Common-law couples

“Common law couples in Israel” is a legal definition referring to a spouses who has not institutionalized their relationship in the framework of a marriage, but whose joint life is sufficiently stable and established to make them legally considered a couple.

The body responsible for determining whether a couple merits this status is the Family Affairs Court (from here on referred to as “the Court”), employing a variety of tests to reach its verdict. Definition as a common-law couple has significant legal implications. In this article, we will consider the Court’s tests and implications of recognition as a common-law couple.

It is highly recommended that a couple who has been together for a period of time (several months) write a “joint life agreement” formalizing their relationship. In this way they will avoid a situation where the Court needs to rule on their case and may force on them unwanted arrangements.

Scope of the term “common law couple”

In recent decades in Israel, more and more couples choose not to marry; for a variety of reasons such as disaffection with the institution of marriage in general, or religious marriage specifically; or because marriage in Israel is determined by religious law. There are also couples who cannot get married in the Israeli system even if they want to (such as a Cohen with a divorced woman), etc.

Since there are increasing numbers of couples who fit the definition of a common law couple, both legislators and courts need to get involved in addressing these couples’ needs.

“Common law couple” is not a status  

The institution of marriage creates a status for three reasons:

• The state grants “recognition” to marriage, in the form of registration, from a desire to protect the family unit.
• Marriage has a universal quality, and is valid anywhere in the world (legal authorities, etc.).
• The marriage bond has a permanent quality, and dissolving it requires the involvement of the authorities; a marriage cannot be dissolved merely at the wish of the two parties.

In contrast, a common law partnership does not confer a status, given that someone can be married and at the same time be recognized as having a common law relationship with another partner.

Fundamentals of recognition as a common law couple

There are two conditions which, if fulfilled, mean that the couple can be recognized as a common law couple:

• Family life

“Intimate life like that between husband and wife, based on the same relations of affection and love, devotion and loyalty, showing that they have joined their fates to each other” (Nasis v. Yuster)

• Joint household

“A joint household not just out of personal need, convenience, financial feasibility or a practical arrangement, but as a natural consequence of joint family life, as customary and accepted between a husband and wife who have bound themselves to each other with a common fate” (Nasis v. Yuster)

Over the years, the Court’s rulings have provided guidelines which help in determining whether these fundamental conditions do in fact exist. The guidelines are as follows:

• Duration of the relationship

How long has the couple been together? Even three months is long enough to be recognized as a common law couple (Amir v. Zeger).

• Joint residence

A couple who is living together is considered to fulfill the second principle, “joint household”, unless proven otherwise (Bar Nahor v. estate of the late Austerlitz).

• Marital relations and monogamy

Part of the first principle, “family life”, is maintaining marital relations (Nasis v. Yuster), although the couple may be considered a common law couple even if they do not maintain marital relations.

• Mutual intent regarding the relationship

The couple’s intentions are evaluated by subjective criteria, how the two partners view their relationship, and not by objective criteria, how their relationship is viewed by the surroundings (Attorney General v. Susan Shukran).

• Economic cooperation

The existence of an economic “joint household” means sharing the costs of food, drink, and clothing, and not sharing purchases of property (Alon v. Mandelson).

Rights of common law couples

If a couple is recognized as a common law couple, each partner has various rights. We will highlight a few of them:

• Right of inheritance (if the following five criteria are met)
• A man and a woman (the right does not apply to same-sex couples)
• Family life
• Joint household
• The partners are not married to each other
• At the time of death of the testator, neither partner is married to someone else

If the testator has not left a will, the common law partner can receive part of the estate, as though she or he had been married to the deceased, as long as all the above criteria are met.

• Rights in dividing up property

When a common law couple separates, the “Shared Property Presumption” is applied to them in dividing up the property.

• The right to alimony from the partner

Being part of a common-law couple in Israel, an implied general agreement regarding financial support is established between the partners during their joint life. After separation, the right to alimony will arise only if there is an explicit agreement between the parties (Yagar v. Falvitz).

After the separation, the right to alimony may apply to a common law couple by virtue of “civil alimony” (Anonymous v. Anonymous).

• The right to tenant protection

The Tenant Protection Act [integrated version], 1972, states in Section 1 (Definitions Section):

“Partner” – including a common law partner

• The right to change one’s last name

The Names law, 1956, states as follows:

“An adult is authorized to change his or her last name and first name” (Section 10 of the law)

“The Minister can invalidate a name change … under Section 10 … If it is reasonable to assume that the new name is likely to mislead or harm public order or feelings. However, the Minister shall not invalidate a name change on the basis that the name was chosen in the wake of a common law relationship (Section 16 of the law).

When a common law couple has children and the man is married to another woman, the female partner can take the married partner’s last name; this is not to be viewed as harming public order, since the children’s welfare takes precedence over that of the married woman (Nezri v. the Commissioner of the Population Registry).

• Rights under additional laws

Common law couples also have rights under the following laws:

• The National Insurance Law [Integrated Version] 1995
• The State Service Law (retirement) (Integrated Version) 1970
• The Estate Tax Law, 1949
• The Disability Law (remuneration and rehabilitation), 1959 [integrated version]

Can a same-sex couple be recognized as a common law couple?

Same-sex couples can also be recognized as common law couples, as was determined in the ruling El Al Israel Airlines v. Danilovitz. It follows that same-sex couples who are recognized as common law couples enjoy all the rights we have described above.

A joint-life agreement to formalize the status of a common law couple

Given what we have said above regarding the recognition of common law couples and their resulting rights, couples who have been together for several months and perhaps even living together and sharing expenses are highly advised to write up a “joint-life agreement”. This agreement lays out their wishes regarding their status and various aspects of their life. Such an agreement can potentially save the couple much anguish, whether or not they are recognized as a common law couple, with all that implies.

A joint-life agreement is preferably approved by the Family Affairs Court to give it the authority of a court ruling. The Court’s authority to approve such an agreement is determined by Section 3 (c) of the Family Affairs Court Law, 1995.

Looking to write up a joint-life agreement? Our law offices are at your service

At our law offices you’ll meet attorneys who specialize in family law and are also certified as mediators. Our attorneys will accompany you throughout the process of writing up a comprehensive joint-life agreement that will meet all your needs.

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