In recent years, more and more couples are opting to live
together without getting married, for a variety of reasons. The
State of Israel has enacted clear laws addressing the division of
property for instances when couples who are legally married decide
to separate; however, if a couple decides to not be formally
married, they are deemed a "common law couple," and then
matters become more complicated.
Property rights of common law couples, in the event of a
separation or, heaven forbid, if one of them dies, are anchored
mainly in case law and not in legislation. In Israel, unlike in
many other countries, the term "common law couple" is
neither defined nor uniformly regulated in legislation.
In Israel, the definition of a " common law marriage"
has evolved over the years within the scope of court rulings, which
prescribed two main criteria for recognizing a common law marriage:
(a) intimate conjugal relations as a husband and wife, in a manner
that shows that the couple indeed consider themselves a married
couple for all intents and purposes; (b) cohabitation – the
intention is not co-running of a household that derives from some
need (financial, personal, convenience, etc.), but rather, a full
domestic partnership as the natural outcome of two people who
choose to join their destinies. Furthermore, the duration of the
couple's cohabitation is irrelevant; the couple's intention
is what matters.
It is important to keep in mind that the court will deliberate
each case on its merits according to its specific circumstances,
analyzing the entire set of facts with the aim of understanding how
the couple categorized their relationship. The courts take a
flexible approach when ascertaining whether the couple should be
deemed in a common law marriage, since the court is cognizant of
the fact that no two relationships are alike and each couple's
shared domestic lives have unique characteristics.
Have you separated?
It is important to know that, when it comes to transferring
rights in a shared residential apartment between spouses after they
separate, common law couples benefit from the same reliefs as those
that apply to a legally married couple. The salient point here is
that a transfer of these rights is not deemed a
real-estate transaction and therefore, is not subject to
Section 55 of the Inheritance Law expressly refers to common law
couples and prescribes that the testator is deemed as having
bequeathed to the surviving (common-law) spouse whatever the
surviving (common-law) spouse would have received as an inheritance
by law had they been legally married to each other. Also, the
surviving spouse may sue for alimony from the deceased spouse's
Sharing of assets – beyond the rights pursuant to
inheritance laws, common law couples are exposed to a situation
whereby one of the two attempts to apply the 'presumption of
sharing' to their relationship when the couple separates,
claiming that the assets accumulated during their cohabitation
should be deemed the couple's 'common property' for all
intents and purposes. The intention here, when referring to
"accumulated assets" during the period of their common
law marriage, is the real-estate assets, corporate stocks, options
and any other property.
About two years ago, a judgment was handed down by the Family
Court in Haifa, which recognized a woman as the common-law spouse
of the deceased for the purposes of section 55 of the Inheritance
Law, despite the fact that they had not been living together on a
permanent basis and, prima facie, failed to satisfy the
second criterion: co-running of a domestic household. The woman
succeeded in proving that the couple had regularly maintained
family life and that their intention had been to formalize their
relations. The court ruled that that the concrete case must be
considered after examining the couple's subjective intention
regarding the formalization of their relationship and the
steadiness of the relationship and, therefore, the court recognized
the woman as the deceased's common law wife for the purposes of
the rights to the inheritance. We clarify that at issue is the
ruling of the court of first instance and an appeal has not yet
If you are a common law couple and want to avoid disputes and
disagreements that end up in court, we recommend drawing up and
signing a non-marital conjugal cohabitation agreement to keep
assets separate and to regulate and anchor your rights and
obligations as a couple in a common law marriage during the period
of your relationship and in the event of a later separation. It is
also recommended to have this agreement ratified by a family
We also recommend that both spouses prepare a last will and
testament to regulate the division of each of their estates.
Originally published January 25, 2016
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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