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Husband and Wife as Co-owners of Immovable Property
Published online by Cambridge University Press: 12 February 2016
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Property relations between spouses have for many years been a domain which did not receive the proper and direct attention it deserved from the hands of the legislature.
Ottoman and Mandatory Periods: Under the Ottoman regime these matters were dominated by personal or religious law, as the case happened to be, and there was no law in existence which was applicable to all the inhabitants of die territory known as Palestine, irrespective of people's religious beliefs or formal religious affiliations.
The Mandatory authorities did not wish to interfere with the existing pattern. The Palestine Orders-in-Council 1922–1947, under arts. 51–67, accorded a special status to the religious courts of the various religious communities within the judiciary of Palestine. Not all religious courts enjoyed the same extent of jurisdiction but all exercised, in matters of personal status either exclusive jurisdiction over the members of their communities or concurrent jurisdiction together with the civil courts in those cases where all the parties to the action consented to such jurisdiction. “Personal status” as defined by art. 51 covered a wide range of matters some of them concerning the person as such and others concerning proprietary rights to which a person is entitled by reason of his personal status such as alimony, maintenance, succession.
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References
1 See Ginossar, S., “Israel Law: Components and Trends” (1966) 1 Is.L.R. 380.Google Scholar
2 See Shiloh, I., “Marriage and Divorce in Israel” (1970) 5 Is.L.R. 479.CrossRefGoogle Scholar
3 Drayton, , The Laws of Palestine, vol. III, p. 2569, as amended.Google Scholar
4 Sec. 11 of the Law and Administration Ordinance (1948) 1 L.S.I. 7, 9.Google Scholar
5 See Porush, M.K. of Agudat Israel (1969) Divrei HaKnesset 358–9.Google Scholar
6 See Draft Law—“The Individual and The Family” (Ministry of Justice, 1955) 18–21, Commentary, 96–99.
7 See sec. 11 (c) of the Succession Law, 1965, infra n. 25.
8 It may also be compared to the marriage agreement proposed by the Matrimonial Property Relations Bill, 1969, Hatza'ot Hok, no. 849 (14.7.69).
9 See sec. 11 (c) of the Succession Law, 1965, infra n. 25.
10 (1950) 5 L.S.I. 171.
11 Sec. 2 of the Women's Equal Rights Law states that “a married woman shall be fully competent to own and deal with property as if she were unmarried; her rights in property acquired before her marriage shall not be affected by her marriage”.
12 (1965) 19 L.S.I. 58. See Yadin, U., “Reflections on a New Law of Succession” (1966) 1 Is.L.R. 132.Google Scholar
13 (1953) 7 L.S.I. 139.
14 See Silberg, M., Personal Status in Israel (1957, in Hebrew) eh. 5.Google Scholar
15 See Yadin, U., “The Matrimonial Partnership (Matrimonial Property Relations Bill, 1969)” (1971) 6 Is.L.R. 106.Google Scholar
18 A similar technique was used in preparing the Law of Succession, 1965. A draft published by the Ministry of Justice as early as 1952 served as an instrument for sounding public opinion about the merits and disadvantages of the proposed law. See Yadin, U., “The Law of Succession and Other Steps Towards a Civil Code” Studies in Israel's Legislative Problems, XVI Scripta Hierosolymitana (Jerusalem, Magnes Press, 1966) 104Google Scholar. and Yadin, U., “Reflections on a New Law of Succession” (1966) 1 Is.L.R. 132.Google Scholar
17 The Names Law (1956) 10 L.S.I. 95Google Scholar; the Capacity and Guardianship Law (1962) 16 L.S.I. 106Google Scholar as amended in (1965) 19 L.S.I. 113; the Adoption of Children Law (1960) 14 L.S.I. 93Google Scholar; the Determination of Age Law (1963) 18 L.S.I. 7Google Scholar; the Family Law Amendment (Maintenance) Law (1959) 13 L.S.I. 73.Google Scholar
18 See below the Family Law Amendment (Maintenance) Law, 1959.
19 Hatza'ot Hok, no. 849 (14.7.69). See supra n. 8.
20 (1959) 13 L.S.I. 73.
21 The Contents of this law, too, were originally included in the 1955 Individual and Family Law Draft.
22 This is no longer correct and should have been amended to suit the provisions of chapter IV of the Succession Law, 1965. The legislature is invited to look into this matter.
23 (1965) 19 L.S.I. 58. See Yadin, U., “Reflections on a New Law of Succession” (1966) 1 Is.L.R. 132.Google Scholar
24 See supra n. 16.
25 Sec. 11 of the Succession Law reads as follows:
“11 (a) The spouse of the deceased takes the chattels which in the ordinary course and according to the circumstances belong to the common household, and from the remainder of the estate—
(1) Where the children of the deceased by a previous marriage inherit with the spouse—one quarter;
(2) Where the children of the deceased other than those mentioned in paragraph (1) or their issue or his parents inherit with the spouse—one half;
(3) Where the brothers or sisters or grandparents of the deceased inherit with the spouse—two thirds;
(4) Where other heirs on intestacy inherit with the spouse—five sixths;
(5) Where there are no other heirs—the whole.
(b) If at the death of the deceased the whole or the larger part in value of the property of the spouses was in their common ownership, the share of the spouse in the estate of the deceased shall in the circumstances set out in sub-section (a) paragraph (2) be one quarter.
(c) There shall be deducted from the spouse's share in the estate anything due to the spouse on a claim which arises out of the marital bond, including anything which the wife receives under the ketubah. This provision does not affect the right of the spouse to receive from the estate anything the deceased received on the occasion of the marriage upon condition to restore the same upon its termination”. Sec. 11 has already been the subject of litigation and comments by judges and jurists.
26 See Yadin, U., “Reflections on a New Law of Succession” (1966) 1 Is.L.R. 132 at 134Google Scholar: “The spouse's share varies from ¼ to ⅚ of the estate, depending on what relatives the deceased has left and whether or not the property of the spouses has been held by them in joint ownership”.
27 (1965) (II) 19 P.D. 240.
28 See the Succession Bill, 1958 in Hatza'ot Hok, no. 344, pp. 212, 235.Google Scholar
29 See a similar provision in sec. 9 of the Marital Property Relations Bill, 1969 in connection with the equalization of the spouses' shares after the termination of marriage. Hatza'ot Hok, no. 849 (14.7.69).
30 See Kister, J. in Briker v. Briker, (1966) (I) 20 P.D. 589.Google Scholar
31 Under the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953.
32 See Rosenzweig, Y.A., “Community Property” (1968) 1 Mishpatim 185.Google Scholar
33 For an English translation of the Law see (1970) 5 Is.L.R. 292.
34 See Hatza'ot Hok, no. 612 (15.6.64).
35 (1965) (II) 19 P.D. 240.
36 See supra n. 26.
37 See Hatza'ot Hok, no. 849 (14.7.69). See also Yadin, U.'s note on the Bill in (1971) 6 Is.L.R. 106.Google Scholar
38 See Yadin, U., “The Rule in Berger-Briker-Bareli” (1969) 25 HaPraklit 224.Google Scholar
39 Sec. 150 of the Law of Succession, 1965: “In matters of succession, art. 46 of the Palestine Orders-in-Council, 1922–1947 shall not apply.” Sec. 160 of the Land Law, 1969: “Art. 46 of the Palestine Orders-in-Council, 1922–1947 shall not apply in matters of immovable property.” Sec. 24 of the Law of Contract (Remedies on Breach of Contract) Law, 1970, Sefer HaHukim, no. 610 (24.12.70). See Yadin, U., “Again on the Interpretation of the Laws of the Knesset” (1970) 26 HaPraklit 190.Google Scholar See Weisman, J., “The Land Law, 1969: A Critical Analysis” (1970) 5 Is.L.R. 379CrossRefGoogle Scholar especially at 381–6 and note 32. See also Yadin, U., “Reflections on a new Law of Succession” (1966) 1 Is.L.R. 132, 141.Google Scholar
40 (1970) W.L.R. 255.
41 (1966) (I) 20 P.D. 589, 608.
42 In an earlier case Berinson J., also warned against the indiscriminate introduction into the Law of Israel of English statute law concerning bequests and the manage ment of estates. See The Executors of M. Yankovsky's Estate v. the Estate of L. Yankovsky (1956) 10 P.D. 1282, 1286.
43 Kahn-Freund, O., “Recent Legislation on Matrimonial Property” (1970) 33 Mod. L.R. 601.CrossRefGoogle Scholar
44 (1969) 2 W.L.R. 966, 980.
45 See Yadin, U., “The Matrimonial Partnership” (1971) 6 Is.L.R. 106.Google Scholar
46 In Zehava Hurwitz v. “Hashiryon” and others (1956) 12 P.M. 35, the District Court (Dr. Lamm) decided against the assumption of joint property for lack of evidence that the property (furniture) had been acquired by the joint efforts of the spouses. The Court held that the married state in itself did not warrant a conclusion that the property has been acquired by the spouses' joint effort and was therefore their joint property. Thus a creditor could place an attachment on the property to assure repayment by the husband of his debts and the wife had no say in the matter since she was not a co-owner of the property.
47 (1965) (II) 19 P.D. 240.
48 Berinson J. and Witkon J. formed the majority; Cohn J. dissenting.
49 See Denning, Lord, The Changing Law (1953)Google Scholar. See Scammell, E. H., “Matrimonial Assets” (1967) Current Legal Problems 120CrossRefGoogle Scholar and Margaret G. Buckley, “Equity Deserts the Wife” eod. loc. 144.
50 In this connection see art. 82 of the Ottoman Code of Civil Procedure, still in force in Israel, which states that “the provisions of art. 80 (regarding written evidence necessary to prove the existence of agreements) shall not apply and oral evidence shall be admissible … when the contracting parties are husband and wife …”
51 “Agreements such as these, as I say, are outside the realm of contracts altogether. The Common Law does not regulate the form of agreements between spouses. Their promises are not sealed with seals and sealing wax. The consideration that really obtains for them is that natural love and affection which counts for so little in these cold Courts” (Jansen v. Jansen [1965] 3 All E.R. 363, 365).
52 (1966) (I) 20 P.D. 589.
63 See, for example, Agranat J. on p. 600 of the judgment.
54 See Kister J. in Briker v. Briker, pp. 612–3 of the judgment.
55 The Briker case was distinguished from two English cases in which the facts were somewhat similar: Ashworth v. Outram (1877) 5 Ch.D. 923 and In re Worsley [1901] 1 K.B. 309. In both these cases businesses were bought and carried on either with the wife's money and for her benefit separately and merely with the husband's knowledge and consent or with the limited help on the part of the respective husbands in the carrying on of the businesses.
56 [1965] 1 All E.R. 44, 46.
57 (1969) 2 W.L.R. 966, 978.
58 See Rosenzweig, Y. A., “Community Property” (1968) 1 Mishpatim 185.Google Scholar
59 (1970) 3 W.L.R. 255.
60 (1969) 2 W.L.R. 966.
61 (1969)(I) 23 P.D. 393; (1970) 5 Is.L.R. 145.
62 Previous to the enactment of the Succession Law, 1965 land of the miri category could not be bequeathed by will and descended in accordance with the provisions of the Second Schedule of the Succession Ordinance, 1923 (Drayton, vol. II, Cap. 135, p. 1378, 1391). Sec. 149 of the new Law of Succession repealed “the special laws relating to land of the miri category”. Sec. 152 of the Land Law, 1969 abolished the categories of land existing until then in Israel as a relic of the Ottoman and Mandate administrations. See Yadin, U. (1966) 1 Is.L.R. 132 at 135Google Scholar; Weisman, J., “The Land Law, 1969: A Critical Analysis” (1970) 5 Is.L.R. 379 at 396 ff.CrossRefGoogle Scholar
63 See pp. 395–6 of the judgment.
64 (1970) (I) 24 P.D. 813. See Yadin, U., “Partnership between Spouses with Regard to Outsiders; What Next?” (1970) 26 HaPraklit 474.Google Scholar
65 A situation like the present one had been foreseen by Lavee, A., “Priority between the Equitable Owners and the Attachment by Creditors of the Property of the Registered Owner” (1969) 25 HaPraklit 300.Google Scholar
66 See supra n. 38.
67 (1971) (I) 25 P.D. 561.
68 See Witkon J. on p. 398 in the Bareli case. Lord Reid in Pettitt v. Pettitt (1969) 2 W.L.R. 966 expresses the same idea: “The whole question can only be resolved by Parliament and in my opinion there is urgent need for comprehensive legislation.” See Kahn-Freund, O., “Recent Legislation on Matrimonial Property” (1970) Mod. L.R. 601 at 605.CrossRefGoogle Scholar
69 The most one could say is that the wife has an equitable title to the land which is registered in the name of her husband. Under sec. 29 of the Partnership Ordinance (Drayton, Vol. 2, Cap. 103) partnership property which is land is to be held by the legal owners “in trust as far as necessary, for the persons beneficially interested in the land” under the provisions of that section. But marriage is not a partnership in the sense of the Ordinance under which a partnership is defined as the “relation which exists between persons carrying on a business in common with a view to profit”.
70 See Weisman, J., “The Land Law, 1969: A Critical Analysis” (1970) 5 Is.L.R. 379 at 382–6.CrossRefGoogle Scholar
71 These two observations refer to the situation after the coming into force of the new Land Law and it is only for reasons of convenience that they are mentioned here already. They may serve as a transition to Part II of this article.
72 (1970) 5 Is.L.R. 292.
73 A similar idea appears in the first chapter of the Matrimonial Property Relations Bill, 1969 under which a marriage agreement is recommended though not made compulsory. See Yadin, U., “The Matrimonial Property Relations Bill, 1969 (1971) 6 Is.L.R. 106.Google Scholar
74 See Berinson, J. in Bareli v. Director of Estate Duty (1969) (I) 23 P.D. 393 at 395Google Scholar: “Legal transactions undertaken in the ordinary course (of business?) by the registered owner or by the person legally in possession is valid and binding even when the other spouse's consent to it has not been obtained. It is not for the third party to inquire about the marital status of the person with whom he deals, and if that person be married, what his marriage is like and whether the spouse's consent to the transaction has been given. If there is no reason to doubt it, it may be assumed that the transaction has been entered into with the other spouse's knowledge even if he or she have not given their express permission for the transaction.”
75 Musha' is land held in common in undivided shares by several co-owners. It is more common in the villages than in towns though any immovable property can be owned in undivided shares.
76 See Weisman, J., The Condominium Law: A Study of its Operation (Institute for Legislative Research and Comparative Law, Hebrew University of Jerusalem, 1970).Google Scholar
77 See Kahn-Freund, O., “Recent Legislation on Matrimonial Property” (1970) 33 Mod. L.R. 601.CrossRefGoogle Scholar
78 (1969) 2 W.L.R. 966.
79 (1970) 3 W.L.R. 255.
80 One single instance of a statutory provision of land to be held in trust for the persons beneficially interested is to be found in sec. 29 of the Partnership Ordinance (Drayton, vol. 2, Cap. 103).
81 For a survey of developments leading to the recognition in Palestine of equitable rights to land see Doukhan-Landau, L., Equitable Rights to Land (Jerusalem, 1968).Google Scholar
82 See Weisman, J., “The Land Law, 1969: A Critical Analysis” (1970) 5 Is.L.R. 379 at 383.CrossRefGoogle Scholar
83 The right of pre-emption has been salvaged from the law which preceded the new Land Law. Ottoman Land Law maintained a right of pre-emption between co-owners of immovable property, whoever they might happen to be, owners of adjoining immovable property and co-owners of servitudes. The present Land Law has retained the right of pre-emption only among heirs (sec. 100) and spouses (sec. 101) but of course there is nothing to prevent the owner of immovable property or owner of an unspecified share in immovable property from voluntarily binding himself by a pre-emption agreement towards any person (sec. 99).
84 Basic Law: Israel Lands; Israel Lands Law, 1960 and Israel Lands Administration Law (1960) 16 L.S.I. 48 ff.Google Scholar
85 See Weisman, J., “The Land Law, 1969: A Critical Analysis” (1970) 5 Is.L.R. 379.CrossRefGoogle Scholar See also L. Doukhan-Landau, “The Land Law, 1969” (1970) 26 HaPraklit 101 at 110.
86 Yuval Levi, The Trustee in Bankruptcy of Bezalel Goldberg v. Shoshana Goldberg (1970) (I) 24 P.D. 813 at 820.
87 Hatza'ot Hok, no. 849 (14.7.69). See Yadin, U.: “The Matrimonial Property Relations Bill, 1969” (1971) 6 Is.L.R. 106Google Scholar; and “Partnership between Spouses with Regard to Outsiders; What Next?” (1970) 26 HaPraklit 474.
88 (1970) (I) 24 P.D. 813.
89 See comment on sec. 12 (b) on p. 336 of Hatza'ot Hok, no. 849 (14.7.69): “The formal ownership, as such, is not conclusive …”
90 U. Yadin points out to the difference between immovable and other property in his note on the Goldberg case in (1970) 26 HaPraklit 474 at 477.
91 Yadin, U. in “The Matrimonial Property Relations Bill, 1969” (1971) 6 Is.L.R. 106 at 111.Google Scholar
92 Though under sec. 7 (3) debts are to be deducted from property subject to equalization.
93 Other flexible provisions under the Bill are those contained in sees. 3 and 9.