Lawyers
The dissolution of a shared residential apartment
After a divorce, the question of who owns the shared apartment typically arises. In most cases, the issue is resolved in the divorce agreement or in the judgment. The legal instrument used in this separation is called a ‘dissolution of partnership’ in which at the end of the process, the spouses cease to be partners. In this section we will discuss significant aspects of marriage dissolution between spouses
מאת עו״ד ונוטריון יגאל מור
דיוק בייעוץ המשפטי. מצויינות בליווי המשפטי.
The Israeli law permits joint ownership of assets. It is therefore possible for two or more people to own movable assets as well as immovable assets, such as residential apartments, undeveloped areas, and offices, jointly. According to the Land Law (5579 – 1969), it is presumed that the shares of two partners in the property are equal, namely, unless otherwise agreed, the shares of the two spouses in the apartment are equal. However, each sharing may be determined and designed in accordance with the wishes of the partners by means of a partnership agreement that can govern the division of the property, carrying maintenance payments, as well as defining the rights of each individual partner.
Additionally, the law provides for the dissolution of a partnership at any time and details two main methods for doing so.
There are, however, several complexities when it comes to dissolving a shared apartment where a family lived. These arise from the effect on the condition and well-being of the children. This process differs from that of dissolving a purely business partnership.
How is sharing unbundled?
In accordance with the Land Law, two main methods are available for dissolving a partnership:
- At the end of the litigation, the court may order the property to be sold to a third party so that neither partner retains ownership of the property. If it is a residential apartment owned by a couple with children, section 40a of the law states that the apartment will not be sold unless the couple’s children and spouse have been promised a residential facility suitable for their needs. An individual or partnership may sell the property to another, among other things. Consequently, one of the spouses can purchase the other spouse’s share of the property and increase his rights to the property in exchange for payment.
2. Liquidation by division of the assets; In our case, this option is less relevant, since the planning and construction laws normally do not permit the division of a residence into two units. Assuming this option is applicable, and it appears that one spouse received a portion of the property that is not equal to the other spouse’s share, the court may order balancing payments to restore the balance resulting from the dissolution of the partnership.
Filing a claim for partnership dissolution
In accordance with real estate law, partners in a property may dissolve their partnership at any time. However, when it is an apartment occupied by spouses living with children, the court may give specific instructions to ensure the safety of the children and the possession of a roof over their heads. As an example, the court may determine that the proceeds from the sale will be transferred to a third party (trustee) who will hold them and use them to provide shelter for the children of the couple.
"40a. (a) The court decided according to section 40, on the dissolution of the sharing of joint real estate, which is an apartment shared by spouses used for their residence, through sale, it will not order its execution and the sale will be delayed, as long as the court is unaware that the minor children of the spouses and the spouse who owns them, together, are in need of another living arrangement that meets their needs. An interim arrangement for temporary living, suitable for their needs, will be developed for a period of time to be determined. …".
In addition, the court may consider whether the order on dissolution of the partnership at the time of the filing of the claim is beneficial to the settlement of all issues between the spouses or whether it harms the balance between them and may disadvantage one of them.
As a matter of fact, President A. Barak insisted on this in the case RA 4358/01 Aviva Bar-El v. Yosef Bar-El
The proper approach is that the court should be allowed a margin of judicial flexibility when it comes to deciding the best way to resolve the conflict between the litigants before it. Therefore, if the family court wishes to achieve a situation where all the matters of the couple will be comprehensively resolved, it may, under appropriate circumstances, delay the dissolution order on the shared apartment between the spouses."
In actuality
As noted above, the dissolution of sharing in the family residential apartment is not subject only to the laws of dissolution of sharing established by the Land Law, but also to family law and must take into account the different needs of the spouses and especially the children. Consequently, the sale or dissolution of the partnership must be analyzed in light of the considerations included in the divorce agreement. The balance of the transactions may differ from that obtained from a dissolution agreement for a business partnership.
For example, if it was necessary to divide the proceeds of a shared property, worth NIS 2,000,000, which is not used as a residence and is jointly owned by two individuals who are not spouses, the proceeds would be equally distributed. The court will balance the distribution of the proceeds from the sale of the apartment differently than if the proceeds were distributed in accordance with the ownership key, since spouses have a complicated economic relationship that involves ownership of additional assets such as entitlement to grants, compensations and allowances, movable assets and the burden of alimony.
Actions taken without the consent of the spouses
The dissolution of a partnership is usually accomplished through the sale of the property, but the sale is supervised by the court. As long as the spouses are able to cooperate with each other and sell the property themselves, the dissolution of the partnership will be completed in this manner. If they are unable to reach an agreement (and in most cases, at least one spouse has an interest in delaying the sale of the property), the court may appoint the lawyers of the parties as receivers. It is subject to the rationale of expediting the divorce process and settling the set of issues arising from the divorce agreement on an individual basis.
Application for a specific section pursuant to personal law
Family law in the State of Israel is a combination of civil and religious law divorce (to the Jews) can be done ooonly within the rabbinical court , Whereas the economic aspect of the divorce agreement can be settled in the Rabbinical Court or the Family Court.
According to Jewish law, a husband who divorces his wife for an unjustified reason may not remove her from her permanent residence and transfer her to a less desirable location (“She goes up with him and does not go down“). The Halacha considers moving from a jointly owned residence to a rented apartment as a reduction under the conditions to which the woman is entitled. Thus, the Rabbinical Court may prohibit the dissolution of a partnership by the sale of a shared apartment, in order to ensure that the conditions of the divorcing partner are met.
According to this halacha, for a specific section, the husband is required to pay alimony and to provide for his children, and it applies only when the divorce is not justified from the perspective of the wife.
Based on Hebrew law, a wife is entitled to a specific section, which means she may continue to live in the house where she lived with her husband throughout their lives together. According to the inscription signed by the husband as part of the religious marriage procedure, this right is a part of the woman’s right.
It is important to say that This relief can only be granted in the Rabbinical Court, while the Family Court, which judges according to “secular law”, does not grant such relief. Further, this remedy is only available to women under religious law, while men are not eligible.
In what manner should things be conducted? Due to the fact that the right to a specific section is not recognized in civil law, it is necessary for a woman to submit an application for a specific section to the Rabbinical Court rather than to the Family Court if she wishes to remain in the current residential apartment.
Considering the significant significance of this difference, it is extremely important to consult with professionals with experience in divorce and family law, in order to obtain guidance from the planning stage of the divorce procedure, since forethought and a correct divorce strategy have an impact on the entire process.
In Conclusion
Consultation with a family and divorce lawyer regarding career assets
As part of the divorce proceedings, the issue of separating the residence and apartment shares is an essential consideration. This is both from a sensitive standpoint and from a legal and commercial
We recommend that you use a family lawyer whose office has a real estate department to ensure your rights are protected.
Adv. Mor & Co.’s family law department has a great deal of experience assisting divorce cases. Providing our clients with sensitivity and personal accompaniment while adhering to professionalism are the values that guide the office in family cases.
As we have extensive experience in the legal handling of divorce cases, we undertake to do our best and make available to our clients our rich experience, while being careful in all matters related to the legal process and taking care of your interests.
We invite you to contact us for legal advice on matters related to divorce / dissolution of shared housing during divorce by calling 02-595-3322 or by contacting us via WhatsApp at 050-811-6181.
