Scope of the term \u201ccommon law couple\u201d<\/strong><\/h4>\n![\"Common](\"https:\/\/lawfirmbackup_200125.k1uagm.ap-southeast-2.wpstaqhosting.com\/wp-content\/uploads\/2018\/12\/adult-affection-care-1251177-150x150.jpg\")
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.<\/p>\n
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\u2019 needs.<\/p>\n
\u201cCommon law couple\u201d is not a status \u00a0<\/strong><\/h4>\nThe institution of marriage creates a status for three reasons:<\/p>\n
\n- The state grants \u201crecognition\u201d to marriage, in the form of registration, from a desire to protect the family unit.<\/li>\n
- Marriage has a universal quality, and is valid anywhere in the world (legal authorities, etc.).<\/li>\n
- 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.<\/li>\n<\/ul>\n
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.<\/p>\n
Fundamentals of recognition as a common law couple<\/strong><\/h4>\nThere are two conditions which, if fulfilled, mean that the couple can be recognized as a common law couple:<\/p>\n
\n- Family life<\/u><\/li>\n<\/ul>\n
\u201cIntimate 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\u201d (Nasis v. Yuster)<\/p>\n
\n- Joint household<\/u><\/li>\n<\/ul>\n
\u201cA 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\u201d (Nasis v. Yuster)<\/p>\n
Over the years, the Court\u2019s rulings have provided guidelines which help in determining whether these fundamental conditions do in fact exist. The guidelines are as follows:<\/p>\n
\n- Duration of the relationship<\/u><\/li>\n<\/ul>\n
How long has the couple been together? Even three months is long enough to be recognized as a common law couple (Amir v. Zeger).<\/p>\n
\n- Joint residence<\/u><\/li>\n<\/ul>\n
A couple who is living together is considered to fulfill the second principle, \u201cjoint household\u201d, unless proven otherwise (Bar Nahor v. estate of the late Austerlitz).<\/p>\n
\n- Marital relations and monogamy<\/u><\/li>\n<\/ul>\n
Part of the first principle, \u201cfamily life\u201d, 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.<\/p>\n
\n- Mutual intent regarding the relationship<\/u><\/li>\n<\/ul>\n
The couple\u2019s 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).<\/p>\n
\n- Economic cooperation<\/u><\/li>\n<\/ul>\n
The existence of an economic \u201cjoint household\u201d means sharing the costs of food, drink, and clothing, and not sharing purchases of property (Alon v. Mandelson).<\/p>\n
Rights of common law couples<\/strong><\/h4>\nIf a couple is recognized as a common law couple, each partner has various rights. We will highlight a few of them:<\/p>\n
\n- Right of inheritance<\/a> (if the following five criteria are met)<\/li>\n
- A man and a woman (the right does not apply to same-sex couples)<\/li>\n
- Family life<\/li>\n
- Joint household<\/li>\n
- The partners are not married to each other<\/li>\n
- At the time of death of the testator, neither partner is married to someone else<\/li>\n<\/ul>\n
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.<\/p>\n
\n- \n
Rights in dividing up property<\/u><\/h5>\n<\/li>\n<\/ul>\n
When a common law couple separates, the \u201cShared Property Presumption<\/a>\u201d is applied to them in dividing up the property.<\/p>\n\n- \n
The right to alimony from the partner<\/u><\/h5>\n<\/li>\n<\/ul>\n
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).<\/p>\n
After the separation, the right to alimony may apply to a common law couple by virtue of \u201ccivil alimony\u201d (Anonymous v. Anonymous).<\/p>\n
\n- \n
The right to tenant protection<\/u><\/h5>\n<\/li>\n<\/ul>\n
The Tenant Protection Act [integrated version], 1972, states in Section 1 (Definitions Section):<\/p>\n
\u201cPartner\u201d \u2013 including a common law partner<\/p>\n
\n- \n
The right to change one\u2019s last name<\/u><\/h5>\n<\/li>\n<\/ul>\n
The Names law, 1956, states as follows:<\/p>\n
\u201cAn adult is authorized to change his or her last name and first name\u201d (Section 10 of the law)<\/p>\n
\u201cThe Minister can invalidate a name change \u2026 under Section 10 \u2026 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<\/u> (Section 16 of the law).<\/p>\n
When a common law couple has children and the man is married to another woman, the female partner can take the married partner\u2019s last name; this is not to be viewed as harming public order, since the children\u2019s welfare takes precedence over that of the married woman (Nezri v. the Commissioner of the Population Registry).<\/p>\n
\n- \n
Rights under additional laws<\/u><\/h5>\n<\/li>\n<\/ul>\n
Common law couples also have rights under the following laws:<\/p>\n
\n- The National Insurance Law [Integrated Version] 1995<\/li>\n
- The State Service Law (retirement) (Integrated Version) 1970<\/li>\n
- The Estate Tax Law, 1949<\/li>\n
- The Disability Law (remuneration and rehabilitation), 1959 [integrated version]<\/li>\n<\/ul>\n
Can a same-sex couple be recognized as a common law couple?<\/strong><\/h4>\nSame-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.<\/p>\n
A joint-life agreement to formalize the status of a common law couple<\/strong><\/h4>\nGiven 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 \u201cjoint-life agreement<\/a>\u201d. 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.<\/p>\n
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.<\/p>\nThe institution of marriage creates a status for three reasons:<\/p>\n
- \n
- The state grants \u201crecognition\u201d to marriage, in the form of registration, from a desire to protect the family unit.<\/li>\n
- Marriage has a universal quality, and is valid anywhere in the world (legal authorities, etc.).<\/li>\n
- 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.<\/li>\n<\/ul>\n
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.<\/p>\n
Fundamentals of recognition as a common law couple<\/strong><\/h4>\n
There are two conditions which, if fulfilled, mean that the couple can be recognized as a common law couple:<\/p>\n
- \n
- Family life<\/u><\/li>\n<\/ul>\n
\u201cIntimate 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\u201d (Nasis v. Yuster)<\/p>\n
- \n
- Joint household<\/u><\/li>\n<\/ul>\n
\u201cA 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\u201d (Nasis v. Yuster)<\/p>\n
Over the years, the Court\u2019s rulings have provided guidelines which help in determining whether these fundamental conditions do in fact exist. The guidelines are as follows:<\/p>\n
- \n
- Duration of the relationship<\/u><\/li>\n<\/ul>\n
How long has the couple been together? Even three months is long enough to be recognized as a common law couple (Amir v. Zeger).<\/p>\n
- \n
- Joint residence<\/u><\/li>\n<\/ul>\n
A couple who is living together is considered to fulfill the second principle, \u201cjoint household\u201d, unless proven otherwise (Bar Nahor v. estate of the late Austerlitz).<\/p>\n
- \n
- Marital relations and monogamy<\/u><\/li>\n<\/ul>\n
Part of the first principle, \u201cfamily life\u201d, 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.<\/p>\n
- \n
- Mutual intent regarding the relationship<\/u><\/li>\n<\/ul>\n
The couple\u2019s 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).<\/p>\n
- \n
- Economic cooperation<\/u><\/li>\n<\/ul>\n
The existence of an economic \u201cjoint household\u201d means sharing the costs of food, drink, and clothing, and not sharing purchases of property (Alon v. Mandelson).<\/p>\n
Rights of common law couples<\/strong><\/h4>\n
If a couple is recognized as a common law couple, each partner has various rights. We will highlight a few of them:<\/p>\n
- \n
- Right of inheritance<\/a> (if the following five criteria are met)<\/li>\n
- A man and a woman (the right does not apply to same-sex couples)<\/li>\n
- Family life<\/li>\n
- Joint household<\/li>\n
- The partners are not married to each other<\/li>\n
- At the time of death of the testator, neither partner is married to someone else<\/li>\n<\/ul>\n
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.<\/p>\n
- \n
- \n
Rights in dividing up property<\/u><\/h5>\n<\/li>\n<\/ul>\n
When a common law couple separates, the \u201cShared Property Presumption<\/a>\u201d is applied to them in dividing up the property.<\/p>\n
- \n
- \n
The right to alimony from the partner<\/u><\/h5>\n<\/li>\n<\/ul>\n
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).<\/p>\n
After the separation, the right to alimony may apply to a common law couple by virtue of \u201ccivil alimony\u201d (Anonymous v. Anonymous).<\/p>\n
- \n
- \n
The right to tenant protection<\/u><\/h5>\n<\/li>\n<\/ul>\n
The Tenant Protection Act [integrated version], 1972, states in Section 1 (Definitions Section):<\/p>\n
\u201cPartner\u201d \u2013 including a common law partner<\/p>\n
- \n
- \n
The right to change one\u2019s last name<\/u><\/h5>\n<\/li>\n<\/ul>\n
The Names law, 1956, states as follows:<\/p>\n
\u201cAn adult is authorized to change his or her last name and first name\u201d (Section 10 of the law)<\/p>\n
\u201cThe Minister can invalidate a name change \u2026 under Section 10 \u2026 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<\/u> (Section 16 of the law).<\/p>\n
When a common law couple has children and the man is married to another woman, the female partner can take the married partner\u2019s last name; this is not to be viewed as harming public order, since the children\u2019s welfare takes precedence over that of the married woman (Nezri v. the Commissioner of the Population Registry).<\/p>\n
- \n
- \n
Rights under additional laws<\/u><\/h5>\n<\/li>\n<\/ul>\n
Common law couples also have rights under the following laws:<\/p>\n
- \n
- The National Insurance Law [Integrated Version] 1995<\/li>\n
- The State Service Law (retirement) (Integrated Version) 1970<\/li>\n
- The Estate Tax Law, 1949<\/li>\n
- The Disability Law (remuneration and rehabilitation), 1959 [integrated version]<\/li>\n<\/ul>\n
Can a same-sex couple be recognized as a common law couple?<\/strong><\/h4>\n
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.<\/p>\n
A joint-life agreement to formalize the status of a common law couple<\/strong><\/h4>\n
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 \u201cjoint-life agreement<\/a>\u201d. 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.<\/p>\n
- \n
- \n
- \n
- \n
- Right of inheritance<\/a> (if the following five criteria are met)<\/li>\n
- Economic cooperation<\/u><\/li>\n<\/ul>\n
- Mutual intent regarding the relationship<\/u><\/li>\n<\/ul>\n
- Marital relations and monogamy<\/u><\/li>\n<\/ul>\n
- Joint residence<\/u><\/li>\n<\/ul>\n
- Duration of the relationship<\/u><\/li>\n<\/ul>\n
- Joint household<\/u><\/li>\n<\/ul>\n
- Family life<\/u><\/li>\n<\/ul>\n