pattern and exact criteria to the term “family life” and the term “common household management” it has been determined that the question of the existence of these conditions should be considered according to subjective criteria i.e. How the couple themselves saw their relationship. One should not search or formulate rigid criteria for the expression “family life” and the expression “common household”.
The honorable judge Shaul Shohat, in the court family file 16870/00, Jane Doe versus John Doe determined it as follows: “If, for many years, the couple are residing under the same roof which is used as a common home and where they spend their time, including meals and common diners, as a permanent lifestyle; if they date and spend time together, separately and with others, go on trips abroad together, tack care of each other either with funding or with house chores and express their concern to each other regarding their state and insure their safety and health – all these are enough to show that the relationship has “characteristics of a family life”.
This characteristic relationship was defined by the former Supreme Court President, Judge Aharon Barak, in the high court case Danilowitz:
“The one with whom he lives and runs a common household, from whom he parts when he goes on his business and to whom he returns at the end of the day, this is a common criteria for a wife and a common-law spouse”.
Example for more criteria by which the court will recognize common-law spouses:
Bringing-up children is an indication to the existence of family fife but not mandatory requirement
If the couple living together intend to bring-up children and continue the lineage, this fact could be a substantial indication to leading a family life in a common household; in some circumstances it might support the conclusion that the couple intended to share their assets. That said, it is not a necessary requirement and each case should be tested according to its circumstances.
Having intimate relations – according to court ruling, sexual relations should be regular, as a married couple and not occasional sex.
Financial cooperation between the couple – shared habitat or a joint bank account are not a prerequisite but are essential conditions, for when in existence, there is a fair chance that the court will recognize the couple as common-law spouses.
The social aspect and the knowledge of the public – In the past – knowledge of the public and the way the couple introduced themselves in public was required as evidence of the couple’s relation. When a person wanted to prove to the court that he/she are in a common-law spouse relationship, he/she would have to present witnesses and evidence to the court (was the couple seen together, did they go out, did they come to family events together, go on vacation, buy presents for each other).
During the years, the rule was changed and it was ruled that public knowledge does not matter, it will not prove the relationship between the couple. What counts is the intentions of the parties, how they assessed themselves.
Only if the parties’ intension is not clear, then one can turn to external sources such as witnesses and evidence.
Can a married person be in a relationship of “common-law spouses”?
In 1962 it was ruled, in the Pesller case, that a married person can have a relationship of common-law spouses. Due to this ruling some laws were amended such as the estate tax law and the inheritance law.
How long must a coupe be together in order to be defined as common-law spouses?
There is no determined period of time since the matter is open to the court’s ruling. However, in the case of Amir Verses Zager it was determined that, although the couple lived together for only three months, the court bestowed the woman the status of common-law spouse so she could inherit her deceased partner.
Finally, an interesting verdict from recent times –
A mistress gave birth to 9 children of the deceased and was recognized as a common-law spouse but did not receive estate funds
The deceased, a Bedouin, was married and had 6 children, at the same time he was in an intimate relationship with the plaintive and this relation resulted in 9 children together.
After the man passed, the mistress filed a claim to the family court near Haifa to be recognized as a common-law spouse so as to get half of his belongings. The mistress’s claim eventually landed in the Supreme Court and there, Elyakim Rubinstein the judge ruled that the mistresses should be recognized as the deceased’s common-law spouse due to the fact that the existence of 9 children is a significant consideration in the ruling of the parties as common-law spouses. However, it was ruled that, although the mistress was recognized as a common-law spouse and she raised and nurtured their 9 children, there was no evidence to show financial cooperation between the two therefor the mistresses claim to share the deceased’s property was denied.
This article is not intended as legal advice and should not be relied on it as such.