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 not to be formally married, they are deemed a “common-law couple.” Matters then become more complicated.
Property rights of common-law couples, in the event of separation or death, 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. Such rulings prescribe two main criteria for recognizing a common-law marriage: (a) intimate conjugal relations as a husband and wife, in a manner that shows the couple indeed consider themselves a married couple for all intents and purposes; (b) cohabitation – the intention is not the 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 together. Furthermore, the duration of the couple’s cohabitation is irrelevant. Rather, 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 its relationship. The courts take a flexible approach when ascertaining whether to deem a couple as being 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.
Separation and Death
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 tax.
In cases of death, section 55 of the Inheritance Law expressly refers to common-law couples and prescribes that the deceased 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 estate.
Sharing of assets
Beyond the rights pursuant to inheritance laws, common-law couples may also face a situation whereby one partner attempts to apply the “presumption of sharing” to the relationship when the couple separates. This partner is essentially claiming the assets accumulated during the cohabitation should be deemed the couple’s “common property” for all intents and purposes. “Accumulated assets” refers to real-estate assets, corporate stocks, options, and any other property accumulated during the period of the common-law marriage.
About two years ago, the Family Court in Haifa handed down a ruling recognizing a woman as the common-law spouse of a deceased man for the purposes of section 55 of the Inheritance Law. This was despite the fact that the couple had not been living together on a permanent basis and, prima facie, failed to satisfy the second criterion—the co-running of a domestic household. The woman succeeded in proving the couple had regularly maintained a family life and that the partners’ intention had been to formalize their relations.
The court ruled to consider the concrete case only after examining the couple’s subjective intention regarding the formalization of the relationship and the steadiness of the relationship. 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 this is an initial court ruling and an appeal has not yet been filed.
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. This will help keep assets separate and 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. We also recommend to have this agreement ratified by a family court.
Finally, we recommend that both spouses prepare a last will and testament to regulate the division of each of their estates.