How can a gift or inheritance be protected in the event of a divorce?
How to divide the joint property within the framework Divorce Procedure, between spouses who have not entered into a legal financial agreement that regulates in detail the manner of dividing their property, is subject to two different methods: the rule of sharing – which applies to spouses who married before January 1, 1974, and the arrangement of balancing resources – which applies to spouses who married after this date, in accordance with the provisions of the Financial Relations Law.
The common rule for these two methods is that ultimately, the value of the joint property will be divided equally between the parties, regardless of which spouse’s name it is registered in.
The rule of excluding external assets from the application of joint property
In principle, the joint property subject to division by the parties does not include gifts and/or Inheritances received by one of the spouses during the marriage, as well as assets accumulated by one of the spouses before the marriage.
This is what was determined in the ruling regarding the division of property in accordance with the rule of partnership, and this is also determined in Section 5(a)(1) Law Financial Relations Regarding the division of property according to a resource balancing arrangement.
The reason for excluding these assets, which were named in the ruling External assets (A.A. 4151/99 Brill n Brill), stems from the law’s recognition of the fact that someone who seeks to give or bequeath their property to one of the spouses, who are usually their parents, did not generally intend that that property, for which they have often worked for many years, would go to the person from whom that spouse seeks a divorce.
The exception to the rule regarding the exclusion of external assets
Despite the above, the Supreme Court ruled that there is no obstacle to the “external” assets being included within the framework The common property, and this is if it is explicitly proven that the parties had a shared intention regarding these assets as well.
It was further ruled that the burden of proof lies with the one who claims the intention to share in the same property, with each case being examined according to its specific circumstances.RA 8672/00 Abu Rumi v. Abu Rumi, RA 7687/04 Sasson v. Sasson).
In most cases in which the courts accepted the claim of partnership, it was proven that financial investments were made in the external property by the spouse claiming partnership, which improved the property, thereby indicating the spouses’ intention to create partnership with respect to it (1398/11 Anonymous v. So-and-so).
At the same time, within the framework TAMSH 8575-01-10 L.A. N. L.Y., it was determined that making financial investments to improve the property does not constitute a necessary condition for proving the intention to share in an external property.
It was further determined that such intent can also be expressed in promises and active representations that may lead to reliance on the part of the spouse claiming co-ownership and establish a claim of impediment to the other spouse, and certainly also in the case where active deception is committed by the other spouse that borders on fraud.
On the other hand, when it is proven that the spouse who inherited or received the assets as a gift was careful to keep them separate from the parties’ joint conduct over the years, and did not even bother to provide the other spouse with information and details regarding the assets and/or the actions taken with respect to them – then it will be determined that no intention to share was created regarding them.
The court further determined that if, for example, the case were in which the spouse shared with the other spouse information about the property he inherited or received as a gift, in such a way that the other spouse would prove that he knew all the property that the other spouse had accumulated as a result of a gift or inheritance, how the property was accumulated, and would even add that he was promised that that property would be divided between the parties, then it would seem that such testimony would allow the application of the joint property even to the party who did not receive the property, did not invest money in it, and did not improve it.
Read more: Dissolution Sharing of real estate in divorce proceedings
A few words in conclusion…
If a spouse received assets as a gift or inheritance during their marriage, and wishes to protect them in such a way that they will be included in the joint property if, God forbid, they divorce their spouse, they must take a series of measures to this end, which will ensure and prove in due course that no intention of sharing them with the other spouse was created on their part.
Thus, for example, the spouse must ensure that if the property is registered, such as an apartment or a car, then the property will be registered in his name only, and if it is money, then it will be deposited in a bank account registered in his name only, and not in a joint bank account, or in a safe that belongs to him alone, to which only he has the necessary access and its encrypted code details.
Also, if an asset is received in which money can be invested and improved, such as real estate, the spouse must ensure that the other spouse does not invest any money in that asset, nor improve it in any way..
In addition, it is advisable that that spouse refrain from providing the other spouse with any information about these assets, and completely distance him or her from any information or activity related to these assets.
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